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 . .

References: [1842] EngR 1042 (A), (1842) 4 Man & G 843
Links: Commonlii
Service of a declaration or ejectment upon a person found upon the premises, but not shewn to be resident there. Held to be insufficient.

References: [1857] EngR 413, (1857) 24 Beav 137, (1857) 53 ER 309
Links: Commonlii
A party interested being summoned to appear as witness, is not justified in refusing to be sworn before the Chief Clerk, on the ground that he will not be able to have the assistance of counsel before the Chief Clerk, and that he ought, therefore, to be examined before the Judge or the examiner.

References: [1844] EngR 988 (A), (1844) 7 Man & G 35
Links: Commonlii
Where a revising barrister having assented to the substance of a special case agreed upon between the parties thereto, but died without having finally settled the terms in which the statement should be made, the court refused to allow the case to be entered. Whether, supposing the assent of the revising barrister to have been given to the special case in its terms, the court would allow the case to be entered without his signature after his death, quaere.

References: [1855] EngR 778, (1855) 2 K & J 28, (1855) 69 ER 680
Links: Commonlii
A party to a cause, filing or giving notice to read an affidavit before the evidence is closed, may be cross-examined upon such affidavit at once, without waiting until the evidence is closed.
A party having filed or given notice to read an affidavit is not at liberty to withdraw it.

References: , [1839] EngR 1140, (1839) 10 Sim 345, (1839) 59 ER 647
Links: Commonlii
After the Defendants had answered the bill, one of the Plaintiffs died; upon which a bill of revivor was filed, praying that the Defendants might answer it. The defendants, in their answer, admitted the right to revive, and stated that, since answering the original bill, they had become bankrupt, and obtained their certificates. Held, that those statements were not impertinent.

References: Unreported, 20 December 2013

References: [1860] EngR 1096, (1860) 2 De G F & J 333, (1860) 45 ER 649
Links: Commonlii
Coram: Lord Campbell LC
This case is cited by:

• Cited – Watson -v- Sadiq and Another CA (Bailii, [2013] EWCA Civ 822)
  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 . .

References: [1853] EngR 1103 (A), (1853) 18 Beav 74
Links: Commonlii
Motion to pay money into Court, on a certificate of the Chief Clerk, signed and approved by the Judge, but made before the expiration of the eight days, refused.

References: [2008] EWHC 1729 (Comm), [2008] 2 CLC 258,
Links: Bailii
Coram: Beatson J
The court was asked whether it could go behind an affidavit sworn by a person claiming litigation privilege, and, if so, in what circumstances and by what means.
Held: The burden of proof is on the party claiming privilege to establish it; An assertion of privilege and a statement of the purpose of the communication over which privilege is claimed in an affidavit are not determinative and are evidence of a fact which may require to be independently proved; it is difficult to go behind an affidavit of documents at an interlocutory stage of proceedings. Where the court is not satisfied on the basis of the affidavit and the other evidence before it that the right to withhold inspection is established, there are four options open to it: 1) It may conclude that the evidence does not establish a legal right to withhold inspection and order inspection; It may order a further affidavit to deal with matters which the earlier affidavit does not cover or on which it is unsatisfactory; It may inspect the documents; At an interlocutory stage a court may, in certain circumstances, order cross-examination of a person who has sworn an affidavit, for example, an affidavit sworn as a result of the order of the court that a defendant to a freezing injunction should disclose his assets.
This case is cited by:

• Cited – Property Alliance Group Ltd -v- The Royal Bank of Scotland Plc ChD (Bailii, [2015] EWHC 321 (Ch))
  The claimant said that interest rate manipulation by the defendant bank had caused it losses in interest rate derivatives and SWAP agreements. In the course of that the claimants sought disclosure of internal documents. The defendants resisted . .

(This list may be incomplete)
Last Update: 11-Feb-16 Ref: 271151

References: [1838] EngR 1111, (1838) 1 Beav 54, (1838) 48 ER 859 (A)
Links: Commonlii
A motion for an injunction and receiver is irregular where the Plaintiff amends his bill between the time of giving notice of moving and the time of bringing on the motion.

