Tag: Litigation Practice

McDonald v Secretary of State for Scotland: IHCS 2 Feb 1994

The pursuer, a prisoner, complained that he had been subject to repeated searches which he claimed were illegal. He sought damages and an injunction.
Held: The action which the pursuer had raised was an ordinary action in the sheriff court was an action against the Crown, that section 21 of the 1947 Act applied and that the crave for interdict was incompetent. The 1947 Act deprived Scottish litigants of their previous right to obtain interdict and interim interdict against the Crown. Orders to that effect could not be pronounced in either the sheriff court or the Court of Session. An House of Lords decision on an action against a state was not necessarily binding in Scotland. There were formidable difficulties in the way of a submission that the decision in M v The Home Office could be followed in Scotland, on the view that application to the supervisory jurisdiction of the Court of Session in an application for judicial review under Rule of Court 260B of the Rules of the Court of Session 1965 did not constitute civil proceedings within the meaning of section 21.
Lord Justice Clerk Ross
Times 02-Feb-1994, 1994 SC 234
Crown Proceedings Act 1947 21
Citing:
Appeal from – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .

Cited by:
Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Appealed to – McDonald v Secretary of State for Scotland ScSf 1994
The pursuer was a serving prisoner. He said he had been repeatedly searched without lawful authority, warrant or justifiable cause. He raised an action of reparation in the sheriff court in which he sought damages from the Secretary of State for . .
Cited – Petition of Andrew Scott and Scott Davidson for Judicial Review of A Decision To Continue Their Detention In Inhumane Prison Conditions SCS 26-Oct-2001
Each applicant sought an interim order against the Scottish Minister with respect to their treatment in prison. It had been found that the conditions in Barlinnie Prison were inhumane. The Crown responded that the court had no jurisdiction to make . .
Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Updated: 26 October 2021; Ref: scu.83524

F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry: HL 1975

No Indemnity for misadministration

The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages.
Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant ‘cannot be compelled to give an undertaking but if he will not give it he will not get the injunction.’
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: ‘The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages.’ and ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’
. . ‘In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects).’
Lord Diplock, Lord Reid, Lord Wilberforce
[1975] AC 295, [1974] 2 All ER 1128, [1974] 3 WLR 104
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2), Monopolies and Mergers Act 1965
England and Wales
Cited by:
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government (or, indeed, anyone else) can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187068

Rendall v Blair: 1890

Where a statute requires leave to commence proceedings to be granted, a failure to obtain such consent does not automatically render the proceedings a nullity.
Bowen LJ said: ‘this section is not framed in the way in which sections are framed when it is intended that some preliminary steps should be taken before the action is maintainable at all’ and ‘It directs what ought to be done. Unless the duty is complied with by the litigant the court must hold its hand. But it does not oblige the court to close the gates of mercy upon the applicant, but enables it to stay proceedings until that consent, which as a matter of duty ought to be obtained in the first instance, is obtained at last.’
The legislature knows well enough how to provide that leave shall be a strict condition precedent to valid proceedings being issued and that clear words are to be used if that is intended, words perhaps even requiring a provision for the dismissal of the proceedings if the condition precedent is not satisfied. Without some such clear language being used the provision can be taken to be directory.
Bowen LJ
(1890) 45 Ch D 139
Charitable Trusts Act 1853 17
Cited by:
Considered – In re Saunders (A Bankrupt) ChD 1997
Very emphatic language was required in a statute before want of leave should, without more, result in proceedings being treated as a nullity. Leave could in appropriate circumstances be granted after the event notwithstanding the proceedings had . .
Cited – Seal v Chief Constable of South Wales Police CA 19-May-2005
Mr Seal noisily objected to a neighbour blocking in his car. Police were called who took him into custody under the 1983 Act. He was released several days later, and eventually sought damages for his wrongful treatment. He had failed to first seek . .
Cited – Seal v Chief Constable of South Wales Police HL 4-Jul-2007
The claimant had sought to bring proceedings against the respondent, but as a mental patient subject to the 1983 Act, had been obliged by the section first to obtain consent. The parties disputed whether the failure was a procedural or substantial . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.226024

P v T Ltd: ChD 7 May 1997

A order for the disclosure of documents can be proper if it is the only method of founding proceedings against a third party, even though there might be no sufficient proof without the documents. An order was made because it was necessary in the interests of justice albeit that the claimant was not able to identify without discovery what would be the appropriate cause of action. In extreme circumstances, it was legitimate to exercise the power for disclosure in a case where not only the name of the tortfeasor but the full nature of the suspected tort was unknown.
Sir Richard Scott V-C
Times 07-May-1997, [1997] 1 WLR 1309, [1997] 4 All ER 200
England and Wales
Cited by:
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Gregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
Cited – Axa Equity and Life Assurance Plc Society Plc and others v National Westminster Bank Plc and others CA 7-May-1998
Discovery of documents from third parties. Morritt LJ said that an order might be made where the party holding the documents could be said to have involvement in terms of ‘causing or facilitating’ the wrong. . .
Cited – Financial Times Ltd and others v Interbrew SA CA 8-Mar-2002
The appellants appealed against orders for delivery up of papers belonging to the claimant. The paper was a market sensitive report which had been stolen and doctored before being handed to the appellant.
Held: The Ashworth Hospital case . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.84530

Macnaughton v Macnaughton’s Trustees: IHCS 1953

It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The Courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.’
Lord Justice-Clerk Thomson
[1953] SC 387
Scotland
Cited by:
Cited – Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another HL 26-Jun-2003
Limit to Declaratory Refilef as to Future Acts
The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the . .
Cited – British American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
Cited – Clarke v Fennoscandia Ltd and others (Scotland) HL 12-Dec-2007
After being awarded costs in proceedings in the US, the defendants chased the claimant for their costs in Scotland. He sought an interdict saying that the judgment had been obtained by fraud. The defendant had give an undertaking not to pursue the . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.184054

Trafigura Beheer Bv v Kookmin Bank Co: ComC 27 Jul 2006

Application for a post-trial anti-suit injunction restraining proceedings brought by the defendant (‘Kookmin’) in Seoul Central District Court.
Field J
[2006] EWHC 1921 (Comm), [2007] 1 Lloyds Rep 669
Bailii
England and Wales
Citing:
See Also – Trafigura Beheer Bv v Kookmin Bank Co ComC 5-Aug-2005
Entitlement to anti-suit injunction. . .
Cited – Trafigura Beheer Bv v Kookmin Bank Co ComC 16-Jun-2006
The defendant bank had given the claimant a letter of credit, but when the goods under transport were discharged without the bills of lading,and the buyers became insolvent, the bank refused to pay. There had been proceedings in Korea, but the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.245436

Heaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited: ChD 27 May 1999

Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that settlement.
Times 19-Jul-1999, [1999] EWHC Ch 229
Bailii
England and Wales
Cited by:
Appeal from – Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another CA 19-May-2000
Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.136036

Heaton and others v AXA Equity and Law Life Assurance Society Plc and Another: CA 19 May 2000

Where a claimant had settled one claim with one of two joint tortfeasors on an issue which also concerned the action against the second, it was a matter for interpretation of that settlement as to whether or not the claimant could continue the action against the remaining defendant. In such an action where the claimant had received full compensation the defendant in the second action could seek a contribution from the defendant in the first.
Times 07-Jun-2000, [2000] EWCA Civ 164, [2000] 3 WLR 1341, [2001] Ch 173, [2001] CP Rep 10, [2000] 4 All ER 673, [2000] CPLR 505
Bailii
Civil Liability (Contributions) Act 1978
England and Wales
Citing:
Cited – Jameson and Another v Central Electricity Generating Board and others HL 16-Dec-1998
A joint tortfeasor’s concurrent liability was discharged entirely by a full and final settlement and compromise of the claim against the other tortfeasor if in respect of the same harm. A dependency claim made by the claimant’s executors could not . .
Appeal from – Heaton and Others v Axa Equity and Law Life Assurance Society Plc and Axa Equity and Law Unit Trust Managers Limited ChD 27-May-1999
Where a plaintiff settled a claim against one of two defendants, the court would be ready to look carefully at the full details of the settlement to see whether or not the co-defendant was intended also to be released by or under the terms of that . .

Cited by:
Appeal from – Heaton and Others v AXA Equity and Law Life Assurance Society plc and Another HL 25-Apr-2002
The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.
Updated: 10 October 2021; Ref: scu.147197

Ropac Ltd v Inntrepreneur Pub Co and Another: ChD 7 Jun 2000

There had been a consent order in the terms of an unless order giving the landlord an order for possession unless the tenant paid sums by a certain date, time being of the essence. The order was not complied with and the tenant applied for a retrospective extension of time to comply with the order.
Held: The court retained the power to grant an order for extension of time even though the parties had previously agreed the terms of an ‘unless’ consent order and it had expressed time to be of the essence. The court’s case management powers had to be read in the light of the overriding objective as expressed in the Rules. Under the RSC the order in the case before him was in sufficiently clear terms to be a binding consent order with which the court would only have interfered in circumstances which would justify interference with a contract. Under the CPR however, the court had jurisdiction to extend time: ‘To my mind, the CPR therefore gives the Court rather more wide- ranging, more flexible powers than the RSC. In my judgment, those powers are to be exercised not merely to do justice between the parties, but in the wider public interest. Further, the objective to deal with a case justly must, as I see it, sometimes (albeit rarely) require the court to override an agreement made between the parties in the course of, and in connection with, the litigation. I consider that this means that the court has greater power to interfere than before. Having said that, I should add this. Where the parties have agreed in clear terms on a certain course, then, while that does not take away its power to extend time, the court should, when considering an application to extend time, place very great weight on what the parties have agreed and should be slow, save in unusual circumstances, to depart from what the parties have agreed.’
Neuberger J set out the process he had to apply to to extend time in respect of a consent order. He said at: ‘First, at least in general, if the order was a genuine consent order, that is representing a contractual agreement between the parties, and stated that, if a party did not do something within a specified time, then his claim or defence would be struck out or that there would be some other sanction, that represented a contract with which the court had no power to interfere, save in circumstances in which the court has power to interfere with a contract. That seems to me to be the effect of the judgments in Purcell v FC Trigell Limited [1971] 1 QB 359 – see at 365G per Winn LJ and 366D per Buckley LJ .’
Neuberger J
Times 21-Jun-2000, Gazette 29-Jun-2000, [2001] LandTR 10
Civil Procedure Rules 81
England and Wales
Citing:
Cited – Purcell v F C Trigell Ltd CA 1971
The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law. A consent order derives its authority from the contract made between the parties. . .
Cited – Siebe Gorman and Co Limited v Pneupac Limited CA 1982
Lord Denning MR discussed the meaning of ‘consent order’ saying: ‘There are two meaning to the words ‘by consent’. One meaning is this: the words ‘by consent’ may evidence a real contract between the parties. In such a case the court will only . .
Cited – Tigner Welsh London Company Limited v Spiro 1992
. .

Cited by:
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Cited – Weston v Dayman CA 7-Jun-2006
The Court considered the interpretation of a consent order on an application to vary its terms. The terms were incorporated within a consent order. It was argued that the variation could be based on CPR 3.1(7) which provides that the Court has power . .
Cited – Community Care North East (A Partnership) v Durham County Council QBD 29-Apr-2010
ccne_durhamCA10
The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .
Cited – Watson v Sadiq and Another CA 16-Jul-2013
The appellant and defendant said that the agreement compromising their action, and embodied within a Tomlin schedule, had been reached by duress and was vitiated. He said that the Recorder had exercised undue influence in advising the need for a . .

Lists of cited by and citing cases may be incomplete.
Updated: 01 October 2021; Ref: scu.88860

Anglo Eastern Trust Ltd v Kermanshahgi: ChD 2002

An asset freezing order restrains the defendent from dealing with his assets but does not prevent him from borrowing money, thereby increasing his overall indebtedness.
Neuberger J
[2002] EWHC 1702 (Ch)
England and Wales
Cited by:
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 September 2021; Ref: scu.591723

Martin v Kaisary and Another (1): CA 16 Mar 2005

Substitution of other party after limitation period expiry. The court considered the Law Committee’s recommendations on limitation and noted the intention to allow the addition of defendants out of time where this might validate a claim.
Brooke LJ
[2006] PIQR 5, [2005] EWCA Civ 594
Bailii
Limitation Act 1980
England and Wales
Cited by:
See Also – Martin v Kaisary and Another QBD 5-Apr-2005
. .

Lists of cited by and citing cases may be incomplete.
Updated: 29 September 2021; Ref: scu.226044

BPE Solicitors and Another v Gabriel: SC 17 Jun 2015

Application for directions in a pending appeal. The claimant alleged negligence against his former solicitors. After his successful claim was substantially overturned on appeal, he was made bankrupt.
Held: If the trustee adopted and pursued the action, but lost, he would not become personally liable for the costs in the lower courts.
Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKSC 39, [2015] 4 Costs LO 467, [2015] WLR(D) 259, [2015] AC 1663, [2015] 4 All ER 672, [2015] BPIR 779, [2015] 3 WLR 1, UKSC 2014/0026
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video
Constitutional Reform Act 2005 40(5), upreme Court Rules 2009 46
England and Wales
Citing:
Appeal from – Gabriel v Little and Others CA 22-Nov-2013
The claimant sought repayment of sums loaned to the defendant by them under a facility letter supported by a legal charge. The charge had been enforced but the sums realised had been insufficient. . .
Cited – Borneman v Wilson CA 1884
The Wilsons, father and son, had acted as commercial agents of one Borneman. He began an action against them in the Chancery Division for an account of their dealings with his goods and obtained interlocutory relief on motion including an injunction . .
Cited – School Board for London v Wall Brothers CA 1891
. .
Cited – Heath v Tang, Stevens v Peacock CA 11-Aug-1993
The bankrupt applicants each applied to the Court of Appeal for leave to appeal against the judgment for a liquidated sum on which the bankruptcy petition had been based. In the first case, the trustee in bankruptcy indicated his unwillingness to . .
Cited – Trustee of Property of Vickery (a Bankrupt) v Modern Security Systems Limited CA 15-Oct-1997
A trustee in bankruptcy will be treated as the party if he has in fact adopted the proceedings by conducting the litigation, even if there has been no formal substitution . .
Cited – In re Bluck, Ex parte Bluck 1887
The discretionary character of a costs order meant that it was not even a contingent liability until the order had actually been made . .
Cited – In re A Debtor (No 68 of 1911) 1911
. .
Cited – In re Pitchford 11-Jan-1924
. .
Cited – Aiden Shipping Co Ltd v Interbulk Ltd (The ‘Vimeira’) HL 1986
Wide Application of Costs Against Third Party
A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
Cited – Glenister v Rowe CA 21-Apr-1999
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .

Cited by:
Cited – Plevin v Paragon Personal Finance Ltd SC 29-Mar-2017
The court had ordered the respondent to pay the claimant’s costs. These were high because the solicitors had acted under a conditional fee agreement, and disproportionate to the funds at issue. The respondents challenged assignments of the original . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.549064

Priddle v Fisher and Sons: CA 1968

The appellant had arranged to be represented at an industrial tribunal hearing by a trade union representative with whom he intended to travel to the hearing. However, unfortunately the union representative was unwell on the day of the hearing and unable to make the journey. The appellant himself set off on his own intending to conduct his own case but he was unable to complete the journey because of snow. He managed to get a message through to the tribunal telling the tribunal office that the trade union representative would not be appearing, and that he himself had problems getting there. He did not formally apply for an adjournment.
Held: The court overturned the decision of the industrial tribunal to proceed with the case in the absence of the appellant, because they said that the tribunal should have considered the telephone message as amounting to an application to adjourn, even though he had not asked expressly for an adjournment. The tribunal had refused to adjourn because there had been no express request for an adjournment. The exercise of discretion by a lower court may not be appealed in the absence of an error of law. In this case such an error was found.
Lord Parker CJ
[1968] 1 WLR 1478, [1968] 3 All ER 506
England and Wales
Cited by:
Cited – Tokyo Diner Plc v S Matsumoto EAT 3-May-2001
The matter was due to come on for preliminary hearing. The respondent’s solicitor was summoned to a medical appointment only the evening before. She attended the tribunal, but left before the case was called on. There was a dispute as to whether . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 September 2021; Ref: scu.183461

Twycross v King: 25 Nov 1844

Plaintiff, having delivered a replication to several pleas, concluding to the country as to each plea but traversing one with a special inducement, added the similiters, made up and delivered the issue, and gave notice of trial. Defendant struck out the similiters, and gave notice thereof to plaintiff, But did not deliver a rejoinder or notice of his intetition to rejoin. Afterwards defendant craved oyer of an indenture mentioned in the special inducement, and delivered a rejoinder with a demurrer to the replication containing that inducement, and a similiter as to the rest; and also gave notice that he should not appear on the trial, but should move to set aside any trial bad. Plaintiff proceeded to trial, and obtained a verdict, defendant not appearing. The Court set aside the verdict and trial, with costs.
[1844] EngR 1049, (1844) 6 QB 663, (1844) 115 ER 250
Commonlii
England and Wales

Updated: 29 August 2021; Ref: scu.305641

Ryan and Another v Friction Dynamics Ltd and others: ChD 14 Jun 2000

When granting asset freezing orders in support of proceedings in a foreign jurisdiction the court should exercise caution, particularly under the section since the court would not have full knowledge of the issues. Where good grounds existed, and comity required a court to grant an order, the requirements of risk of dissipation, and of a good case must be met; an order might be made even if refused by a foreign court, and the existence of a world-wide order already did not prevent an English court granting a local order.
Times 14-Jun-2000
Civil Jurisdiction and Judgments Act 1982 25
England and Wales

Updated: 29 August 2021; Ref: scu.88941

Stanway v Attorney-General et al: ChD 25 Nov 1999

Where a defendant had brought a counter-claim against his co-defendants but had restricted that claim to issues raised already by the claim against himself, he was not to be prevented from commencing fresh proceedings against the co-defendants where the issues raised had not been dealt with in the first proceedings. The rules against relitigating issues were not being broken.
Times 25-Nov-1999
England and Wales
Cited by:
Appeal from – Stanway v Attorney-General CA 5-Apr-2000
Sir Richard Scott V-C said: ‘Charities operate within a framework of public law, not private law. The Crown is parens patriae of the charity and the judges of the courts represent the Crown in supervising what the charity is doing and in giving . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 August 2021; Ref: scu.89494

Kleinwort Benson v City of Glasgow District Council: ECJ 28 Mar 1995

ECJ The function of the Court, as envisaged by the Protocol of 3 June 1971 on the interpretation by the Court of Justice of the Convention of 27 September 1968 on jurisdiction and the enforcement of judgments in civil and commercial matters, is that of a court whose judgments are binding on the national court. That function would be altered if the replies given by the Court to the courts of the Contracting States were permitted to be purely advisory and without binding effect.
However, that would be the case if the Court were to declare that it had jurisdiction to provide interpretation of the Convention requested of it by a national court before which proceedings are pending and to which not the Convention but national legislation is applicable, where that legislation takes the Convention as a model, by reproducing certain of its provisions but without incorporating them as such into the domestic legal order, and expressly providing for the possibility of adopting modifications in order to produce divergence in relation to Convention provisions as interpreted by the Courts, and where that legislation merely requires national courts in applying the Convention provisions to have regard to the Court’s interpretation of the corresponding provisions of the Convention without giving binding effect to that interpretation.
For that reason the Court does not have jurisdiction to give a preliminary ruling on a question arising in such a context.
Times 17-Apr-1995, C-346/93, [1995] EUECJ C-346/93, [1995] ECR I-615
Bailii
European

Updated: 24 August 2021; Ref: scu.161171

Corporacion Nacional Del Cobre De Chile v Metallgesellschaft Ag Ltd and Others: ChD 6 Jan 1999

The overriding need for efficiency in litigation meant that a party could be absolutely barred from serving interrogatories before the procedure of discovery had been completed. Ord 14 application was a proper litigation purpose to support interrogatory.
Times 06-Jan-1999
England and Wales

Updated: 09 August 2021; Ref: scu.79516

Altomart Ltd v Salford Estates (No 2) Ltd: CA 29 Oct 2014

Reasons for grant of additional time to file respondent’s notice
Moore-Bick, Ryder LJJ, David Richards J
[2014] EWCA Civ 1408, [2015] 1 WLR 1825, [2014] WLR(D) 451, [2014] 6 Costs LR 1013, [2015] CP Rep 8
Bailii, WLRD
Civil Procedure Rules
England and Wales

Updated: 07 August 2021; Ref: scu.538146

In re Grosvenor Hotel, London (No 2): CA 1964

Lord Denning MR said that the Rules Committee ‘can make rules for regulating and prescribing the procedure and practice of the Court, but cannot alter the rules of evidence.’ Public policy protects against disclosure any documents which relate to the framing of government policy at a high level.
The Rules of the Supreme Court cannot change the substantive law unless expressly permitted so to do by statute.
Lord Denning MR, Salmon LJ
[1965] Ch 1210, [1964] 3 All ER 354
England and Wales
Cited by:
Cited – Kelly, Regina (on the Application of) v Warley Magistrates Court and The Law Society Admn 31-Jul-2007
. .
Cited – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Cited – Dunhill v Burgin SC 12-Mar-2014
Lack of Capacity – Effect on Proceedings
The Court was asked ‘First, what is the test for deciding whether a person lacks the mental capacity to conduct legal proceedings on her own behalf (in which case the Civil Procedure Rules require that she has a litigation friend to conduct the . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.372591

Sarkandi and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: CA 14 Jul 2015

Appeal from order allowing use of closed material procedures under section 6 of the 2013 Act.
Richards LJ said: ‘The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It represents Parliament’s assessment of how, in relevant civil proceedings, the balance is to be struck between the competing interests of open justice and natural justice on the one hand and the protection of national security on the other, coupled with express provision in section 14(2)(c) to secure compliance with article 6. It is certainly an exceptional procedure, and in the nature of things one would expect it to be used only rarely, but the conditions for its use are defined in detail in the statute. In the circumstances there is, in my judgment, no reason to give the statutory provisions a narrow or restrictive construction, save for any reading down that may be required, in accordance with the terms of the statute itself, for compliance with article 6. Subject to that point, the provisions should be given their natural meaning and applied accordingly.’
Richards, Sullivan, McFarlane LJJ
[2015] EWCA Civ 687, [2016] 3 All ER 837
Bailii
Justice and Security Act 2013 6
England and Wales
Citing:
Appeal from – Sarkandi and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jul-2014
The claimants had wrongly been listed as sanctions breakers, and now challenged the respondent’s refusal to remove them from the related list. . .

Cited by:
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.550204

Belhaj and Another v Straw and Others: QBD 21 Jul 2017

The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings in which a closed material application may be made pursuant to section 6 of the 2013 Act.
Popplewell J said: ‘Whilst this is a matter for more detailed consideration at the section 8 stage, it appears to me to be very unlikely that the material could be put into open or made available to the claimants or their legal representatives in a way which would better promote a fair and effective trial than a closed material procedure. As I have observed, much of the material can only properly be understood and weighed in the context of a substantial part of the material as a whole, such that gisting is unlikely to provide a realistic solution in most instances. Sittings in private and/or the use of confidentiality rings are unlikely to provide a satisfactory solution, both because of the risk of disclosure, even inadvertent, and because of the hobbling effect on the conduct of the claimants’ case if, as is almost inevitable, they were themselves to be excluded from the confidentiality ring . . These claims are brought not only against the Government, but against two named individuals who both wish to have a real and fair opportunity to defend themselves, but who cannot do so unless there is a closed material procedure.’
Popplewell J
[2017] EWHC 1861 (QB)
Bailii
Justice and Security Act 2013 6
England and Wales
Citing:
See Also – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
See Also – Belhaj and Another v Straw and Others QBD 21-Jul-2017
The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings . .

Cited by:
See Also – Belhaj and Another v Straw and Others QBD 21-Jul-2017
The claimant sought a declaration that the acts of the defendants had contributed to his unlawful rendition into US custody during the Iraq War, and that such actions were criminal. The Defendants applied for a declaration that these are proceedings . .
See Also – Belhaj and Another v Director of Public Prosecutions Admn 1-Dec-2017
The claimants alleged that the defendants had been involved in their unlawful rendition in 2004 from Thailand to Libya, in particular now challenging by judicial review the decision not to prosecute certain senior British Officers. . .
See Also – Belhaj and Another v Director of Public Prosecutions and Others Admn 15-Mar-2018
A claim that the DPP erred in her decision not to prosecute for alleged involvement in the unlawful rendition of the Claimants to Libya. . .
See Also – Belhaj and Others v Director of Public Prosecutions and Others Admn 15-Mar-2018
Second judgment on the scope of privilege to which we have both contributed – inadvertent disclosure . .
See Also – Belhaj and Another v Director of Public Prosecutions and Others Admn 3-May-2018
Incorrect disclosure of non-redacted material in closed hearing. . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.591302

Mcgartland and Another v Secretary of State for The Home Department: CA 14 Jul 2015

Appeal against a declaration under section 6 of the 2013 Act that proceedings brought by Mr McGartland and his long-term partner, Ms Asher, are ‘proceedings in which a closed material application may be made to the court’.
Richards, Lewison, McCombe LJJ
[2015] EWCA Civ 686
Bailii
Justice and Security Act 2013 6
England and Wales
Cited by:
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.550202

Cartier International Ag and Others v British Telecommunications Plc and Another: SC 13 Jun 2018

The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the website-blocking order.
Held: The appeal succeeded as to the costs of compliance with the injunction. The European Directives made no reference to the costs of compliance with such orders, and the issue was one of English Law which would by default ask as to the legal distribution of risks as found by the court. There was no basis for the claimant to look beyond the infringers for their costs, and the rights holders should indemnify the ISP for the costs of compliance. As to the litigation costs, the ISPs had chosen to make this a test case, and took the associated responsibility.
Lord Mance, Lord Kerr, Lord Sumption, Lord Reed, Lord Hodge
UKSC 2016/0159, [2018] UKSC 28, [2018] ECC 29, [2018] EMLR 22, [2018] 4 All ER 373, [2018] ECDR 16, [2018] ETMR 32, [2018] 1 WLR 3259, [2018] Bus LR 1417, [2018] WLR(D) 354, [2018] RPC 11
Bailii, WLRD, Bailii Summary, SC, SC Summary, SC Summary Video, SC 2018 Jan 30 am Video, SC 2018 Jan 30 pm
E-Commerce Directive 2000/31/EC, Information Security Directive 2001/29/EC, Enforcement Directive 2004/48/EC
England and Wales
Citing:
Appeal from – Cartier International Ag and Others v British Sky Broadcasting Ltd and Others CA 6-Jul-2016
Appeals by five English internet service providers against orders which required them to block or attempt to block access by their customers to certain websites which were advertising and selling counterfeit copies of the respondents’ goods in . .
Cited – Upmann v Elkan CA 5-Jun-1871
The defendant freight forwarding agent was innocently in possession of consignments of counterfeit cigars in transit to Germany through a London dock. The action was not for discovery, but for an order restraining the forwarder from releasing the . .
Cited – Singularis Holdings Ltd v Pricewaterhousecoopers PC 10-Nov-2014
(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers. . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Banker’s Trust v Shapira CA 1980
Enforcement through innocent third party bank
Two forged cheques, each for USD500,000, had been presented by two men and as a result USD1,000,000 had been transferred to accounts in their names. The plaintiff sought to trace assets through the banks involved.
Held: The court approved the . .
Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
Cited – Clipper Maritime Co Ltd v Mineralimportexport 1981
Innocent third parties, such as port authorities required by a freezing order to detain a vessel in port, are entitled to an indemnity. . .
Cited – Z Ltd v A-Z and AA-LL CA 1982
The plaintiffs, an overseas company with an office in London had been defrauded here. They sought and obtained Mareva injunctions against defendants and against six clearing banks. The banks sought clarification of their duties.
Held: The . .
Cited – Tommy Hilfiger Licensing And Others v Delta Center a.s ECJ 7-Jul-2016
ECJ (Judgment) Reference for a preliminary ruling – Approximation of laws – Directive 2004/48/EC – Enforcement of intellectual property rights – Notion of ‘intermediary whose services are being used by a third . .
Cited – Totalise Plc v The Motley Fool Limited and Interative Investor Limited (2) CA 19-Dec-2001
The respondent operated a web site which contained a chat room. Defamatory remarks were made by a third party through the chat room, and the claimant sought details of the identity of the poster. The respondent refused to do so without a court . .
Cited – UPC Telekabel Wien v Constantin Film Verleih GmbH ECJ 27-Mar-2014
ECJ Request for a preliminary ruling – Approximation of laws – Copyright and related rights – Information society – Directive 2001/29/EC – Website making cinematographic works available to the public without the . .
Cited – Ashworth Security Hospital v MGN Limited HL 27-Jun-2002
Order for Journalist to Disclose Sources
The newspaper published details of the medical records of Ian Brady, a prisoner and patient of the applicant. The applicant sought an order requiring the defendant newspaper to disclose the identity of the source of material which appeared to have . .
Cited – Belgische Vereniging van Auteurs, Componisten en Uitgevers CVBA (SABAM) v Netlog NV ECJ 16-Feb-2012
ECJ Information society – Copyright – Internet – Hosting service provider – Processing of information stored on an online social networking platform – Introducing a system for filtering that information in order . .
Cited – L’Oreal SA, Lancome parfums et beaute and Cie, Laboratoire Garnier and Cie, L’Oreal (UK) Limited v eBay International AG, eBay Europe SARL, eBay (UK) Limited ECJ 12-Jul-2011
ECJ Grand Chamber – Trade marks – Internet – Offer for sale, on an online marketplace targeted at consumers in the European Union, of trade-marked goods intended, by the proprietor, for sale in third States – . .
Cited – Miller Brewing Co v Ruhl Enterprises Ltd and another ; Miller Brewing Co v Mersey Docks and Harbour Co amd Others ChD 23-May-2003
The claimant obtained an interim injunction in respect of alleged infringement of its trade marks in beers brewed under licence by the respondents. They said the beers produced were of inferior quality, and threatened the brand. The grant of such . .
Cited – Scarlet Extended Sa v Societe Belge Des Auteurs Compositeurs Et Editeurs (SABAM) ECJ 14-Apr-2011
ECJ Opinion – Information Society – Intellectual property rights – Directive 2004/48/EC – Copyright and related rights – Directive 2001/29/EC – Illegal downloading on the Internet – Peer to peer through software . .
Cited – Google France and Google v Louis Vuitton Malletier (Intellectual Property) ECJ 23-Mar-2010
ECJ Trade marks Internet Search engine – Keyword advertising – Display, on the basis of keywords corresponding to trade marks, of links to sites of competitors of the proprietors of those marks or to sites . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.617855

Sumukan Ltd v The Commonwealth Secretariat: CA 21 Mar 2007

The appellants sought to challenge a finding that they had by their contract with the defendants excluded the right to appeal to a court on a point of law. The defendants replied that the appeal court had no jurisdiction to hear such an appeal.
Held: The Court of Appeal did have jurisdiction. The argument that it did not was in practice circular, and ‘although there might be a temptation (in the interest of speed and saving expense) to construe any part of the language of the 1996 Act in a way that renders all decisions under the various sections where permission of the court is required as final, if the first instance court so rules, there is a distinction between those cases where the court is assisting or overseeing the arbitration process and the cases where the question is whether the jurisdiction of the court has been excluded. ‘
Waller LJ, Clarke MR, Sedley LJ
[2007] EWCA Civ 243, Times 13-Apr-2007, [2007] 2 All ER (Comm) 23, [2007] 3 All ER 342, [2007] 2 Lloyd’s Rep 87, [2007] Bus LR 1075, [2007] 1 CLC 282, [2007] ArbLR 56
Bailii
Arbitration Act 1979
England and Wales
Citing:
Cited – Henry Boot Construction (UK) Limited v Malmaison Hotel (Manchester) Limited CA 25-May-2000
Where a party appealed against an arbitration to the County or High Court, the court which gave judgment was the sole body able to give permission to enter an appeal under the Act. An appellate court did not have jurisdiction to give leave to . .
Appeal from – Sumukan Ltd v Commonwealth Secretariat ComC 14-Feb-2007
The claimant had created a web-site for the defendant. The claimant sought to appeal an arbitration award. . .
Cited – Athletic Union of Constantinople v National Basketball Association and Others CA 28-May-2002
A party had been refused leave to appeal against an arbitration under the Act by the judge, but later obtained leave to appeal.
Held: Such leave could only be granted by the trial judge, and the Court of Appeal could set aside the leave . .
Cited – ASM Shipping Ltd of India v TTMI Ltd of England CA 16-Oct-2006
The court at first instance had dismissed the ship-owner’s application to set aside the arbitration award, and then refused leave to appeal. The court of appeal had to consider whether it had jurisdiction itself to hear an application for leave.
Cited – Cetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Cited – Arab African v Olieprodukten 1983
By section 3(1) of the 1979 Act, the High Court was precluded from granting permission to appeal on a point of law from an award ‘if the parties to the reference in question have entered into an agreement in writing (in this section referred to as . .
Cited – Circle Freight International Ltd v Medeast Gulf Imports Ltd CA 1988
The court considered the effect of a driver’s behaviour on the ability to claim under his insurance policy, on the basis that his behaviour would constitute ‘wilful misconduct’. Taylor LJ: ‘Mr Malins has sought to argue that although Huggins (the . .
Cited – Interfoto Picture Library Ltd v Stiletto Visual Programmes Ltd CA 12-Nov-1987
Incorporation of Onerous Terms Requires More Care
Photographic transparencies were hired out to the advertising agency defendant. The contract clauses on the delivery note included a fee which was exorbitant for the retention of transparencies beyond the set date.
Held: The plaintiff had not . .
Cited – Czarnikow v Roth Schmidt and Co 1922
It is aganst public policy to allow the parties to seek to oust the jurisdiction of the court. An agreement to submit disputes to arbitration does not, apart from statute, take from a party the power to invoke the jurisdiction of the courts to . .
Cited – Stretford v The Football Association Ltd and Another CA 21-Mar-2007
The claimant was a football player’s agent. The licensing scheme required disputes, including disciplinary procedures, to be referred to arbitration. He denied that the rule had been incorporated in the contract. He also complained that the . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.250453

Sphere Drake Insurance Ltd and Another v Euro International Underwriting Ltd: ComC 8 Jul 2003

Relationships between Lloyds underwiters and others in the market rather than just names, could also bind the underwriter to a fiduciary relationship. Here the claimant had granted to the defendant a binding authority. This was in effect a similar relationship as would exist between underwriter and name. The defendant wrote business it knew to be contrary to the claimant’s interest and it acted dishonestly.
Thomas J
[2003] EWHC 1636 (Comm), Times 11-Aug-2003, [2003] 1 Lloyd’s Law Reports 525
Bailii
England and Wales
Cited by:
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .

These lists may be incomplete.
Updated: 11 July 2021; Ref: scu.184655

English and American Insurance Co Ltd and Others v Herbert Smith: ChD 1987

Where documents with the benefit of legal professional privilege come into the hands of the opposing side, the court should be ready to grant an injunction to prevent their misuse.
Browne-Wilkinson VC J
(1987) NLJ 148, Times 22-Jan-1987, [1988] FSR 232
England and Wales
Citing:
Cited – Lord Ashburton v Pape CA 1913
Pape’s bankruptcy discharge was opposed by Lord Ashburton. He subpoenaed Brooks, a clerk to Lord Ashburton’s solicitor and obtained privileged letters written by Lord Ashburton to Mr Nocton, which Pape proposed to use. Pape and Brooks had colluded. . .
Cited – Goddard v Nationwide Building Society CA 1986
A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defendant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Cited by:
Cited – Derby and Co Ltd v Weldon (No 8) CA 27-Jul-1990
There had been a lengthy and contentious process of discovery. Certain documents with legal professional privilege had also been handed over inadvertently. The plaintiff sought their return and an order against them being used.
Held: The . .
Cited – Stiedl v Enyo Law Llp and Others ComC 18-Oct-2011
The applicant, defendant in the main proceedings, sought an injunction to restrain the solicitors from acting for the claimant and from making any use of documents which had come into their privileged possession whilst acting for him. . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.193603

O’Rourke v Darbishire: HL 1920

Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own benefit, with a precatory expression of his wishes that it should be used for charitable purposes. Two further codicils 1886 extended the first codicil’s gift to the executors. Sir Joseph’s intestate successors would have been Mrs Uniacke (as to realty) and Mrs Uniacke and Mrs McGowan (as to personalty). Mrs McGowan threatened to challenge the will and codicils, but in 1889 there was a compromise between all interested parties. In 1916, after Mrs Uniacke, Mrs McGowan and the executors had all died, Mrs Uniacke’s administrator (Mr O’Rourke) sought to challenge both the will and codicils and the compromise, alleging fraud by Mr Darbishire (who was one of the executors and had been Sir Joseph’s solicitor). Mr O’Rourke sought disclosure of documents containing legal advice given to Sir Joseph during his lifetime, and to his executors after his death.
Held: The House dismissed Mr O’Rourke’s appeal. He had not made out even a prima facie case that the will and codicils were invalid, or that the communications had promoted fraud. Mr O’Rourke’s relied on a ‘proprietary right’. A cestui que trust, in an action against his trustees, is generally entitled to the production for inspection of all documents relating to the affairs of the trust. It is not material whether this is seen as a paramount proprietary right in the cestui que trust, or as a right to be enforced under the law of discovery, since in both cases an essential preliminary is either the admission, or the establishment, of the status on which the right is based.
Viscount Finlay, Lord Sumner, Lord Parmoor
[1920] AC 581, [1920] All ER 1
England and Wales
Cited by:
Cited – Vadim Schmidt v Rosewood Trust Limited PC 27-Mar-2003
PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Rush and Tomkins Ltd v Greater London Council HL 3-Nov-1988
The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .
Cited – Martin and Others Gabriele v Giambrone P/A Giambrone and Law QBNI 5-Mar-2013
The claimants had made investments through their solicitors, the defendants. The investments failed. The defendants were said to have made a foul and threatening posting on facebook about the claimant after failure in earlier proceedings. The . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .
Cited – Royal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.180360