References: [1819] EngR 635, (1819) 4 Madd 396, (1819) 56 ER 751 (B)
Links: Commonlii
A Plaintiff moving, as of course, to amend his bill after he has taken exceptions to the answer, waives his exceptions ; he must move specially for liberty to amend, without prejudice to the exception.

References: [1999] EWCA Civ 1650
Links: Bailii
Coram: Waller, Mance LJJ
Application for leave to appeal. Original leading counsel had consented to the abandonment of parts of the claim. New leading counsel now sought to revive them.
Held: The claim had little prospect of success. Leave to appeal refused.
This case cites:

• Cited – Arthur J S Hall & Co (A Firm) -v- Simons etc CA (Times 18-Dec-98, Bailii, Bailii, [1998] EWCA Civ 1943, [1999] 3 WLR 873, Bailii, [1998] EWCA Civ 3539, [1999] 1 FLR 536, [1999] PNLR 374, [1999] 2 FCR 193, [1998] NPC 162, [1999] Fam Law 215, [1999] Lloyd’s Rep PN 47)
  The court considered the limits on liability for professional negligence for lawyers in conduct associated with litigation, but outside the courtroom.
  Held: Though the court must balance the need for protection against negligence by lawyers . .
• Cited – Sayle -v- Cooksey ([1969] 2 Lloyd’s Rep 618)
  The court questioned whether the availability of an alternate remedy for a party against his solicitors should affect the decision to strike out a plaintiff’s claim. . .
• Cited – Birkett -v- James HL ([1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38)
  The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .
• Cited – Hytec Information Systems Limited -v- Council of City of Coventry CA (Times 31-Dec-96, Bailii, [1996] EWCA Civ 1099, [1997] 1 WLR 1666)
  The Court directed that unless particulars were served by a specified date the defendant’s claim should be struck out. The defendant served some particulars but it was decided that the defendant had deliberately flouted the unless order and its . .

References: [1972] 2 Lloyd’s Rep 120
Coram: Brandon J
The plaintiff shipowners claimed damages for detention following a collision with the defendants’ ship. There was an issue as to how long the ship repairs would have taken if they had been done at Bremen. The defendants adduced evidence on this point in the form of an exchange of letters.
Held: In considering what weight to give to the letters under section 6(3) of the Civil Evidence Act 1968, the court identified relevant circumstances, and said also that it was necessary to take account of the fact that the evidence was unsworn and could not be tested by cross-examination. This was particularly important where the evidence related to hypothetical rather than actual facts.
Brandon J said: ‘My view is quite simply that matters of this importance, in a case of this kind, should be proved by oral evidence, and that letters obtained at the time and in the way that these were obtained should have little weight attached to them. I cannot think that the Civil Evidence Act 1968, was intended, in general, to change the long established system by which seriously disputed central issues in civil cases are tried on oral evidence, given on oath and capable of being tested by cross-examination, and to substitute for it a system of trial on unsworn documents brought into existence by parties to the proceeding post litem mortam, and I do not think the Act should be used, or rather abused, so as to produce such a result.’
Statutes: Civil Evidence Act 1968 6(3)
This case is cited by:

• Cited – Welsh -v- Stokes and Another CA (Bailii, [2007] EWCA Civ 796, [2008] 1 All ER 921, [2008] 1 WLR 1224, [2007] PIQR P27, (2007) 151 SJLB 1020, [2007] PIQR P27)
  The claimant sued a riding stables after she was badly injured on being thrown from the horse provided. Her claim in negligence failed, but she succeeded under strict liabiilty under the 1971 Act, after the judge relied upon hearsay evidence.
  

References: [1835] EngR 947, (1835) 4 Ad & E 90, (1835) 111 ER 721
Links: Commonlii
Since the rule (Hil 4 W. 4) that the entry of proceedings on the record for trial, or on the judgment roll, shall be taken to be, and shall be, the first entry of the proceedings upon record, it is not necessary to enter upon the Nisi Prius record a plea in abatement and judgment of respondent ouster thereupon.