United States of America v Philip Morris Inc and others: QBD 10 Dec 2003

Witness orders were sought in respect of professionals resident in England to support litigation in the US. They objected on the ground that the terms of the order sought suggested improper behaviour, and that an order would anticipate breach of professional legal privilege.
Held: Before legal advice privilege can be claimed in respect of any communication three conditions must be satisfied: (i) the communication must pass between the lawyer and his client; (ii) it must be confidential; and (iii) it must be for the dominant purpose of obtaining or giving legal advice.
The Honourable Mr. Justice Moore-Bick
[2003] EWHC 3028 (Comm)
Bailii
England and Wales
Citing:
Cited – In the Matter of a Civil Matter Now Pending In District Court for Second Judicial District, County of Ramsey, State of Minnesota CA 30-Jul-1997
When considering an application under the 1975 Act, the court must not only observe the restrictions imposed by the 1975 Act; it must also hold a fair balance between the interests of the requesting court and the interests of the witness. ‘because . .
Cited – Genira Trade and Finance Inc v CS First Boston and Standard Bank (London) Limited CA 21-Nov-2001
The court considered the circumstances under which it could be called upon to assist a foreign court.
Held: It is the duty and pleasure of the court to give all such assistance as it can to the requesting court within the limits imposed by the . .
Cited – Three Rivers District Council and others v The Governor and Co of the Bank of England (No 5) CA 3-Apr-2003
Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
Held: Legal advice privilege attached to the communications between a client and the . .
Cited – Re Highgrade Traders CA 1984
Litigation privilege may be claimed in respect of documents brought into being at a time when litigation is reasonably in prospect. . .
Cited – Balabel v Air India CA 1988
When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
Cited – In Re L (A Minor) (Police Investigation: Privilege) HL 22-Mar-1996
A report obtained for Children Act proceedings has no privilege against use in evidence. Such proceedings are in the nature of inquisitorial proceedings. Litigation privilege was not applicable in care proceedings and a report prepared may be given . .
Cited – Regina v Cox and Railton 1884
(Court for Crown Cases Reserved) The defendants were charged with conspiracy to defraud a judgment creditor of the fruits of a judgment by dishonestly backdating a dissolution of their partnership to a date prior to a bill of sale given by Railton . .
Cited – Barclays Bank Plc v Eustice CA 6-Jul-1995
No Professional Privilege in Iniquity
There was an allegation that the legal advice for which privilege was sought and resisted had been obtained in order to frustrate the mortgagee’s rights to the property at issue, because the mortgagors regarded the mortgagee bank as interfering with . .
Cited – In re State of Norway’s Application (No 1) CA 1987
There were taxation proceedings in Norway. One question was whether the Norwegian taxpayer controlled a trust which owned some shares. Letters rogatory issued by the Norwegian Court requested the oral examination of two witnesses in the United . .
Cited – In re Norway’s Applications HL 1990
The house considered appeals from the two earlier applications, upholding the first and reversing the second. . .
Cited – Re State of Norway’s Application (No 2) CA 1988
The basic requirement for an issue estoppel to arise was that ‘the earlier determination relied on as raising an issue estoppel shall have been fundamental to the decision first arrived at’. The Board did not accept that an issue estoppel is . .

Cited by:
Appeal from – United States of America v Philip Morris Inc and Others and British American Tobacco (Investments) Ltd CA 23-Mar-2004
The defendants appealed orders requiring them to produce evidence for use in the courts in the US.
Held: It was the pleasure and duty of British courts to respond positively to a letter of request. Public interest required that a court should . .
Cited – USP Strategies Plc and Another v London General Holdings Ltd and others ChD 1-Mar-2004
In the course of litigation, in the course of which summaries of advice given to the defendants by their lawyers was produced in evidence. They sought that it be struck out as protecetd by legal privilege.
Held: Though summarised, the . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.188687

Vann v Awford: CA 18 Apr 1986

The Court set aside the judgment on the application of the defendant, despite the fact that that he had, in his own account of the matter, lied on affidavit. Weighing the defence on the merits against possible prejudice to the plaintiffs, the Court applied the principle that it would not wish to let a judgment pass on which there had been no proper adjudication.
References: Unreported, 18 April 1986
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193404

Janes v Janes: UTTC 8 Jan 2016

PROCEDURE -New evidence-whether such evidence should and could have been adduced before the First-tier Tribunal-whether it is likely to have an important influence on the case – overriding objective- appeal allowed – case remitted to First-tier Tribunal
References: [2015] UKUT 688 (TCC)
Links: Bailii
Jurisdiction: England and Wales

Last Update: 16 October 2020; Ref: scu.558967

Burris v Azadami: CA 9 Aug 1995

References: Times 09-Aug-1995, [1995] 1WLR 1373
Coram: Sir Thomas Bingham MR
Ratio: The court addressed the principles upon which a Court will grant interlocutory injunctive relief in harassment cases.
Held: Both the High Court and the County Court had jurisdiction under the 1981 and 1984 Acts to grant interlocutory injunctions in wide terms to restrain conduct that was not in itself tortuous or otherwise unlawful, if such order was reasonably to be regarded as necessary for the protection of a plaintiff’s legitimate interest. The court has power to impose an exclusion zone when granting a non-molestation injunction restraining harassment of the victim by the defendant, provided no unnecessary restraint was placed on the defendant. It would not seem to me to be a valid objection to the making of an exclusion zone order that the conduct to be restrained is not in itself tortuous or otherwise unlawful, if such an order is reasonably regarded as necessary for the protection of a plaintiff’s legitimate interest’ and ‘Neither the statute nor authority in my view precludes the making of an ‘exclusion zone’ order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.’
Statutes: Supreme Court Act 1981 37(1), County Courts Act 1984 38
This case is cited by:

  • Cited – Hall and others v Save Newchurch Guinea Pigs (Campaign) and others QBD (Bailii, [2005] EWHC 372 (QB), Times 07-Apr-05)
    The claimants ran a guinea pig farm. They and their neighbours applied for injunctions and an exclusion zone to keep away the defendants who campaigned against the breeding of animals for research.
    Held: The claimants had been subjected to a . .

(This list may be incomplete)

Last Update: 19 March 2019
Ref: 78757

Kastor Navigation Co Ltd and Another v AGF M A T and others (Kastor Too”): ComC 4 Dec 2002″

References: [2002] EWHC 2601 (Comm), [2003] 1 All ER (Comm) 277, [2003] 1 Lloyd’s Rep 296
Links: Bailii
Coram: Tomlinson J
Ratio: The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore a constructive total loss (‘CTL’). They said the cause of the loss was not the fire, and the loss was uninsured.
Held: Abandonment of the subject-matter insured will take place by operation of law when the underwriters settle the claim. Section 61 is thus satisfied. The insured has been deprived of his right of choice envisaged by Section 61. He has no option but to treat the vessel as a total loss. Section 62(7) says in terms that notice of abandonment is unnecessary where when the insured receives information of the loss there would be no possibility of benefit to the insurer if notice were given to him. The Claimants were entitled to recover as for a CTL.
Statutes: Marine Insurance Act 1906 6162(7) 77(2)
This case cites:

  • See Also – Kastor Navigation Co Ltd and Another v AGF M A T and others ComC (Bailii, [2003] EWHC 472 (Comm), Times 29-Mar-03)
    The court was able to make costs orders which differentiated between different stages and elements of a case. This might well result, as here, in a situation of a succesful claimant being ordered to pay 80% of the defendant’s costs, because of costs . .
  • Cited – Le Cheminant v Pearson ((1812) 4 Taunt 367)
    The insured having carried out a partial repair folowing one incident, the vessel was then a total loss.
    Held: The insured could recover both losses. . .
  • Cited – Slattery v Mance ([1962] 1 QB 676)
    Where the insured property is damaged in a fire, unless the insurers allege that it had been started deliberately with the connivance of the insured, acceptance that a fire had occurred amounted to admission of the operation of an insured peril. . .
  • Cited – Robertson v Nomikos HL ([1939] AC 371)
    The ship suffered a constructive total loss under the terms of their freight insurance policy, which stipulated that the value when repaired was to be taken as the insured value. The cost of repairs was greater than the insured value, but less than . .
  • Cited – Bank of America National Trust and Savings Association v Chrismas (‘The Kyriaki’) QBD ([1993] 1 Lloyd’s Rep 137, Times 26-Aug-92)
    When a party seeks to add a new defendant by the amendment of a writ, that amended writ must be served within the applicable limitation period. For limitation purposes the assured’s cause of action arose at the date of the CTL casualty, that a . .
  • Cited – Chandris v Argo Insurance Ltd ([1963] 2 LLoyds Rep 64)
    Terms of an insurance policy for the very nature of the loss may require a particular method of computation or process of quantification of loss before payment is due. Ordinarily, the right to the indemnity accrues as soon as the loss has been . .
  • Cited – Socony Mobil Oil Co Inc and others v West of England Ship Owners Mutual Insurance Association Ltd (Padri Island) (No 2); Firma CF-Trade SA v Similar (The ‘Fant’) HL ([1991] 2 AC 1, Gazette 25-Jul-90, [1990] 2 Lloyds Rep 191)
    The House was asked as to the effect of section 1(3) of the 1930 Act on policies including ‘pay or be paid’ clauses.
    Held: The central question was whether the condition of prior payment was rendered of no effect by section 1(3) of the Act of . .
  • Cited – Andersen v Marten CA ([1908] 1 KB 601)
    The vessel was first taken captive and then lost. The insurer said that actual loss was caused by the capture, which was excepted.
    Held: The right to claim as a constructive total loss had not been affected. . .
  • Cited – PYSBE v Beer ([1946] 79 LLR 417)
    The court considered how an event after the insured event may affect the insurance claim: ‘once you have got a constructive total loss, the mere fact that it may ultimately become an actual loss because of some event that is not within the policy . .
  • Cited – Andersen v Marten HL ([1908] AC 334)
    The ship was a total loss by capture before she became a wreck by perils of the seas. . .
  • Cited – Livie v Janson ([1810] 12 East 648)
    The time to estimate the loss under an insurance claim where the party is put to no expense, as in the case of unrepaired damage, is at the expiration of the risk. In the case of a partial damage short of a total loss left unrepaired, the insured . .
  • Cited – Kaltenbach v Mackenzie CA ([1878] 3 CPD 467)
    The court described the origin of the necessity of giving a notice of abandonment in a shipping insurance claim and explained its function.
    Brett LJ said: ‘This case raises the questions of abandonment and notice of abandonment on a policy of . .
  • Cited – British and Foreign Insurance Co Ltd v Wilson Shipping Co Ltd HL ([1921] 1 AC 188)
    The vessel was insured against perils of the sea and suffered damage by a risk covered by the policy. Before the damage was repaired she was lost, still during the currency of the policy, but by a risk which is not covered by the policy.
    Held: . .
  • Cited – Hahn -v Corbett ([1824] 2 Bing 206)
    The cargo, Manchester cotton goods, was insured against marine risks from London to Maracaibo ‘warranted free from capture and seizure.’ The vessel was grounded off Maracaibo and became a constructive total loss. Ninety-five per cent of the cargo . .
  • Cited – Roux v Salvador CeC ([1836] Bing NC 266)
    Hides were insured for their journey. Unfortunately they were in a process of putrefaction which would have been complete by the time of arrival at the port of destination, Bordeaux, such that on arrival they could not properly have been described . .
  • Cited – Rhesa Shipping Co SA v Edmonds (The Popi M) HL ([1985] 2 All ER 712, [1985] 1 WLR 948, [1985] 2 Lloyds Rep 1, [1985] UKHL 15, Bailii)
    The Popi M sank in calm seas and fair weather as a result of a large and sudden entry of water into her engine room through her shell plating. The vessel’s owners claimed against her hull and machinery underwriters, contending that the loss was . .
  • Cited – The Marel CA ([1994] 1 Lloyd’s Law Rep 624)
    . .
  • Cited – The Ikarian Reefer CA ([1995] Lloyd’s Rep 455)
    The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When . .
  • Cited – Northern Shipping Company v Deutsche Seereederei Gmbh and others (‘The Kapitan Sakharov’) CA (Bailii, [2000] EWCA Civ 400, [2000] 2 Lloyd’s Law Rep 255)
    A carrier: (a) should not be exposed to an infinite liability in time; and (b) is not, without more, liable for latent defects in a vessel before it acquired it. The relevant failure to exercise due diligence must relate to the performance of a . .

(This list may be incomplete)
This case is cited by:

  • See also – Kastor Navigation Co Ltd and Another v AGF M A T and others ComC (Bailii, [2003] EWHC 472 (Comm), Times 29-Mar-03)
    The court was able to make costs orders which differentiated between different stages and elements of a case. This might well result, as here, in a situation of a succesful claimant being ordered to pay 80% of the defendant’s costs, because of costs . .
  • Appeal from – Kastor Navigation Co Ltd and Another v Axa Global Risks (Uk) Ltd and others CA (Bailii, [2004] EWCA Civ 277, Times 29-Apr-04)
    The Kastor Too had been lost in a fire. After substantial litigation, the insurers now appealed an order finding a constructive total loss (it was beyond economic repair or recovery). They had said that it was already beyond repair immediately . .

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 19-Nov-17
Ref: 178942

Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The Saudi Eagle”: CA 1986″

References: [1986] 2 Lloyd’s Rep 221
Coram: Sir Roger Ormrod
Ratio: The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that they had given security, applied initially to the judge and then on appeal to the Court of Appeal, unsuccessfully at both hearings, to set aside the judgment and for leave to defend.
Held: When comparing the test to be met by a defendant which required there to be ‘an arguable case’, with the standard laid down in Evans in respect of a defendant seeking to set aside a regular judgment signed in default, the Evans case clearly contemplated that a defendant who is asking the court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. It must be more than merely arguable.
Sir Roger Ormrod: ‘. . . a defendant who is asking the Court to exercise its discretion in his favour should show that he has a defence which has a real prospect of success. (In Evans v. Bartlam there was an obvious defence under the Gaming Act and in Vann v. Awford a reasonable prospect of reducing the quantum of the claim.) Indeed it would be surprising if the standard required for obtaining leave to defend (which has only to displace the plaintiff’s assertion that there is no defence) were the same as that required to displace a regular judgment of the Court and with it the rights acquired by the plaintiff. In our opinion, therefore, to arrive at a reasoned assessment of the justice of the case the Court must form a provisional view of the probable outcome if the judgment were to be set aside and the defence developed. The ‘arguable’ defence must carry some degree of conviction.’
Statutes: Rules of the Supreme Court Order 14
This case is cited by:

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 08-Feb-17
Ref: 180850

F and C Alternative Investments (Holdings) Ltd. v Barthelemy and Another: ChD 14 Jul 2011

References: [2011] EWHC 1851 (Ch)
Links: Bailii
Coram: Sales J
Ratio: The parties applied to the court for a conclusion to their action without the draft judgment being handed down and published, they having reached agreement.
Held: It was within the judge’s discretion and in this in the public interest for the judgment to be handed down. It was not the function of a draft judgment to provide an opportunity for the parties to settle. Nor was it appropriate to give a partial judgment without the facts which would allow it to be understood. The defendants were perhaps unnecessarily concerned at the risk of an appeal.
Statutes: Limited Liability Partnerships Act 2000, Companies Act 1985
This case cites:

  • Cited – Prudential Assurance Company Ltd v McBains Cooper (A Firm) and Others CA (Times 02-Jun-00, Gazette 15-Jun-00, Bailii, [2000] EWCA Civ 172, [2000] 1 WLR 2000, [2000] CPLR 475, [2001] 3 All ER 1014, [2001] CP Rep 19)
    A judge who had submitted a draft judgment to the parties for comment before publishing a final version, was entitled to go ahead and publish his judgment notwithstanding that the parties had reached a settlement after seeing the draft. The judge . .
  • Cited – Liverpool Roman Catholic Archdiocesan Trust v David Goldberg QC (No 3) ChD (Times 14-Aug-01, Gazette 23-Aug-01, Bailii, [2001] EWHC Ch 396, [2001] 1 WLR 2337)
    Where parties settled a matter after the draft of the judgment had been delivered to them, and the terms of the settlement required the non-publication of the judgment, the judge nevertheless retained the power to publish that judgment.
    Held: . .
  • Cited – Boughtwood v Oak Investment Partners XII Ltd CA (Bailii, [2010] EWCA Civ 23, [2010] 2 BCLC 459)
    The claimant had alleged unfair prejudice in the conduct of the business. The court considered an appeal on the valuation of the shares ordered to be purchased. . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 05-Dec-16
Ref: 441823

Neste Chemicals SA and Others v DK Line Sa and Another (‘The Sargasso’): CA 4 Apr 1994

References: Times 04-Apr-1994, [1994] 3 All ER 180
Coram: Steyn LJ, Peter Gibson LJ and Sir Tasker Watkins
Ratio: An English Court becomes seised of a case on the service of the writ. Steyn LJ: ‘the general thrust of the Dresser UK Ltd case is not only binding on us but . . . is correct’. There were no ‘exceptions to the rule that date of service marks the time when the English court becomes definitively seised of proceedings’. The ECJ in the Zelger case had ’emphasise[d] the importance of certainty in national procedural laws’, and that ‘a ‘date of service’ rule would be readily comprehensible not only in England but also in other Contracting States.’
Statutes: Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters
This case cites:

  • Considered – Dresser UK v Falcongate Freight Management Ltd; The Duke of Yare CA ([1992] 5 CL 373, [1992] QB 502)
    In England the court was first seised of a matter at the point when the proceedings were served, not when they were issued. Article 21 was metaphorically described as a ‘tie-break rule’ which operates on the basis of strict chronological . .
  • Cited – Siegfried Zelger v Sebastiano Salinitri ECJ (Europa, C-129/83, R-129/83, Bailii, [1984] EUECJ R-129/83, [1984] ECR 2397)
    Article 21 of the Convention of 28 September 1968 must be interpreted as meaning that the court ‘first seised’ is the one before which the requirements for proceedings to become definitively pending are first fulfilled, such requirements to be . .

(This list may be incomplete)
This case is cited by:

  • Cited – Nussberger and Another v Phillips and Another (No 4) CA (Bailii, [2006] EWCA Civ 654, Times 17-Jul-06, [2006] 1 WLR 2598, Gazette 08-Jun-06)
    A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
  • Cited – Canada Trust Co and Others v Stolzenberg and Others (No 2) HL (Times 17-Oct-00, House of Lords, Gazette 02-Nov-00, House of Lords, House of Lords, Bailii, [2000] UKHL 51, [2000] 4 All ER 481, [2000] 3 WLR 1376, [2002] 1 AC 1, [2001] CLC 118, [2001] IL Pr 40)
    The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
  • Cited – Phillips and Another v Symes and others HL (Bailii, [2008] UKHL 1, [2008] 2 All ER 537, [2008] 1 All ER (Comm) 918, [2008] 1 WLR 180, [2008] 1 CLC 29, [2008] 1 Lloyd’s Rep 344)
    Various parties had sought relief in the English courts and in Switzerland after an alleged fraud. There had been a mistake in service of the proceedings in England. The high court had dispensed with service an backdated the effect of the order to . .

(This list may be incomplete)

Last Update: 01-Sep-16
Ref: 84257

Dashwood v Dashwood; 1 Nov 1927

References: (1927) 71 SJ 911, [1927] WN 276, (1927) 64 LJNC 431
Coram: Tomlin J
Ratio: Tomlin J set out the the practice on making an order such as would keep the proceedings alive only to the extent necessary to enable a party to enforce the terms of the settlement.
Held: A provision in the order which required one party to refrain from running a business in competition with the other party could not be enforced unless and until the court made an order for specific performance or for an injunction. Provisions in such an order which might require action by the court, such as releasing funds held in court, or an order for costs, must be included in the body of the order, and not in the schedule. Until a second order has been sought, it would not be possible to apply to commit the party in breach for contempt of court.
This case is cited by:

  • Cited – Practice Note ([1927] WN 290)
    Tomlin J set out the appropriate practice on attaching a private schedule to an order made by consent. The schedule records the terms of the settlement agreed between the parties but which terms are not ordered by the court and are not enforceable . .
  • Cited – Community Care North East (A Partnership) v Durham County Council QBD (Bailii, [2010] EWHC 959 (QB), [2012] 1 WLR 338)
    The parties had settled their dispute and sealed it in a Tomlin Order. The court now asked as to its power to vary such an order. The order required the defendant to reopen a tendering process, but other tenderers now objected, and the council felt . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 412283

Camdex International Ltd v Bank of Zambia: CA 3 Apr 1996

References: Gazette 10-Jul-1996, Times 08-Apr-1996, [1998] QB 22
Coram: Mr Justice Neill, Lord Justice Peter Gibson and Lord Justice Hobhouse
Ratio: There was no maintenance in the assignment of debt though litigation was required to recover it. It remains objectionable to traffic in litigation. The assignment had no essence in maintenance and was contemplated by statute, and was effective.
Statutes: Law of Property Act 1925 136
This case cites:

  • Cited – Ellis v Torrington CA ([1920] 1 KB 399)
    An assignment of the benefit of a covenant in a lease held to be sufficiently connected with enjoyment of the property as not to be a bare right of action. The assignment was not void.
    Scrutton LJ stated that the assignee of a cause of action . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 25-Aug-16
Ref: 78855

The Owners of the ‘P. Caland’ and Freight v Glamorgan Steamship Co Ltd: HL 1893

References: [1893] AC 207
Coram: Lord Herschell
Ratio: There were concurrent findings on the question whether a vessel was showing a red light when it came into collision with another vessel. The House was asked to disturb the findings of fact.
Held: A mere finding of fact in which both the courts below had concurred ought not to be disturbed unless it could be clearly demonstrated that the finding was erroneous. Lord Herschell said: ‘In the present case, although I might probably myself have come to a different conclusion, I cannot say that any cardinal fact was disregarded or unduly estimated by the courts below. I can lay hold of nothing as turning the balance decisively the one way rather than the other. I think the decision of the question of fact at issue depends upon which way the balance of probability inclines, and I am not prepared to advise your Lordships that it so unequivocally inclines in the opposite direction to that indicated in the judgments of the courts below, that this House would be justified in reversing the judgment appealed from.’ and

‘Now I quite agree with what has been said in this House in previous cases as to the importance of not disturbing a mere finding of fact in which both the Courts below have concurred. I think such a step ought only to be taken when it can be clearly demonstrated that the finding is erroneous. .’
This case is cited by:

  • Cited – Hicks v Chief Constable of the South Yorkshire Police HL (Bailii, [1991] UKHL 9, [1992] 2 All ER 65, [1992] PIQR P433)
    The plaintiffs sought damages after watching television scenes of the football match at Hillsborough at which their two daughters died after disorder.
    Held: Neither the risk of future injury nor anxiety at the prospect of future injury is . .

(This list may be incomplete)

Last Update: 07-Aug-16
Ref: 272833

Anderson v City of Bessemer City, North Carolina; 19 Mar 1985

References: 470 US 564 (1985), 53 USLW 4314, [1985] USSC 57, 105 SCt 1504, 84 L Ed 2d 518
Links: USSC
Ratio: United States Supreme Court – The court explained some considerations for the deference to be given by an appellate court to findings of fact made by a lower court: ‘The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the ‘main event’ . . rather than a ‘tryout on the road.’ . . For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.’
This case is cited by:

  • Cited – McGraddie v McGraddie and Another (Scotland) SC (Bailii, [2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, WLRD, Bailii Summary, UKSC 2012/0112, SC Summary, SC)
    The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .

(This list may be incomplete)

Last Update: 03-Aug-16
Ref: 540458

The Attorney-General, At The Relation Of Joseph Greenhill v Sidney Sussex College, Cambridge; Trinity College, Oxford, And Frederick Greenhill; 4 May 1865

References: [1865] EngR 431, (1865) 34 Beav 654, (1865) 55 ER 788
Links: Commonlii
Ratio:Lord Chelmsford L.C. said, of an argument by that college that the leave of the Charity Commissioners ought to have been obtained to the plaintiff’s proceedings but had not been, that: ‘The objection if persisted in must prevail, but in that case [he] would give leave to apply to the commissioners, and he would suspend the decree for that purpose.’
This case is cited by:

  • Cited – Park v Cho and Others ChD (Bailii, [2014] EWHC 55 (Ch), [2014] PTSR 769, [2014] WLR(D) 27, WLRD)
    The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .

(This list may be incomplete)

Last Update: 20-Jul-16
Ref: 281343

Walsh (as executrix of the estate of David G Walsh) and Others v Deloitte and Touche Inc , Trustee of the estate of Bre-X Minerals Limited , a bankrupt: PC 17 Dec 2001

References: No 37 of 2000, [2001] UKPC 58
Links: PC, PC, PC, Bailii
Coram: Lord Slynn of Hadley Lord Hoffmann Lord Rodger of Earlsferry Sir Martin Nourse Sir Kenneth Keith
Ratio:(Bahamas) Shares were sold in a mining company whose prices had been buoyed by rumour, but where disclosure of difficulties had not been made, and eventually it became clear that samples had bee fraudulently salted. The company became insolvent, and the respondents appointed. They obtained a continuing Mareva injunction against the appellant as executor of her husband’s estate in the Bahamas.
Held: An officer of a company owes a fiduciary duty to the company not to use his knowledge of its affairs by making a profit from dealing in what he knows to be a false market in its shares. Interlocutory jurisdiction is ordinarily ancillary to substantive jurisdiction. There was evidence that the appellants had tried move assets beyond the jurisdiction. The judge’s discretion had been exercised properly. An appeal on the ground of delay had not been pleaded.
This case cites:

  • Cited – Reading -v- Attorney General HL ([1951] AC 507, [1951] 1 All ER 617, [1951] 1 TLR 480, 95 Sol Jo 155, Bailii, [1951] UKHL 1)
    The applicant had been a sergeant in the army. He had misused army property and his uniform to assist in smuggling operations. After serving his sentence he now sought repayment of the money he had earned.
    Held: His claim failed. The money had . .