References: [1819] EngR 402, (1819) 2 B & A 562, (1819) 106 ER 471
Links: Commonlii
Where a sheriff claimed as of right, upon a warrant issued by him in the execution of his oflice, a larger fee than he was entitled to by law, and the attorney paid it in ignorance of the law : Held that the latter might maintain money had and received for the excess paid above the legal fee, or might set off the same in an action by the sheriff against him. Held, also, that the sheriff was not entitied to more than a fee of fourpence upon every warrant issued by him.

References: [1851] EngR 878, (1851) 7 Exch 67, (1851) 155 ER 859
Links: Commonlii
The court has power, independently of statute to compel the plaintiff to produce for the defendant’s inspection a document upon which the action is brought, where the defendant is a party to te document and has no copy of it.
This case is cited by:

• See Also – Bluck -v- Gompertz ([1852] EngR 689, Commonlii, (1853) 7 Exch 862, (1852) 155 ER 1199)
  The defendant had signed an undertaking to procure the acceptance of two bills for £200 and £146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for £150. The plaintiff drew . .

References: [2002] 2 Lloyd’s Rep 293, [2002] EWCA Civ 509, [2002] 2 All ER (Comm) 97
Links: Bailii
Coram: Mance LJ, Thorpe LJ, Neuberger J
Where the correctness of a finding of primary fact or of inference is in issue (on appeal), it cannot be a matter of simple discretion how an appellate court approaches the matter. Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. The appellate court should not interfere with a judge’s findings of primary fact where they are based on oral evidence unless it is satisfied that the judge was plainly wrong.
Mance LJ said: ‘Once the appellant has shown a real prospect (justifying permission to appeal) that a finding or inference is wrong, the role of an appellate court is to determine whether or not this is so, giving full weight of course to the advantages enjoyed by any judge of first instance who has heard oral evidence. In the present case, therefore, I consider that (a) it is for us if necessary to make up our own mind about the correctness or otherwise of any findings of primary fact or inferences from primary fact that the judge made or drew and the claimants challenge, while (b) reminding ourselves that, so far as the appeal raises issues of judgment on unchallenged primary findings and inferences, this court ought not to interfere unless it is satisfied that the judge’s conclusion lay outside the bounds within which reasonable disagreement is possible. In relation to (a) we must, as stated, bear in mind the important and well-recognised reluctance of this court to interfere with a trial judge on any finding of primary fact based on the credibility or reliability of oral evidence.’
Statutes: Fishing Vessel (Safety Provisions) Rules 1975 (SI 1975 No. 330) 16
This case cites:

• Cited – X (Minors) -v- Bedfordshire County Council; M (A Minor) and Another -v- Newham London Borough Council; Etc HL (Independent 30-Jun-95, Times 30-Jun-95, [1995] 2 AC 633, Bailii, [1995] UKHL 9, [1995] 2 FLR 276, [1995] 3 All ER 353, [1995] 3 WLR 152, [1995] 3 FCR 337)
  Damages were to be awarded against a Local Authority for breach of statutory duty in a care case, only if the statute was clear that damages were capable of being awarded. in the ordinary case a breach of statutory duty does not, by itself, give . .

This case is cited by:

• Cited – Merer -v- Fisher and Another CA (Bailii, [2003] EWCA Civ 747)
  A right of pre-emption had misdescribed the property when it was registered. The land was transferred without regard to the right of pre-emption. It was found as a fact that no money passed for the transfer, and the claimants said the unregistered . .
• Cited – Rowland -v- The Environment Agency CA ([2003] EWCA Civ 1885, Bailii, Times 20-Jan-04, Gazette 26-Feb-04, [2004] 3 WLR 249, [2005] Ch 1)
  The claimant owned a house by the river Thames at Hedsor Water. Public rights of navigation existed over the Thames from time immemorial, and its management lay with the respondent. Landowners at Hedsor had sought to assert that that stretch was now . .
• Cited – Agulian and Another -v- Cyganik CA (Bailii, [2006] EWCA Civ 129)
  The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
  Held: He had retained his domicile of birth: . .
• Cited – London Borough of Lewisham -v- Malcolm and Disability Rights Commission CA (Bailii, [2007] EWCA Civ 763, [2008] 2 WLR 369, [2008] Ch 129, [2008] L & TR 4, [2008] HLR 14, [2007] 32 EG 88, [2008] BLGR 189)
  The court was asked, whether asked to grant possession against a disabled tenant where the grounds for possession were mandatory. The defendant was a secure tenant with a history of psychiatric disability. He had set out to buy his flat, but the . .
• Cited – Morrison Sports Ltd and Others -v- Scottish Power SC (Bailii, [2010] UKSC 37, WLRD, [2010] WLR (D) 202, Bailii Summary, SC, SC Summary, [2010] 1 WLR 1934, 2010 SLT 1027)
  A fire caused substantial damage to buildings. It arose from a ‘shim’ placed in a fuse box which then overheated. The parties disputed whose employee had inserted the shim. The Act under which the Regulations had been made was repealed and replaced . .
• Cited – Fortune and Others -v- Wiltshire Council and Another CA (Bailii, [2012] EWCA Civ 334, [2013] 1 WLR 808, [2012] 3 All ER 797, [2012] 2 P &CR 11, [2012] WLR(D) 90, WLRD, [2012] JPL 1092)
  The court considered the contnuation of public rights of way against the new system of the ending of certain unrecorded rights.
  Held: he appeal failed. ‘As a matter of plain language, section 67(2)(b) does not, in our judgment, require the . .

References: [1855] EngR 777, (1854-1855) 6 De G M & G 170, (1855) 43 ER 1196
Links: Commonlii
On the death of an usher of the Court in 1702, a large sum, for which as usher he was accountable was due from him : in a suit instituted for the administration of his estate, more than sufficient was realized to liquidate the amount, and all sums actually claimed were paid : in 1719 the Court ordered a fund sufficient to answer the unclaimed sums to be invested, and directed the interest to be paid to the representative of the deceased usher until further order : similar orders for payment of the interest were from time to time down to 1833 made on the application of the existing representative of the usher; and in 1854, a petition was presented for the same purpose by the then representative. On a full discussion of the case, and on the petition being amended, an order was made for the transfer to him of the principal fund.
Whether there can be an appeal to the House of Lords upon a matter relating to the Suitors’ Fund, Quaere, by the Lord Chancellor.

References: , [1840] EngR 376, (1840) 8 Ad & E 945, (1840) 112 ER 1099
Links: Commonlii
When a cause made a remanet has been tried, a verdict found for the plaintiff, and judgment signed by him, it is too late to object that the jury process was altered before the trial, without proper authority. Though the defendant swears that he did not discover the supposed irregularity till the taxation of costs.

References: [1851] EngR 293 (B), (1851) 13 Beav 240
Links: Commonlii
A Defendant who had appeared by a solicitor in the original suit, but not in the supplemental suit, being in contempt, went to reside abroad. The Court ordered that service on the solicitor of the proceedings in the supplemental suit should be good service.

References: [1849] EngR 1197, (1849) 12 Beav 279, (1849) 50 ER 1068
Links: Commonlii
Exceptions for insufficiency will be overruled, if they vary, in a material particular, from the form of the interrogatory, as where the interrogatory is in the present tense and the exception is in the past.
An interrogatory asked whether certain sums had not come to the Defendant’s hands, and whether he had not applied ‘the same.’ The Defendant denied that any sums had come to his hands, but did not answer the remainder. Held, that the answer was sufficient.
An interrogatory asked whether the Defendant had not had communication with A. B and C. D. and other persons. The answer admitted communications with A B but denied any with any other persons, omitting the name of C. D. Held, that being specially interrogated as to C. D., the general answer was insufficient.

References: [1847] EngR 936, (1847) 5 CB 218, (1847) 136 ER 860
Links: Commonlii
Where a defendant came to the court in a vexatious and expensive manner, to apply for an amendment that might have been obtained at chambers, his rule was discharged with costs, unless he would consent to pay the costs of the amendment.
Last Update: 17-Feb-16 Ref: 301552

References: [1990] 2 Lloyds Rep 210
Coram: McCowan LJ and Sir John Megaw, Lloyd LJ dissenting
Various defendants were served out of the jurisdiction but with the wrong copies of the writs, receiving a copy addressed to another defendant. One defendant received no writ at all, but only a form of acknowledgment of service.
Held: The court unanimously accepted that O.2. r.1 was to be given wide effect. The majority held that service, the step in the proceedings which had been attempted, was to be regarded as valid in the case of all defendants.
Lloyds LJ accepted that for the defendants served with the wrong copy writs, the court had a discretion: ‘The service was grossly defective. But service, or purported service, it remained.’ However, he would not have exercised that discretion in the claimant’s favour. As to the defendant served only with an acknowledgment of service, this was ‘an omission which is so serious that…[i]t cannot be described as a failure to comply with the requirements of the Rules by reason of something left undone . . The service of the form of acknowledgment cannot make up for the absence of the writ.’
Statutes: Rules of the Supreme Court 2 r1
This case is cited by:

• Distinguished – 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 – 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 . .

Links: Judiciary
Coram: Lord Neuberger MR
This case is cited by:

• Applied – Hutcheson -v- Popdog Ltd and Another CA (Bailii, [2011] EWCA Civ 1580)
  The claimant had obtained an injunction to prevent the defendant publishing private materials regarding him. That injunction had been continued by consent but was no challenged by a third party news publisher.
  Held: Leave to appeal was . .
• Cited – NNN -v- Ryan and Others QBD (Bailii, [2013] EWHC 637 (QB))
  The Court gave its reasons for requiring the delivery up of materials said to be confidential and making an order for anonymity, finding that the claimant had been blackmailed. . .

References: [1849] EngR 1084, (1849) 8 CB 617, (1849) 137 ER 649
Links: Commonlii
The want of a date in the jurat of an affidavit, is not cured by a reference to it in another affidavit as ‘an affidavit of A B sworn on such a day.’ — Semble, that this court will not give costs where a rule is discharged solely on the ground that the aaffidavit on which it is founded has a defective jurat.

References: [1844] EngR 982, (1844) 6 QB 544, (1844) 115 ER 204
Links: Commonlii
A defendant arrested on capias upon a Judge’s order, under stat. 1 & 2 Vict c, 110, s. 3, is supersedeable unless the plaintiff proceed to execution within two terms inciusive after judgment, conformably to R Hil. 2 W. 4, I. 85. And, where judgment in debt was signed for want of a plea: Held, that the time ran from such signing, although the costs were not taxed.

References: [1849] EngR 422, (1849) 2 HLC 415, (1849) 9 ER 1149
Links: Commonlii
Were it appeared to the House that a mistake, committed by an officer of the Court below, in entering the judgment, of that Court, was made the ground of a writ of error, the arguments on the writ of error brought on such judgment were stopped, and the case was ordered to stand over, to allow the parties to apply to the Court below to amend the error.
The House made this order, after referring to the report of the opinions of the Judges of the Court below, as stated in the printed reports of the decisions of that court.
Last Update: 17-Feb-16 Ref: 298727

References: [1844] EngR 1042, (1844) 13 M & W 494, (1844) 153 ER 206
Links: Commonlii
A judgment (without satisfaction) recovered against one of two joint debtors is a bar to an action against the other: – Secus where the debt is joint and several. – And it is pleadable in bar, and not in abatement. – Such a plea eed not contain a verification by the record, or prayer of judgment.
This case is cited by:

• Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
  Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

References: [2009] EWHC 3291 (Ch)
Links: Bailii
Coram: Peter Smith J
Applications for disclosure of settlement agreements between some defendants and the claimants.

References: [1981] TRL 126 DC, (1982) 90 ITSA MR 112
Coram: McNeil J
The trading standards officer of the relevant authority and who wished to bring the complaint had been unsure as to the identity of the offender, because he was dealing with a corporate defendant and a number of possible candidates as the proposed defendant. McNeil J considered what was meant by ‘discovery’ in connection with time limits: ‘I think it is sufficient for the purposes of this case, to say that the word ‘discovery’ means no more in this context than all the faxed material to found the relevant charge under the Act were disclosed to the appropriate officer. The word ‘discovery’ here does not import any investigation by the officer. It is simply his knowledge from disclosure to him in some way, of the material facts which would found the offence.’
This case is cited by:

• Adopted – Tesco Stores Ltd -v- London Borough of Harrow Admn (Bailii, [2003] EWHC 2919 (Admin))
  The court considered at what point the knowledge of the prosecuting authorities became sufficient to begin time running on a prosecution: ‘The question to ask in these circumstances is whether the facts disclosed, objectively considered, would have . .
• Cited – Donnachie, Regina (on the Application of) -v- Cardiff Magistrates’ Court Admn (Times 22-Aug-07, Bailii, [2007] EWHC 1846 (Admin))
  The defendant appealed refusal of the district judge to state a case on the basis of having no jurisdiction.
  Held: Where the magistrate is acting not as an Examining Magistrate, but is deciding a preliminary issue as to jurisdiction, his . .

References: [1796] EngR 2497, (1796) 7 TR 20, (1796) 101 ER 834
Links: Commonlii
A judgment signed in any part of the term or the subsequent vacation relates back to the first day of the term, notwithstanding the death of the defendant before judgment actually signed ; and an execution against the goods of the defendant may be taken out upon it, tested the first day of the term.

References: [1839] EngR 616, (1838) 5 Bing NC 410, (1839) 132 ER 1157
Links: Commonlii
A return to a writ of false judgment that the Plaintiff in error has not given security for prosecuting his suit, is ill.

References: [2008] EWHC 1841 (Comm), [2008] 2 Lloyds Rep 396, [2009] 1 All ER (Comm) 315
Links: Bailii
Coram: Burton J
Final application for a third party debt order.
This case is cited by:

• Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
  The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

References: Unreported 9th November 1979
The court was prepared to use the nomination ‘John Doe’ to identify an individual whose name was not known to the court.
This case is cited by:

• Cited – Barnett -v- French CA ([1981] 1 WLR 848)
  The court considered how defendants should be named in court proceedings where their identity was unknown. . .

References: [1790] EngR 2362, (1790) 3 TR 643, (1790) 100 ER 780 (A)
Links: Commonlii
If the defendant bring a writ of error, and the plaintiff bring another action on the judgment, and recover, he cannot sue out execution on the second judgment till the writ of error be determined.
Last Update: 19-Nov-15 Ref: 365415

References: Times 25-Nov-1998, [1998] EWCA Civ 1804
Links: Bailii
A Master of the Supreme Court has power himself to hold a trial of certain issues subject to the consent of the parties and the general rules of court. Such a decision would be appealable to the Court of Appeal, and not to a judge in chambers.

References: (1843) 3 Hare 100, [1843] EngR 917, (1843) 67 ER 313
Links: Commonlii
Coram: Sir James Wigram VC
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’
This case is cited by:

• Applied – Wain -v- Sherwood & Sons Transport Ltd CA (Times 16-Jul-98, Gazette 24-Jun-98)
  Plaintiff, having succeeded in claim for damage to his car, was subject to an action estoppel, since he could have had the additional claim for personal injury damages settled at the same time. A mistake by his adviser which fell short of being . .
• Cited – Time Group Limited -v- Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC (Bailii, Bailii, [2002] EWHC 126 (Technology))
  Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of . .
• Cited – Ansari and Another -v- Barclays Bank Plc CA (Bailii, [1997] EWCA Civ 3055)
  The appellant sought leave to appeal an order striking out their claim against the bank. There had been considerable litigation. They had executed charges supporting personal guarantees, in support of loan agreements in favour of the company of . .
• Cited – Tilly -v- Hamleys of London Ltd, Essex County Council CA (Bailii, [1998] EWCA Civ 1767)
  The claimant had brought an action against the shop. She had been stopped on leaving when a library book caused the anti-theft alarm to go off. She and felt humiliated by the public way she was dealt with. Her claim in negligence had been dismissed, . .
• Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
  The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
• Explained – Johnson -v- Gore Wood & Co HL (Gazette 05-Jan-01, House of Lords, Times 20-Dec-00, Gazette 22-Feb-01, Bailii, [2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31)
  A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
  Held: It need not be an abuse of the court for a shareholder . .
• Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
  World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
• Cited – The Sennar (No 2) HL ([1985] 1 WLR 490)
  The Henderson v Henderson principle should only be applied where it is clear (i) that the decision or determination relied on was made by a foreign court of competent jurisdiction and (ii) the decision upon the issue later sought to be raised is a . .
• Cited – Anyanwu and Ebuzoeme -v- South Bank Students’ Union South Bank University CA (Bailii, [1999] EWCA Civ 1032)
  The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
  Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to . .
• Cited – J A Pye (Oxford) Limited -v- South Gloucestershire District Council CA (Bailii, [2000] EWCA Civ 268)
  The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
  Held: The appeal to the court . .
• Cited – Barrow -v- Bankside Members Agency Limited CA (Times 10-Nov-95, [1996] 1 WLR 257)
  Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . .
• Approved – Yat Tung Investment Co Ltd -v- Dao Heng Bank Ltd PC ([1975] AC 581)
  Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
• Cited – Sweetman -v- Nathan and others CA (Bailii, [2003] EWCA Civ 1115, Times 01-Sep-03, [2004] PNLR 89)
  The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
  Held: . .
• Applied – Arnold -v- National Westminster Bank Plc HL ([1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177)
  Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
• Cited – Celador Productions Ltd -v- Melville ChD (Bailii, [2004] EWHC 2362 (Ch))
  The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
• Cited – Blackburn Chemicals Ltd -v- Bim Kemi Ab CA (Bailii, [2004] EWCA Civ 1490, Times 22-Nov-04)
  The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . .
• Cited – John Edwin Berry -v- Post Office Investigation Department CA (Bailii, [1996] EWCA Civ 926)
  The claimant’s property was raided twice, and stamps removed. The first search led to charges which were dropped. He sought the return of all the property removed. In later proceedings it was said that a new claim was being made which was res . .
• Cited – Hormel Foods Corporation -v- Antilles Landscape Investments NV ChD (Times 28-Feb-05, [2005] RPC 28, [2005] EWHC 13 (Ch),)
  The claimant had alread challenged the validity of the defendant’s registered trade mark, but sought to do so now on grounds which could have been advanced in the earlier case. The claimant owned the trade mark ‘SPAM’ for canned meats, and the . .
• Cited – Phipps, Regina -v- CACD (Bailii, [2005] EWCA Crim 33)
  The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . .
• Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
  The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
• Cited – Dallal -v- Bank Mellat ([1986] 1 QB 441)
  Any choice of international law to govern an agreement to arbitrate should be express. . .
• Cited – Coulter -v- Chief Constable of Dorset Police CA (Bailii, [2005] EWCA Civ 1113, [2005] 1 WLR 130)
  An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
• Cited – Ganesmoorthy -v- Ganesmoorthy CA (Bailii, [2002] EWCA Civ 1748, [2003] 3 FCR 167)
  The parties had divorced. The wife alleged a serious assault against her husband, and instructed a claims firm to recover damages from him. Her ancillary relief claim in the divorce was compromised with her having sought to rely upon the assault, . .
• Cited – Heffernan and Another -v- Grangewood Securities Ltd CA (Bailii, [2001] EWCA Civ 1082)
  Redemption action. . .
• Cited – Vervaeke -v- Smith HL ([1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855)
  A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
• Cited – McBride -v- The Body Shop International Plc QBD (Bailii, [2007] EWHC 1658 (QB))
  The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
• Cited – Anyanwu and Another -v- South Bank Student Union and Another HL (Times 27-Mar-01, Gazette 24-May-01, House of Lords, Bailii, [2001] ELR 511, [2001] UKHL 14, [2001] 2 All ER 353, [2001] 1 WLR 638, [2001] ICR 391, [2001] IRLR 305, [2001] Emp LR 420)
  The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
  Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
• Cited – Munir -v- Jang ([1989] ICR 1)
  The doctrine of issue estoppel applies in Industrial Tribunal cases. . .
• Cited – Divine-Bortey -v- London Borough of Brent CA (Bailii, Bailii, Bailii, [1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832)
  The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
• Cited – Dimtsu -v- Westminster City Council EAT ([1991] IRLR 450)
  The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
  Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
• Cited – Campbell -v- Leeds United Association Football Misc (Bailii, [2009] EW Misc 4 (EWCC))
  The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
  Held: The . .
• Cited – Walbrook Trustees (Jersey) Ltd and Others -v- Fattal and Others CA (Bailii, [2009] EWCA Civ 297)
  The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
  Held: The appeal against the stay succeeded. The new case had been flagged up . .
• Cited – Botham -v- The Ministry of Defence QBD (Bailii, [2010] EWHC 646 (QB))
  The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
• Cited – Bank of Scotland -v- Hussain and Another ChD (Bailii, [2010] EWHC 2812 (Ch))
  The second defendant had, under the undue influence of the first defendant sold him her house at an undervalue. She also asserted non est factum. He then charged it to the claimant. The court was asked which innocent party should prevail. She said . .
• Cited – Foster -v- Bon Groundwork Ltd EAT (Bailii, [2011] UKEAT 0382_10_1703)
  EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
  In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
• Mentioned – Ramzan -v- Brookwide Ltd CA (Bailii, [2011] EWCA Civ 985)
  The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
• Cited – Personal Representatives of Tang Man Sit -v- Capacious Investments Ltd PC (Gazette 07-Feb-96, Times 26-Dec-95, [1996] AC 514, Bailii, [1995] UKPC 54, [1996] 1 All ER 193, [1996] 2 WLR 192)
  The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
• Cited – Sarwar -v- The Royal Bank of Scotland Plc (Rev 1) ChD (Bailii, [2011] EWHC 2233 (Ch))
  The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
• Cited – Hi-Lite Electrical Ltd -v- Wolseley UK Ltd QBD (Bailii, [2009] EWHC 3075 (QB), [2010] BLR 225)
  The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . .
• Cited – Bocacina Ltd -v- Boca Cafes Ltd IPEC (Bailii, [2013] EWHC 3090 (IPEC))
  The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
  Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant . .
• Cited – Gladman Commercial Properties -v- Fisher Hargreaves Proctor and Others CA (Bailii, [2013] EWCA Civ 1466)
  The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
• Cited – Joint Stock Company (Aeroflot-Russian Airlines) -v- Berezovsky and Another CA (Bailii, [2014] EWCA Civ 20)
  The appellant had judgments obtained in Russia against the respondent. It now appealed against a refusal of enforcement of those judgments based upon the ground that there was a complete defence to the recognition and enforcement of the judgments . .
• Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
  Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
• Cited – Starlight Shipping Co -v- Allianz Marine & Aviation Versicherungs Ag and Others CA (Bailii, [2012] EWCA Civ 1714, [2013] ILPr 15, [2013] 1 Lloyd’s Rep 217, [2013] 1 All ER (Comm) 1297, [2013] 1 CLC 123)
  The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
• Cited – David T Morrison & Co Ltd (T/A Gael Home Interiors) -v- ICL Plastics Ltd and Others SC (Bailii, [2014] UKSC 48, 2014 GWD 25-5, 2014 SLT 791, Bailii Summary, UKSC 2013/0104, SC, SC Summary)
  The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
  Held: . .

Last Update: 09-Oct-15 Ref: 179857