(This list may be incomplete)

Last Update: 10-Jul-16
Ref: 167223

Interbulk Limited v Aiden Shipping Co Limited (The ‘Vimeira’): CA 1984

References: [1984] 2 Lloyd’s Rep 66
Coram: Robert Goff LJ, Ackner LJ
Ratio:The court considered whether an arbitrator had a duty to raise a point missed by counsel.
Held: Robert Goff LJ: ‘In truth, we are simply talking about fairness. It is not fair to decide a case against a party on an issue which has never been raised in the case without drawing the point to his attention so that he may have an opportunity of dealing with it, either by calling further evidence or by addressing argument on the facts or the law to the tribunal.’ Ackner LJ: ‘Where there is a breach of natural justice as a general proposition it is not for the courts to speculate what would have been the result if the principles of fairness had been applied. I adopt, with respect, the words of Mr Justice Megarry in John v Rees [1969] 2 All ER 275 at p 309 where he said: ‘As everybody who has anything to do with the law well knows, the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.’ But, in this case, speculation does not arise. If the arbitrators had informed the parties of what they had in mind, the consequences would have been obvious. Firstly, the charterers would have sought to persuade the arbitrators that it was common ground on the evidence that there was adequate room to turn the vessel and that, therefore, the arbitrators should decide the dispute according to the evidence. If they failed so to persuade the arbitrators, they would have sought, and would have been entitled to, an adjournment. Having obtained an adjournment, the charterers would have called the evidence which in fact was called at the sub-arbitration and would have satisfied the arbitrators that the turning area was adequate.’
This case cites:

  • Cited – John -v- Rees and Others; Martin and Another -v- Davis and Others ChD ([1970] 1 Ch 345, [1969] 2 All ER 275)
    The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

(This list may be incomplete)
This case is cited by:

  • Appeal from – Aiden Shipping Co Ltd -v- Interbulk Ltd (The ‘Vimeira’) HL ([1986] AC 965, [1986] 2 WLR 1051, [1986] 2 All ER 409)
    A claim had been made against charterers by the ship owners, and in turn by the charterers against their sub-charterers. Notice of motion were issued after arbitration awards were not accepted. When heard, costs awards were made, which were now . .
  • Cited – Carillion Construction Ltd -v- Devonport Royal Dockyard Ltd CA (Bailii, [2005] EWCA Civ 1358, Times 24-Nov-05, [2006] BLR 15, (2005) 104 Con LR 1)
    The parties had disputed payments for subcontracting work on a major project. The matter had been referred to arbitration, and the claimants now appealed refusal of leave to appeal the adjudicator’s award.
    Held: The dispute was complex and . .
  • Cited – Bandwidth Shipping Corporation -v- Intaari (‘Magdalena Oldendorrf’) CA (Bailii, [2007] EWCA Civ 998, Times 31-Oct-07, [2008] 1 Lloyd’s Rep 7, [2008] Bus LR 702, [2007] ArbLR 7)
    An arbitrator hearing a case, and who appreciated that counsel had failed to take a point, should draw counsel’s attention to the point. No duty could arise if the arbitrator did not himself see the point.
    An applicant under section 68 faces a . .

(This list may be incomplete)

Last Update: 06-Jul-16
Ref: 235381

National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’): 1993

References: [1993] 2 Lloyd’s Rep 68
Coram: Cresswell J
Ratio:Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the independent product of the expert uninfluenced as to form or content by the exigencies of litigation Whitehouse v. Jordan
2. An expert witness should provide independent assistance to the Court by way of objective unbiased opinion in relation to matters within his expertise . . An expert witness in the High Court should never assume the role of an advocate.
3. An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion . . 4. An expert witness should make it clear when a particular question or issue falls outside his expertise. . . 5. If an expert’s opinion is not properly researched because he considers that insufficient data is available, then this must be stated with an indication that the opinion is no more than a provisional one . . In cases where an expert witness who has prepared a report could not assert that the report contained the truth, the whole truth and nothing but the truth without some qualification, that qualification should be stated in the report.’
This case cites:

  • Cited – Whitehouse -v- Jordan HL ([1981] 1 WLR 246, Bailii, [1980] UKHL 12, [1981] 1 All ER 267)
    The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
    Held: In this case most of the evidence at issue . .
  • Cited – Pollivitte Ltd -v- Commercial Union Assurance Company Plc ((1987) 1 Lloyds Rep 379)
    An expert witness should provide independent assistance to the court by way of objective unbiased opinion in relation to matters within his expertise. . .
  • Cited – Graigola Merthyr Co Ltd -v- Swansea Corporation ([1928] 1 Ch 31)
    Tolmin J considered the duties of an expert witness: ‘long cases produce evils . . In every case of this kind there are generally many ‘irreducible and stubborn facts’ upon which agreement between experts should be possible and in my judgment the . .
  • Mentioned – In Re J ([1990] FCR 193)
    An expert witness should state the facts or assumption upon which his opinion is based. He should not omit to consider material facts which could detract from his concluded opinion. An expert witness should provide independent assistance to the . .

(This list may be incomplete)
This case is cited by:

(This list may be incomplete)

Last Update: 22-Jun-16
Ref: 226225

Luckie v Gopert; 26 Nov 1841

References: , [1841] EngR 1156, (1841) Car & M 57, (1841) 174 ER 407 (A)
Links: Commonlii
Ratio:If in assumpsit on a bill of exchange by indorsee against acceptor, with a count upon an account stated, the defendant plead to the firat count that he did not accept, and do not plead at all to the second count, and the award of venire be in the usual form to try ; the Judge at Nisi Prius will try the issue joined, and, if a verdict pass for the plaintiff, a nolle prosequi should be entered as to the count upon an account stated.

Last Update: 13-Jun-16
Ref: 309334

Steel v Commissioner of the Metropolitan Police; 10 Feb 1993

References: Unreported, 10 February 1993
Coram: Beldam, Dillon, and Roch LJJ
Ratio:The plaintiffs sued three police officers for malicious prosecution. Specific discovery of documents relating to the previous misconduct of one of these officers was refused.
Held: Appeal allowed. Confessions were the only evidence against the plaintiffs, who had served their time afer convictions for robbery which were subsequently quashed. They said the confessions were fabricated. Their appeals were allowed after evidence that officers had improperly procured the conviction of other defendants in similar ways. To succeed the plaintiffs had to prove that prosecutions were unfounded. The officers’ state of mind was essential. Documents were sought to be discovered to provide evidence of similar facts in proof of the misconduct the prosecution. Evidence of the officers’ dishonesty went beyond discrediting him as a witness. They showed similar conduct in other cases. The judge refused specific discovery saying it was not similar fact evidence. The matters relied on were not concerned to rebut a defence of accident or coincidence. They did not show system, and they had no direct probative value in relation to the issue in the present case. They were merely attacks on credit, and the plaintiffs already possessed ample evidence for this purpose. The appeal was allowed. At discovery the court lookd to potential rather than actual admissibility. ‘In my view conduct of this kind is so contrary to the expected standard of behaviour of an investigating police officer that, if proved, it is capable of rendering it more probable that the plaintiffs’ alleged confession was not made and proving that D/Sgt Day had no sufficient belief in the grounds of and an improper motive for the prosecution of the plaintiffs.’ For the purpose of specific discovery, it was enough to show ‘sufficient similarity’ (as opposed to a ‘striking similarity’) between the other conduct and the conduct in the present action. He dismissed the ‘mere propensity’ argument in these terms: ‘I consider the significance of the misconduct alleged went beyond mere propensity. All similar fact evidence relating to misconduct on other occasions could be stigmatised as showing a propensity to behave in that fashion, but the allegations in the present case, if accepted, show that on other occasions D/Sgt Day was prepared to pervert the course of justice in a manner which made it more probable that he did so on the occasion in question.’
This case cites:

  • Cited – Regina -v- Boardman HL ([1975] AC 421, [1974] 3 All ER 887, (1975) 60 Cr App R 165, [1974] 3 WLR 673)
    The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
    Held: In order to be admissible similar facts must bear a . .
  • Cited – Director of Public Prosecutions -v- P HL ([1991] 93 Crim App R 267, [1991] 2 AC 447, [1991] 3 All ER 337, [1991] 3 WLR 161)
    The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
    Held: . .

(This list may be incomplete)
This case is cited by:

  • Cited – O’Brien -v- Chief Constable of the South Wales Police CA (Bailii, [2003] EWCA Civ 1085, Times 22-Aug-03, Gazette 02-Oct-03)
    The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
    Held: Comparisons between admission of similar fact evidence in civil and criminal . .
  • Cited – O’Brien -v- Chief Constable of South Wales Police HL (Bailii, [2005] UKHL 26, Times 29-Apr-05, House of Lords, [2005] 2 WLR 1038, [2005] 2 All ER 931, [2005] 2 AC 534)
    The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .

(This list may be incomplete)

Last Update: 09-Jun-16
Ref: 186051

Swaine v The Great Northern Railway Company; 25 Jan 1864

References: [1864] EngR 173, (1864) 4 De G J & S 211, (1864) 46 ER 899
Links: Commonlii
Ratio Occurrences of nuisance, if temporary and occasional only, are not grounds for the interference of the Court of Chancery by injunction, except in extreme cases. Therefore, where a railway company carried down to and deposited on a siding to their line manure which was occasionally not proper manure, and they occasionally allowed it to remain there longer than it ought to have remained : Held, in a suit by a neighbouring landowner for an injunction to restrain the nuisance and for damages:
1. That the court would not interfere by way of injunction.
2. That the Court would not enter into the question of damages, the case being one which, in the judgment ofthe Court, could be more effectually disposed of at law than in equity, and Sir Hugh Cairns’s Act (21 & 22 Vict. c. 27) only giving the Court of Chancery jurisdiction to give damages in any case where a bill is properly filed in it, while Mr. Rolt’s Act (25 & 26 Vict. c. 42) does not make it compulsory on the Court so to do.

Last Update: 21-Apr-16
Ref: 281887

Munden v Charles Frederick Augustus William, Dike Of Brunswick And Luneburg, Sued As Charles Frederick Augustus William D’Este, Commonly Called The Duke Of Brunswick; 8 May 1847

References: [1847] EngR 496, (1846) 4 CB 321, (1847) 136 ER 530
Links: Commonlii
The defendant, having entered an appearance in person as ‘CFAW, Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick,’ delivered a plea to the jurisdiction, with an affidavit of verification, respectively intituled ‘CFAW, sovereign Duke of Brunswick and Luneburg, sued as CFAW D’Este, commonly called the Duke of Brunswick.’ The plaintiff, treating the plea as a nullity, signed judgment. The court refused to set aside the judgment, without an affidavit of merits.-An affidavit with a jurat signed, ‘AB, a com’. &c,’ is sufficient.
Last Update: 18-Feb-16 Ref: 301112

Beattie v Halliday; 4 Feb 1982

References: Unreported 4 February 1982
Coram: Lord Justice-Clerk Wheatley
The court considered a contribution between joint wrongdoers, where the court is concerned with the comparative responsibility of persons who are both liable for the damage.
Held: Lord Justice-Clerk Wheatley said: ‘An appeal court will not lightly interfere with an apportionment fixed by the judge of first instance. It will only do so if it appears that he has manifestly and to a substantial degree gone wrong.’
This case is cited by:

(This list may be incomplete)
Last Update: 02-Feb-16 Ref: 559415

Pemberton v Chappell; 12 Dec 1986

References: [1987] 1 NZLR 1 CA, (1986) 1 PRNZ 183, CA123/86, [1986] NZCA 112
Links: Nzlii
Coram: Somers, Casey, Hillyer JJ
Court of Appeal of New Zealand – The question on a summary judgment application is whether the defendant has no defence to the claim; that is, that there is no real question to be tried.
This case is cited by:

(This list may be incomplete)
Last Update: 10-Nov-15 Ref: 183279

Tasker v Small And Matilda, His Wife, Charles S Ashford, B R Baker, Thomas Mann, Thomas Phillips, Joseph Wakeford, Thomas Hawkins, And Sarah Baker; 18 Nov 1837

References: , [1837] EngR 1060, (1837) CP Coop 255, (1837) 47 ER 494 (B)
Links: Commonlii
One Defendant appeals. Order made thereupon dismissing bll upon grounds equally applicable to other Defendants who did not join in the appeal. Such other defendants can have no benefit of such order, although it renders the decree useless.
This case cites:

  • Appeal from – Tasker -v- Small (, Commonlii, [1836] EngR 780, (1836) Donn Eq 82, (1836) 47 ER 241 (B))
    The words in a Settlement to raise Money by ‘Mortgage, Annuity or otherwise,’ authorises a Sale of a reversionary Estate.
    Lord Cottenham LC said that the rule by which a purchaser becomes in equity the owner of the property sold ‘applies only . .

(This list may be incomplete)
Last Update: 26-Oct-15 Ref: 314177

Re C (A Child); FC 29 Sep 2015

References: [2015] EWFC 79
Links: Bailii
Coram: Sir James Munby P FD
There had been care proceedings as to C. The mother was treated by a psychiatrist, X, and an associate Y. They also prepared expert reports. M formally complained about X, and the charges having been dismissed, the doctors now sought disclosure of further medical recods from the care proceedings. His medical reputation had been severely damaged by reporting of the complaints.
This case cites:

  • Cited – Tournier -v- National Provincial & Union Bank of England CA ([1924] 1 KB 461, [1923] All ER Rep 550, 130 LT 682)
    The court considered the duty of confidentiality owed by a banker to his client. Bankes LJ said: ‘At the present day I think it may be asserted with confidence that the duty is a legal one arising out of contract, and that the duty is not absolute . .
  • Cited – W -v- Egdell CA (Bailii, [1989] EWCA Civ 13, [1990] Ch 359)
    Bingham LJ said: ‘It has never been doubted that the circumstances here were such as to impose on Dr Egdell a duty of confidence owed to W. He could not lawfully sell the contents of his report to a newspaper . . Nor could he, without a breach of . .

Last Update: 07-Oct-15 Ref: 552792

Teign Valley Mining Co. Ltd, v Woodcock; 22 Jul 1899

References: Times 22-Jul-1899
Coram: Darling J
A company claimed for money owed upon calls upon its shares. The defendant, Woodcock, admitted liability to the company but claimed against a Captain Rising that he held the shares as his nominee. The judge admitted in evidence terms of the negotiation between the plaintiffs and Captain Rising in which Captain Rising admitted ownership of the shares standing in the name of the nominee. The judge expressed doubts whether he should have admitted the evidence and said he did so because he had been pressed to do so by counsel. The protection afforded by ‘without prejudice’ does not extend to third parties.
This case is cited by:

  • Cited – Rush & Tomkins Ltd -v- Greater London Council HL ([1989] AC 1280, [1988] 3 WLR 939, Bailii, [1988] 3 All ER 737, [1988] UKHL 7)
    The parties had entered into contracts for the construction of dwellings. The contractors sought payment. The council alleged shortcomings in the works. The principal parties had settled the dispute, but a sub-contractor now sought disclosure of the . .

Last Update: 24-Sep-15 Ref: 253693

MacMurdo v Birch, Mackay, And Laugiion Radgliffe And Another v Same; 12 Feb 1818

References: [1818] EngR 233, (1818) 5 Price 522, (1818) 146 ER 682
Links: Commonlii
A plaintiff having arrested two of the partners on a quo minus, and proceeded against an absent third by ven. fac. Ad. resp. under which issues, and increased issues, had been levied on the partnership goods – the Court refused, on cause shewn against a rule for that purpose, to set aside the proceedings, and order the money levied to be restored, and the effects to be delivered up, although it was sworn, on the part of the absent defendant, that he was absent on his business of mariner, and not for the purpose of avoiding proceedings. – N. – Such a rule discharged with costs.
Last Update: 21-Sep-15 Ref: 332233

The King v The Justices of The West Riding of Yorkshire(In The Matter of The Aire And Calder Navigation, And Lake Lock Railway Companies); 29 May 1834

References: , [1834] EngR 781, (1834) 1 Ad & E 563, (1834) 110 ER 1322
Links: Commonlii
A River Navigation Act provided that no proceeding to be taken in pursuance thereof should be removed by certiorari. By a subsequent statute for improving the same navigation, it was enacted, that all the powers, provisions, exemptions, rules, remedies, regulations, penalties, forfeitures, articles, matters, and things whatsoever, contained in the former Act, should be in full force, and extend to and be applied and enforced as to that Act and the matters therein contained, in as full a manner to all intents and purposes as if therein re-enacted: Held, that these were sufficient words to take away the certiorari on proceedings under the latter Act.
Last Update: 07-Sep-15 Ref: 317457

Ali v Maharanee Inderjeet Singh, Baboo Ramkishen Singh, Ranee Asmodhee Kooer, Ranee Sooneth Koour, Run Bahadoor Singh, Moodeydhur Singh, Lall Narain Singh And Deoputtee Narain Singh; 15 Jul 1871

References: [1871] EngR 36, (1871) 14 Moo Ind App 203, (1871) 20 ER 763
Links: Commonlii
The High Court at Calcutta, at the instance of the Appellant’s Counsel, agreed to confine the decision of that Court to one point, with an undertaking that no appeal to Her Majesty in Council should be made from the decree. Notwithstanding such undertaking, an appeal was brought to England. The High Court certified in the record the undertaking.
Held: the Judicial Committee, on a preliminary objection being taken to the hearing, on the ground of the incompetency of the appeal, said that such undertaking precluded an appeal.

Mann v O’Neill: 1997

References: (1997) 71 ALJR 903
Courts should be reluctant to extend the immunity given to witnesses: ‘the general rule is that the extension of absolute privilege is viewed with the most jealous suspicion, and resisted, unless its necessity is demonstrated’
This case is cited by:

  • Cited – General Medical Council -v- Professor Sir Roy Meadow, Attorney General CA (Bailii, [2006] EWCA Civ 1390, Times 31-Oct-06, [2007] 2 WLR 286, (2006) 92 BMLR 51, [2007] 1 All ER 1, [2006] 3 FCR 447, [2007] LS Law Medical 1, [2007] Fam Law 214, [2007] ICR 701, [2007] QB 462, 92 BMLR 51, [2007] 1 FLR 1398, [2006] 44 EG 196)
    The GMC appealed against the dismissal of its proceedings for professional misconduct against the respondent doctor, whose expert evidence to a criminal court was the subject of complaint. The doctor said that the evidence given by him was . .

Levy v Railton; 26 Nov 1849

References: [1849] EngR 1090, (1849) 14 QB 418, (1849) 117 ER 164
Links: Commonlii
If a plea be so pleaded that it is manifestly intended to embarrass the plaintiff, the Court, on affldavit that the plea is false will set it aside. As, where, to an action by the second indorsee of a bill of exchange against the acceptor, defendant pleaded that the acceptance was obtained from him by fraud of the drawer, that the bill was overdue when indorsed by the drawer to the first indorsee, and that both indorsees at the time of taking the bill, had notice of the premises. A plea under such circumstances is not treated as a mere irregularity.

Talbot v Marshfield; 15 Jun 1865

References: [1865] EngR 589, (1865) 2 Dr & Sm 549, (1865) 62 ER 728
Links: Commonlii
Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them from exercising such discretion, they took a second opinion as to their defence in the
suit.
Upon summons for production by the Plaintiffs :
Held, that, the first case and opinion having reference to the dealings with the trust estate, all the cestuis que trust had a right to inspection, and the Court ordered them to be produced ; but that the second case and opinion being after suit instituted, the Plaintiffs had no right to production.
This case cites:

  • See Also – Talbot -v- Marshfield ([1864] EngR 762, Commonlii, (1864) 2 Dr & Sm 285, (1864) 62 ER 630)
    Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into . .

This case is cited by:

  • Cited – Dawson-Damer and Others -v- Taylor Wessing Llp and Others ChD (Bailii, [2015] EWHC 2366 (Ch))
    The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .

Talbot v Marshfield; 17 Nov 1864

References: [1864] EngR 762, (1864) 2 Dr & Sm 285, (1864) 62 ER 630
Links: Commonlii
Payment into Curt. Discretionary Power in Trustees Over Fund, – Although the mere existence of a discretionary power in trustees over a fund affords no reason why the Court should not order payment of the fund into Court, unless such payment into Court would interfere with the exercise by the trustee of such discretion ; yet where it appeared that trustees were about in the due exercise of a discretionary power to deal with a fund, the Court refused to order payment into Court, although the trustees had not actually parted with the fund.
This case is cited by:

  • See Also – Talbot -v- Marshfield ([1865] EngR 589, Commonlii, (1865) 2 Dr & Sm 549, (1865) 62 ER 728)
    Trustees took counsel’s opinion as to whether they should exercise a discretionary power to advance part of their trust fund for the benefit of some of the cestuis que trust: and others of the cestuis que trust having filed a bill to restrain them . .

Cannan v Reynolds; 12 Jun 1855

References: (1855) 5 El & Bl 301, [1855] EngR 585, (1855) 119 ER 493
Links: Commonlii
Coram: Crompton J, Lord Campbell CJ
The Court has jurisdiction to set aside a judgment on the ground of mistake if an application to do so is made within a reasonable time after the judgment has been acted on. ‘the application must be made within a reasonable time after the judgment is acted on; and the only point on which I have had some doubt in the present case is, whether the lapse of time has not been so considerable that it ought in our discretion to be in itself a bar to this application’ and ‘lapse of time becomes after a season a bar, as soon as the Court in its discretion sees that it has been such as must work prejudice.’ and ‘I think that, in the exercise of this discretion, time is of great importance.’
This case is cited by:

Trevorrow v State of South Australia (No 4); 16 Feb 2006

References: (2006) 94 SASR 64, [2006] SASC 42
Links: Austlii
Coram: The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant entitled to injunction restraining the use of the same documents which were already in the plaintiff’s possession on the ground of an equitable obligation of confidence and public interest immunity – Where confidential information in one document had already been disclosed to a third party – Whether the defendant suffered detriment – Whether misapplication of iniquity rule – Whether the documents were the subject of public interest immunity – Discussion of the principles regarding equitable doctrine of restraining use or publication of confidential information.
Held: It is the circumstances by which the person in possession of the confidential information has acquired that possession rather than the circumstances in which the information was imparted to the initial recipient that is the relevant consideration in considering whether there was a breach of confidence – No conditions of confidentiality attached to disclosure of 10 of the documents – Recipient unaware a mistake had been made if the confidential information had been disclosed unintentionally – No obligation of confidence arose – Unnecessary to consider issues of detriment or application of the iniquity rule – No error by trial judge in failing to find documents subject to public interest immunity – Even if confidentiality had not been lost, trial judge correct to find waiver of privilege – Both appeals allowed for the limited purpose of having the claim of confidentiality with respect to one document remitted to the trial judge for further consideration – Otherwise each appeal dismissed.
This case cites:

  • Cited – Goddard -v- Nationwide Building Society CA ([1987] 1 QB 670, [1986] 3 WLR 734)
    A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defednant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Dimes v Lord Cottenham; 2 May 1850

References: [1850] EngR 499 (A), (1850) 5 Exch 311
Links: Commonlii
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court.
This case cites:

  • See Also – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .

This case is cited by:

  • See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
    Held: Such an endorsement did not mean that the . .
  • See Also – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
  • See Also – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Williams, Executor of Elizabeth Breedon v Breedon; 19 Nov 1798

References: [1798] EngR 236, (1798) 1 Bos & Pul 329, (1798) 126 ER 932
Links: Commonlii
Where a general verdict has been given on two counts, one of which is bad, and it appears by the Judge’s notes that the jury calculated the damages or evidence applicable to the good count only, the Court will amend the verdict by entering it on that count, though evidence was given applicable to the bad count also.

ISC Technologies Limited v Radcliffe; 7 Dec 1990

References: Unreported, December 7, 1990
Coram: Millett J
It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari.
Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to a knowing receipt abroad of the proceeds of such fraud. The rules allowing service out of the jurisdiction where the defendant’s alleged liability arose ‘out of acts committed, whether by him or otherwise, within the jurisdiction’ only applied if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to knowing receipt abroad of the proceeds of such a fraud.
Statutes: Rules of the Supreme Court Order 11 r1(1)(t)
This case is cited by:

  • Cited – Islamic Republic of Pakistan -v- Zardari and others ComC (Bailii, [2006] EWHC 2411 (Comm))
    The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 245213

Crawford v Springfield Steel Co Ltd; 18 Jul 1958

References: Unreported 18 July 1958
Coram: Lord Cameron
The pursuer, a steelworker, had been diagnosed with pneumoconiosis. He had worked for a previous company, and had claimed damages from them
Held: In an exceptional case such as this, a judgment may not conclusively decide the full measure of damage for which B is liable to A, a sum agreed to be paid under a compromise may or may not represent the full measure of B’s liability to A.
This case is cited by:

  • Cited – Heaton and Others -v- AXA Equity and Law Life Assurance Society plc and Another HL (House of Lords, Times 15-May-02, Bailii, [2002] UKHL 15, [2002] CPLR 475, [2002] CP Rep 52, [2003] 1 CLC 37, [2002] 2 AC 329, [2002] 2 WLR 1081, [2002] 2 All ER 961)
    The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.

Williams v Jones; 22 Jan 1845

References: [1845] EngR 394, (1845) 13 M & W 628, (1845) 153 ER 262
Links: Commonlii
Coram: Parke B
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.
This case is cited by:

  • Cited – Rubin and Another -v- Eurofinance Sa and Others SC (Bailii, [2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, Bailii Summary, SC Summary, SC, UKSC 2010/0184)
    The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
  • Cited – Adams -v- Cape Industries plc CA ([1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786)
    The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .

The Grand Junction Canal Company v Dimes; 2 Jun 1849

References: [1850] EngR 243, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, (1849) 17 Sim 38, (1849) 60 ER 1041
Links: Commonlii, Commonlii
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain those actions. The defendant had also challenged the validity of the existing orders.
This case cites:

  • See Also – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .

Uttley v Uttley; 18 Jul 2001

References: Unreported, 18 July 2001
Coram: Hallett J
The Claimant complained about the late disclosure of surveillance evidence.
Held: Balancing the Defendant’s entitlement to use surveillance evidence effectively, against the general case management goal of openness and a ‘cards on the table’ approach, the court found in favour of the Defendant.
Hallett J said: ‘In my judgment, in the circumstances of this case -and I emphasise in the circumstances of this case -the defendant’s solicitors were entitled to hold on to the video recording for a reasonable period of time. This was not simply a case of trying to ambush the claimant at trial. The defendant’s insurers not surprisingly wished to assess the evidence in their possession with the claimant’s up-to-date account before disclosing it. I say not surprisingly in the light of the history of the litigation as I have outlined it. They wanted to use it effectively as cross-examination material. I accept therefore the explanation from Mr Curtis to which I have already referred.
What therefore is a reasonable time in the circumstances of this litigation?
Mr Curtis made it plain in August 2000 that although the defendant’s insurers were prepared to wait for the witness statement until the report from the doctor was available, they wished to have the claimant’s up-to-date witness statement at the same time. They were operating on the basis the medical report would be available within a reasonable time.
They also indicated they had no objection to there being an interim statement from the claimant which could be updated if necessary. They wished to have this material, as they said in their letter, to assess their position when it came to possible negotiations and attempts at settlement. They continued to press for the witness statement and up-to-date schedule, but the claimant’s solicitors seemed to indicate that one would be available as soon as possible. Despite that fact, no up-to-date witness statement or schedule was produced until December.
In my judgment the defendant’s solicitors were entitled to press for an up-to-date witness statement and schedule, and to press for documents of that kind in the summer of 2000. They were entitled to know what the claimant was saying himself, not merely what he had reported to Dr Supramamian. It is right to say that on receipt of the doctor’s report in October the defendant’s insurers would know what the claimant had told him, but it is not unknown in my experience for a claimant to say that a doctor has misunderstood what he or she has said or has failed to record other significant matters that have been said. I entirely understand and sympathise therefore with Mr Curtis’ attitude that he wished to know what the claimant himself was saying.
In any event, it became clear in October that the doctor had to reconsider the question of how the accident occurred yet the trial date was looming in January 2001. I agree entirely with the Master that the claimant’s solicitors should and could have served an up-to-date witness statement from the claimant long before the time that they did. Once served, I have no doubt the video recording would have been served upon them.’
This case is cited by:

  • Cited – Douglas -v- O’ Neill QBD (Bailii, [2011] EWHC 601 (QB))
    The defendant sought permission to adduce CCTV evidence taken secretly. The claimant sought an order for the footage not to be used being an attempt at trial by ambush.
    Held: The defendant’s application succeeded. There had been no breach of . .

In re Blenheim Leisure (Restaurants) Ltd (No 3); 9 Nov 1999

References: Times 09-Nov-1999
Coram: Neuberger J
Neuberger J gave examples of cases where a judge might revisit his decision: a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given.
This case is cited by:

  • Cited – Re L and B (Children) SC (Bailii, [2013] UKSC 8, [2013] 1 WLR 634, WLRD, Bailii Summary, UKSC 2012/0263, SC Summary, SC, [2013] WLR(D) 69, [2013] 2 All ER 294, [2013] 2 FCR 19, [2013] 2 FLR 859, [2013] Fam Law 664)
    The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .

In Re Dimes; 26 Jul 1850

References: [1850] EngR 769, (1850) 3 Mac & G 4, (1850) 42 ER 162
Links: Commonlii
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the warrant ceased to be the order of the Vice-Chancellor, and it could not be challenged. On the return of a writ of habeas corpus, the court’s task is limited to ensuring that the custody arises under a court having authority in that behalf.
This case cites:

  • See Also – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
  • See Also – Dimes -v- Lord Cottenham ([1850] EngR 499 (A), Commonlii, (1850) 5 Exch 311)
    The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .

This case is cited by:

  • See Also – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
  • See Also – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Bassford v Blakesley; 27 Jan 1842

References: [1842] EngR 189, (1842) 6 Beav 131, (1842) 49 ER 775
Links: Commonlii
Where deeds are impeached for fraud, the mere allegation of fraud by the bill will not entitle the Plaintiff to an order for their production ; on the other hand, in order to obtain a production, it is not necessary that the fraud should be admitted by the answer, the Court must look at the circumstances of each case.
Order made for the production of a deed impeached for fraud, though the fraud was denied by the answer, the case on the whole being such as to render an inspection proper.

The King v The Justices of Herefordshire; 9 May 1820

References: [1820] EngR 359, (1820) 3 B & A 581, (1820) 106 ER 773 (B)
Links: Commonlii
By 49 G 3, c 68, s 5, ten clear days’ notice of the intention to appeal is required.
Held, that the ten days are to be taken exclusively, both of the day of serving the notice and the day of holding the sessions.
One Joseph Stinton, having had an order of filiation made on him, as the father of a bastard child, served a notice of appeal to the Quarter Sessions for the county of Hereford, on the morning of the 9th of October. The sessions were holden on the 19th of the same month; and the Court refused to enter on the appeal, being of opinion that the notice was insufficient, the statute 49 G. 3, e. 68, s. 5, requiring that the person aggrieved by such an order should give notice ten clear days before the Quarter Sessions, of his intention to appeal, and the cause and matter thereof. W. E. Taunton having obtained a rule nisi for a mandamus to the justices to receive the Abraham now shewed cause against it, and relied on the words of the statute, which could only be satisfied by a notice wherein there should be ten clear days, exclusive of the day of serving it and the day of holding the sessions.
WE Taunton, contra, contended that the word ‘clear’ meant only complete days ; and referred to the computation of the octave of Saint Hilary, and the quarto die post of the term, to shew that the days of a stated period were in law generally reckoned both inclusively, and that all that the Legislature had in view, in this instance, was to prevent such a computation [582] being used. But the Court were of opinion, that ten clear days meant ten perfect intervening days between the act done and the first day of the sessions, and held, therefore, that the notice was defective ; and they referred to Roberts v. Stacey (13 East, 21).
Rule discharged.
This case is cited by:

  • Applied – Regina -v- Swansea City Council, ex parte Elitestone Ltd CA ([1993] 46 EG 181)
    The company appellant, E, wished to develop its land. The Council had declared it to be a conservation area. E said that they had not given the necessary notice of the meeting of the sub-committee at which the initial decision had been made. E . .

Smith v Brooksbank; 25 Jun 1834

References: , [1834] EngR 880, (1834) 7 Sim 18, (1834) 58 ER 743 (B)
Links: Commonlii
A bequeathed a reversionary interest, expectant on his wife’s death, in a sum of stock to B. B. bequeathed it to C., and C. bequeathed it to D, who, on the death of A’s wife, filed a bill against the trustees to have the stock transferred to him, alleging that the executors of A. and B, and C. had successively assented to the bequests.
Held: that the executors were not necessary parties.
This case is cited by:

  • See Also – Brooksbank -v- Smith (, Commonlii, [1836] EngR 447, (1836) Donn Eq 11, (1836) 47 ER 193 (B))
    In this case, trustees under a will, who were solicitors, had by mistake transferred stock to a person not entitled. Baron Alderson said, this being under circumstances of mistake, it appeared clear to him that the Plaintiffs were entitled to . .
  • See Also – Brooksbank And Another -v- Smith (, Commonlii, [1836] EngR 446, (1836) 2 Y & C Ex 59, (1836) 160 ER 311)
    The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on . .

Collier v Hicks; 7 Jun 1831

References: (1831) 2 B & Ad 663, [1831] EngR 686, (1831) 109 ER 1290
Links: Commonlii
Coram: Lord Tenterden CJ
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal statute, and were proceeding to hear and determine the same, when the plaintiff (being an attorney) entered the police office with the informer, not as his friend or as a spectator, but for the avowed purpose of acting as his attorney and advocate touching the information ; and as such attorney and advocate, without the leave, and against the will, of the justices, was taking notes of the evidence of a witness then under examination before them, touching the matter of the said information, and was acting and taking a part in the proceedings as an attorney or advocate on behalf of the informer; that the above two defendants stated to the plaintiff, that it was not their practice to suffer any person to appear and take part in any proceedings before them as an attorney or advocate, and requested him to desist from so doing; and although they were willing to permit the plaintiff to remain in the police office as one of the public, yet that he would not desist from taking a part in the proceedings as such attorney or advocate, but asserted his right to be present, and to take such part, and to act as such attorney and advocate for the informer; and unlawfully, and against the will of the justices, continued in the police office, taking part and acting as aforesaid, in contempt of the justices ; whereupon, by order of the above two defendants, the other defendants turned the plaintiff out of the office :
Held: on demurrer, that this was a good plea, inasmuch as no person has by law a right to act as an advocate on the trial of an information before justices of the peace, without their permission.
Lord Tenterden CJ said: ‘Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the Justices.’
This case is cited by:

  • Cited – McKenzie -v- McKenzie CA ([1971] P 33, [1970] 3 WLR 472, CAT 679/1991)
    Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .
  • Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA (Bailii, [2005] EWCA Civ 759, Times 27-Jun-05)
    In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
    Held: The . .
  • Cited – Regina -v- Bow County Court Ex parte Pelling QBD (Times 08-Mar-99, Bailii, [1999] EWHC Admin 181)
    Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
    Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .

Regina, On The Prosecution of The Duke Of Brunswick v Lowe And Clements; 3 May 1853

References: [1853] EngR 512, (1853) 8 Exch 697, (1853) 155 ER 1532
Links: Commonlii
An outlaw cannot enforce payment of damages recovered in an action of libel by sciere facias on th erecognisance of the Crown, under the 60 Geo J c ( s8 and 11 Geo 4 & 1 Will 4, e 73, s 3. And therefore, where notice of a rule to stay proceedings on the ground of his outlawry was served on the Attorney-General and he did not appear, the Court made the rule absolute.

Three Rivers District Council and others v The Governor and Company of the Bank of England (No 6): CA 1 Mar 2004

References: [2004] EWCA Civ 218, Times 03-Mar-2004, Gazette 18-Mar-2004, [2004] 3 All ER 168, [2004] QB 916, [2004] 2 WLR 1065
Links: Bailii
Coram: Lord Justice Longmore Lord Phillips Of Worth Matravers, Mr Lord Justice Thomas
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a solicitor to his client attracts privilege. The broad protection which did exist did not extend to situations where the dominant purpose was not the obtaining of legal advice and assistance in relation to legal rights and obligations. What was protected was advice which required a knowledge of the law. Here, the advice was on matters of presentation, though that might have included matters of law. That possibility would not protect the entire range of assistance given. Where the advice was as to how the witness might present his case so as perhaps to avoid criticism, that should not itself attract privilege. The inquiry was not concerned with legal rights and liabilities. The communications did not in general attract privilege.
Statutes: Tribunals of Inquiry Evidence Act 1921 1(3)
This case cites:

  • Cited – Three Rivers District Council and others -v- The Governor & Company of the Bank of England (No 7) CA (Bailii, [2003] EWCA Civ 474, Times 19-Apr-03, Gazette 12-Jun-03, [2003] 3 WLR 667, [2003] QB 1556, [2003] CPLR 349)
    Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
    Held: Legal advice privilege attached to the communications between a client and the . .
  • Appeal from – Three Rivers District Council -v- Bank of England (No 5) ComC ([2003] EWHC 2565 (Comm))
    The defendant bank sought protection from disclosure of advice it had received from its solicitors.
    Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications . .
  • Cited – Balabel -v- Air India CA ([1988] Ch 317)
    When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
  • Cited – Greenhough -v- Gaskell CA ((1833) 1 My & K 98, Commonlii, [1833] EngR 105, (1833) Coop T Br 96, (1833) 47 ER 35)
    The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
  • Cited – Carpmael -v- Powis ((1846) 1 Ph 687)
    The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
  • Cited – Wheeler -v- Le Marchant CA ((1881) 17 Ch D 675)
    Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
  • Cited – Minter -v- Priest HL ([1930] AC 558)
    The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
  • Cited – Great Atlantic Insurance -v- Home Insurance CA ([1981] 2 All ER 485, [1981] 2 Lloyds Rep 138, [1981] 1 WLR 529)
    The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
    Held: The entirety of the document was privileged, but by disclosing part, the . .
  • Cited – Wilson -v- Northampton and Banbury Junction Railway Co ((1872) LR 14 Eq 477, (1874) LR 9 Ch App 279)
    Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
  • Appealed to – Three Rivers District Council and others -v- Governor and Company of the Bank of England (No 6) HL (House of Lords, [2004] UKHL 48, Times 12-Nov-04, Bailii, [2004] 3 WLR 1274, [2005] 1 AC 610)
    The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .

This case is cited by: