Tag: Litigation Practice

Elnagy International Ltd and Others v Revenue and Customs: FTTTx 2 Apr 2012

Procedure – application for permission to appeal out of time – alleged negligence of former adviser – jurisdiction – approach to exercise of Tribunal’s discretion – all circumstances taken into account, including whether appellants have an arguable case and the merits of that case, and the reasons for the failure to appeal in time – application allowed in part, on terms

Citations:

[2012] UKFTT 269 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes – Other, Litigation Practice

Updated: 03 November 2022; Ref: scu.462664

Scammell and Others v Dicker: CA 21 Dec 2000

A part 36 offer can be withdrawn at any time before it is accepted or expires. The rules can not force an offer to be left open. Clear words would have been required within the rules to impose such an obligation. The actual words referred to offers ‘expressed’ to be open for 21 days, but the intention was to create an ‘unless’ condition not a positive obligation. Such offers are subject to the general rules of contract, including offer and acceptance and the rules merely provide an advantage to the parties in dealing with each other. A court will strive to give effect to agreements, unless not intended to create legal relations, particularly when the agreement is a compromise of an existing dispute and when it has been acted on.

Judges:

Lord Justice Aldous And Lord Justice Mance

Citations:

Gazette 15-Feb-2001, Times 14-Feb-2001, [2000] EWCA Civ 352, [2001] CP Rep 64, [2001] CPLR 188, [2001] 1 WLR 631

Links:

Bailii

Statutes:

Civil Procedure Rules Part 36

Jurisdiction:

England and Wales

Citing:

See Also – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appeal from – Mamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .

Cited by:

Cited – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
See Also – Scammell and others v Dicker CA 14-Apr-2005
The parties had settled a boundary dispute in 1994 with a consent order, but the terms of the order had been difficult to implement. The respondent appealed an order declaring the consent order void for uncertainty.
Held: The appeal succeeded. . .
Appealed to – Mamidoil-Jetoil Greek Petroleum Company Sa v Okta Crude Oil Refinery Ad ComC 26-Jan-2000
The parties had contracted for the exclusive supply of oil to Yugoslavia. . .
Cited – Halpern and Another v Halpern and others ComC 24-Mar-2006
The deceased parents, being orthodox Jews, had first made standard wills and then made provision accoding to Jewish law. A dispute after the second death was referred to a Beth Din arbitration. After an initial resolution, various distributions were . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 03 November 2022; Ref: scu.147385

Paragon Finance Plc (Formerly National Home Loans Corporation Plc) v Hare and Others: ChD 1 Apr 1999

Where a party wished to allege a conspiracy to defraud, he must set out the facts and circumstances leading to that inference clearly in his pleadings. It was not open to him, having failed to do so, to assert an alternative claim on the same pleadings.

Citations:

Times 01-Apr-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 03 November 2022; Ref: scu.84563

The Mortgage Corporation Ltd v Sandoes and Others: CA 26 Nov 1996

Where the Parties had fallen behind a court timetable, they should agree a new one which would not delay the trial.

Citations:

Times 27-Dec-1996, Gazette 22-Jan-1997, [1996] EWCA Civ 1039

Jurisdiction:

England and Wales

Cited by:

Cited – Smith v Chief Constable of Kent CA 26-Jan-1998
The plaintiffs had sought to claim against the defendants for tort of malicious prosecution The trial had been vacated once on the defendants paying costs, and they made a second application, saying that more days were needed. That application was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 03 November 2022; Ref: scu.83865

Hurley v The Darjan Estate Company Plc: ChD 10 Feb 2012

H appealed against an order made for his bankruptcy on an application by DJ.

Judges:

Geraldine Andrews QC

Citations:

[2012] Ewhc 189 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Barnes v Whitehead ChD 2004
Where a party seeks to run an argument which might have been made earlier, it will inquire why those arguments were not run at the time when they could and should have been run. However, a failure to apply to set aside the statutory demand does not . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Litigation Practice

Updated: 03 November 2022; Ref: scu.461755

Jones v Vans Colina: CA 15 Aug 1996

An ex parte order allowing an action by a vexatious litigant is not appealable by the prospective defendant to the action permitted. Such a defendant to proceedings by a vexatious litigant against whom a civil proceedings order had been made was neither a party to the application for leave under section 42(3) nor was entitled to be made one. Nourse LJ said: ‘The power expressed in Ord 32, r 6 can only apply to an order made in proceedings in which the person seeking to have it set aside is either a party or entitled to be made one. The court could not accede to an application made by a person who had no locus standi to make it.’

Citations:

Gazette 09-Oct-1996, Times 15-Aug-1996, [1996] 1 WLR 580

Statutes:

Supreme Courts Act 1981 42, Rules of the Supreme Court O32 r6

Jurisdiction:

England and Wales

Cited by:

Cited – Ewing v News International Ltd and Others CA 14-Jul-2010
The claimant appealed against an order for costs made on rejection of his application, as a vexatious litigant, for leave to bring defamation proceedings.
Held: The appeal was allowed. A defendant was not a party to an application by a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 October 2022; Ref: scu.82618

Berkeley Administration Inc v Mcclelland and Others: CA 13 Aug 1996

Third Party who had been joined in after an injunction was discharged takes no benefit of cross undertaking.

Citations:

Times 13-Aug-1996

Jurisdiction:

England and Wales

Citing:

See Also – Berkeley Administration Inc v McClelland CA 1990
There is no legally acceptable basis on which the benefit of an undertaking, to which a member of a group of companies is entitled, may be claimed on behalf of the group as a whole. The court discussed who had the benefit of cross undertakings given . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 October 2022; Ref: scu.78351

Regina v the Lord Chancellor, Ex Parte Stockler: CA 7 May 1996

A Judge may give judgment in a case finished he had only after reaching the maximum permitted retirement age.

Citations:

Times 07-May-1996

Statutes:

Judicial Pensions and Retirement Act 1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v The Lord Chancellor Ex Parte Stockler QBD 4-Dec-1995
Judge may sit as an acting judge beyond the maximum retirement age in order to complete his own case lists. . .

Cited by:

Appealed to – Regina v The Lord Chancellor Ex Parte Stockler QBD 4-Dec-1995
Judge may sit as an acting judge beyond the maximum retirement age in order to complete his own case lists. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 October 2022; Ref: scu.88174

Gale v Superdrug Stores Plc: CA 25 Apr 1996

The right to resile from an admission made in pleadings is lost only if there can be found proof of prejudice to the other party. It is a matter for the judge’s discretion.
The court set out the principles on which it should act when it is asked to give leave to amend.

Citations:

Gazette 22-May-1996, Times 02-May-1996, [1996] EWCA Civ 1300, [1996] 1 WLR 1089, [1996] 3 All ER 46, [1996] PIQR P330

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Al-Sabah v Ali and Others ChD 22-Jan-1999
The claimant alleged the fraudulent transfer of properties by use of a forged power of attorney.
Held: The power was fraudulent. Solicitors had acted under the instructions of the agent. The court referred to the Law Society’s practice . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Litigation Practice

Updated: 31 October 2022; Ref: scu.80734

National Westminster Bank Plc v Kitch: CA 14 May 1996

An action to recover an overdraft debt which was secured by a mortgage is not itself a mortgage action. A claim based on a simple contract debt does not cease to be so simply because it is also secured by a charge.

Citations:

Gazette 15-May-1996, Times 14-May-1996, [1996] 1 WLR 1316

Statutes:

Rules of the Supreme Court Order 88 1

Jurisdiction:

England and Wales

Cited by:

Cited – Hopkinson and Others and Birmingham Mid-Shires Building Society v Tupper CA 30-Jan-1997
The plaintiffs appealed from an order striking out their claim for want of prosecution. The defendant’s property had been sold by the mortgagees, and the plaintiffs as assignees of their debt sought to recover the balance outstanding from the . .
Lists of cited by and citing cases may be incomplete.

Banking, Litigation Practice, Contract

Updated: 31 October 2022; Ref: scu.84218

Brennan v Brighton Borough Council: CA 24 Jul 1996

Challenges to a leave to appeal having been given should only to be commenced if properly justified. They are rarely likely to succeed.

Citations:

Times 24-Jul-1996

Jurisdiction:

England and Wales

Citing:

Cited – Pontin v Wood CA 1962
The writ had been issued just before the expiration of the relevant limitation period in a defective form in that it was endorsed merely with the words ‘the plaintiffs’ claim is for damages for personal injuries’. The judge in chambers held that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 October 2022; Ref: scu.78568

Forrester v British Railways Board: CA 8 Apr 1996

Where a request for the discovery of documents was too wide, it should be refused by the court, but the court also had the discretion to order an alternative arrangement. In this case the discovery applied for was far too wide, and the court ordered an expert’s report which could then be used to ensure appropriate discovery was provided.

Judges:

Lord Justice Rose, Lord Justice Aldous and Sir Iain Glidewell

Citations:

Times 08-Apr-1996

Jurisdiction:

England and Wales

Litigation Practice

Updated: 31 October 2022; Ref: scu.80640

Circuit Systems Ltd (In Liquidation) and Another v Zuken Redac (Uk) Ltd: CA 5 Apr 1996

The assignment of a debt by a company in liquidation to a significant shareholder, in order to allow him to make an application for legal aid, and to avoid having to give security for costs and to allow the action to proceed was not unlawful, but the Legal Aid Board should be careful in supporting such contrived litigation.

Judges:

Lord Justice Staughton, Lord Justice Simon Brown and Lord Justice Thorpe

Citations:

Gazette 01-May-1996, Times 05-Apr-1996

Statutes:

Law of Property Act 1925 136(1)

Jurisdiction:

England and Wales

Citing:

Applied – Joyce v Sengupta and Another CA 31-Jul-1992
The defendant published an article accusing the plaintiff of theft. Not having funds to launch a claim in libel, the plaintiff obtained legal aid to claim in malicious falsehood. She now appealed against a strike out of that claim.
Held: A . .
Applied – Stein v Blake HL 18-May-1995
Where A and B each have claims against each other and A is insolvent, the common amount is set off, and the net difference remains as a debt due.
Hoffmann L said: ‘It is a matter of common occurrence for an individual to become insolvent while . .

Cited by:

Appeal from – Norglen Ltd (In Liquidation) v Reeds Rains Prudential Ltd and Others; Circuit Systems Ltd (In Liquidation) and Another v Zuken-Redac HL 1-Dec-1997
An assignment of a cause of action by a company in liquidation was valid, even though the dominant purpose was to avoid having to give security for costs, and to get legal aid. In dismissing the argument that the transactions were a device to defeat . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Legal Aid

Updated: 31 October 2022; Ref: scu.79137

Beachley Property Ltd v Edgar: CA 18 Jul 1996

Witness statements which had not been served in accordance with the rules were not be admitted. Courts are to adopt a far stricter approach to applications for adjournment based on lack of readiness for trial than hitherto: ‘I would like to make it absolutely clear that I do not accept that submission. The very reason why the order is drafted in the terms that it is, is to ensure that unless there are circumstances which justify the Court exercising discretion in favour of the party in default, that discretion will not be exercised and the party will be deprived of the evidence. It is no use the party coming forward and saying, ‘The evidence will help our case’. If this is the position, the rule may as well not exist. You have to consider the position not only from the plaintiff’s point of view, but also from the point of view of the defendant, and with a view to doing justice between other litigants as well. The history of this case illustrates the inconvenience and the disruption to the administration of justice generally that this approach to the rules creates.’

Judges:

Lord Woolfe MR

Citations:

Times 18-Jul-1996, [1997] PNLR 197

Statutes:

County Court Rules 1981 Ord 20 R 12A

Jurisdiction:

England and Wales

Cited by:

Cited – Smith v Chief Constable of Kent CA 26-Jan-1998
The plaintiffs had sought to claim against the defendants for tort of malicious prosecution The trial had been vacated once on the defendants paying costs, and they made a second application, saying that more days were needed. That application was . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 October 2022; Ref: scu.78305

FIM Santander Top 25 Euro Fi (Articles 63 Tfeu And 65 TFEU) C-338/11: ECJ 10 May 2012

ECJ 1 The references for a preliminary ruling concern the interpretation of Articles 63 and 65 TFEU concerning the difference in tax treatment between non-resident and resident collective investment undertakings for collective investment in securities (UCITS).
2 Since the abovementioned cases are related by reason of their subject-matter, it is appropriate, in accordance with Article 43 of the Rules of Procedure, to join them for the purposes of the written and oral procedure and the judgment.
For these reasons, the President of the Court hereby orders:
Cases C-338/11 to C-347/11 are joined for the purposes of the written and oral procedure and the judgment.

Citations:

[2011] EUECJ C-338/11

Links:

Bailii

Jurisdiction:

European

Cited by:

Order – Fim Santander Top 25 Euro Fi (Articles 63 Tfeu And 65 TFEU) ECJ 10-May-2012
ECJ Articles 63 TFEU and 65 TFEU – Undertakings for collective investments in transferable securities (UCITS) – Different treatment of dividends paid to non-resident UCITS, subject to withholding tax, and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 October 2022; Ref: scu.459574

Shocked and Another v Goldschmidt and Another: CA 4 Nov 1994

A party’s failure to appear at the trial implied that he had made certain choices which he was not to be allowed to go back on when seeking to set aside any judgment made.

Judges:

Leggatt LJ

Citations:

Ind Summary 05-Dec-1994, Times 04-Nov-1994, [1998] 1 ELR 273

Jurisdiction:

England and Wales

Cited by:

Cited – Gorman v British Airways Plc CA 4-Feb-1998
The claimant said that whilst he was a passenger on a flight, he ingested broken glass in a drink. The trial of his case took place in his absence and he successfully set aside judgment against him in default when he failed to appear. The defendant . .
Cited – Kenny and Others v Abubaker and Others CA 23-Oct-2012
The defendant landlord sought to appeal against an order that he pay to the respondent tenants a penalty under the 2004 Act of three times the tenancy deposit. The court was now asked whether there was has any right to have set aside a judgment . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.89241

Reville v Wright: CA 18 Jan 1996

Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold tests: see Rastin; Hoskins; (b) in relation to both these tests the onus of proof lies on the plaintiff; (c) the plaintiff must satisfy the court that the action has been conducted with at least reasonable diligence; (d) in this context diligence must be tested, not by the approach adopted by the court on applications to dismiss for want of prosecution, but by the new timetables laid down by Ord.17, r.11; (e) the plaintiff must secondly satisfy the court that the failure to apply for a hearing date within the time limit laid down by the rules was ‘excusable’.’

Judges:

Otton LJ

Citations:

Times 18-Jan-1996, Gazette 21-Feb-1996, [1996] 1 WLR 592

Statutes:

County Court Rules 1981 17(11)

Jurisdiction:

England and Wales

Citing:

Cited – Hoskins v Wiggins Teape (UK) Limited CA 1994
The plaintiff had delayed the action. It had been transferred from the High Court in July 1991, and was then automatically struck out. The plaintiff sought re-instatement.
Held: The court attempted to put into proper context the problems that . .
Cited – Rastin v British Steel Plc, Todd v Evans, Adams v Geest Plc CA 18-Feb-1994
An action which had been automatically struck out, may be re-instated if there had been good cause for the delay. ‘The proper approach to the exercise of any judicial discretion must be governed by the legal context in which the discretion arises.’ . .
Cited – Gardner v Southwark London Borough Counci (No 1); King v East Cambridgeshire District Council etc CA 18-Jan-1996
It was not an abuse of process, to restart a claim within the limitation period after an automatic striking out of an earlier action. Millett LJ referred to the ‘same dilatory progress’ all the parties to the action continued to make after the . .

Cited by:

Cited – Dowse v Kappell CA 12-Dec-1996
The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.88756

Renworth Ltd v Stephansen and Another: CA 10 Jan 1996

There was no privilege against self incrimination in a civil action for a fanciful fear of criminal charges.

Citations:

Times 16-Jan-1996, Independent 10-Jan-1996, [1996] 3 All ER 244

Statutes:

Theft Act 1968 21(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Phillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.88737

North West Thames Regional Health Authority v Shephard Robson (A Firm) and Others: CA 23 Jan 1996

A main employer may apply to the court for the construction of the meaning of sub-contracts with main contractor. A declaration was available to a Plaintiff in respect of sub-contractors only if part of scheme.

Citations:

Times 23-Jan-1996, Ind Summary 12-Feb-1996

Jurisdiction:

England and Wales

Litigation Practice, Construction

Updated: 27 October 2022; Ref: scu.84345

Lightfoot v National Westminster Bank Plc; Roberts v British Telecom Plc Etc: CA 18 Jan 1996

To ‘deliver’ is to lodge a defence at court as opposed to when it is sent for questions as to start of court timetables.

Citations:

Times 18-Jan-1996, Gazette 21-Feb-1996

Statutes:

County Court Rules 1981 17(11)

Jurisdiction:

England and Wales

Litigation Practice

Updated: 27 October 2022; Ref: scu.83065

Mackenzie v Business Magazines (UK) Ltd and Others: CA 18 Jan 1996

Consent to amendment of defence wrongfully refused without finding of mala fides.

Citations:

Times 05-Mar-1996

Jurisdiction:

England and Wales

Cited by:

Cited – Godfrey v Demon Internet Limited (2) QBD 23-Apr-1999
Evidence of Reputation Admissible but Limited
The plaintiff had brought an action for damages for defamation. The defendant wished to amend its defence to include allegations that the plaintiff had courted litigation by his action.
Held: A judge assessing damages should be able see the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.83277

Joyce v Liverpool City Council; Wynne v Same: CA 2 May 1995

The Small Claims procedure includes a full power for a District Judge to grant injunctions and otherwise, including in this case making an order for specific performance.

Citations:

Ind Summary 26-Jun-1995, Times 02-May-1995

Statutes:

County Court Rules 1981 19

Jurisdiction:

England and Wales

Litigation Practice

Updated: 27 October 2022; Ref: scu.82637

Desert Sun Loan Corporation v Hill: CA 21 Feb 1996

A defence of Issue Estoppel was not available where the issue which was claimed to have been decided had been made under an unclear foreign procedure. It was also essential that the issue in respect of which an estoppel was now asserted had been a finding necessary to the judgment to be relied upon: ‘The principle is that an issue of fact or law which necessarily was concluded in favour of one party in the foreign proceedings cannot be reopened in foreign proceedings between the same parties here.’

Judges:

Evans LJ

Citations:

Gazette 20-Mar-1996, Times 21-Feb-1996, [1996] 2 All ER 847

Jurisdiction:

England and Wales

Cited by:

Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Litigation Practice

Updated: 27 October 2022; Ref: scu.79933

Practice Direction (Court of Appeal: Procedure): CA 4 Oct 1995

Full practice direction for matters before the Court of Appeal.

Citations:

Gazette 04-Oct-1995, [1995] 1 WLR 1191

Jurisdiction:

England and Wales

Cited by:

Cited – ATA and Another v American Express Bank Ltd CA 17-Jun-1998
The Court of Appeal again emphasised the supreme importance of parties working together to identify the real issues between themselves and producing core bundles accordingly. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.79565

Cleveland County Council v L and Others: CA 14 Mar 1996

There should be no imprisonment of a contemnor without a formal and proper penal notice having first been served.

Judges:

Lord Justice Russell, Lord Justice Hirst and Lord Justice Peter Gibson

Citations:

Times 08-Apr-1996

Statutes:

Rules of the Supreme Court Order 45, rule 7

Jurisdiction:

England and Wales

Contempt of Court, Litigation Practice

Updated: 27 October 2022; Ref: scu.79218

Balkanbank v Taher and Others (No 2): CA 18 Nov 1994

The plaintiffs had sued in Ireland and obtained a Mareva injunction. That injunction was then first extended to a worldwide injunction, before being set aside. The court could itself to enquire as to damages without deciding whether to enforce the undertaking in damages given by the plaintiff.

Judges:

Neill LJ, Evans LJ, Saville LJ

Citations:

Times 01-Dec-1994, [1995] 1 WLR 1067

Statutes:

Rules of the Supreme Court O15 r6, Supreme Court Act 1981 49(2)

Jurisdiction:

England and Wales

Citing:

See Also – Balkanbank v Taher and Others 19-Feb-1994
Disclosure of legal advice. . .

Cited by:

See also – Balkanbank v Naser Taher and Others QBD 13-Feb-1995
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered . .
See Also – Balkanbank v Taher and Others (No 3) CA 1-Dec-1994
The court will allow a counterclaim on an undertaking after the action had ceased in other Jurisdiction, and the court had power to award damages arising from a Mareva injunction obtained in Ireland. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.78114

Balkanbank v Taher and Others (No 3): CA 1 Dec 1994

The court will allow a counterclaim on an undertaking after the action had ceased in other Jurisdiction, and the court had power to award damages arising from a Mareva injunction obtained in Ireland.

Citations:

Times 01-Dec-1994, Gazette 05-Jan-1995

Jurisdiction:

England and Wales

Citing:

See Also – Balkanbank v Taher and Others 19-Feb-1994
Disclosure of legal advice. . .
See Also – Balkanbank v Taher and Others (No 2) CA 18-Nov-1994
The plaintiffs had sued in Ireland and obtained a Mareva injunction. That injunction was then first extended to a worldwide injunction, before being set aside. The court could itself to enquire as to damages without deciding whether to enforce the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Jurisdiction

Updated: 27 October 2022; Ref: scu.78115

Ashworth v McKay Foods Ltd: CA 16 Nov 1995

Where automatic directions had not been followed, a later hearing application was not an not abuse of process.

Citations:

Times 16-Nov-1995, [1996] 1 WLR 542

Statutes:

County Court Rules 1981 Order 7

Jurisdiction:

England and Wales

Cited by:

Cited – Hawkins v Keppe Shaw, Solicitors (a Firm) CA 20-Jul-2001
The solicitors represented the applicant in a claim for personal injuries. The action was struck out, and he sued the solicitors for negligence. Composite directions had been given, and the question was whether the making of those directions ousted . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 27 October 2022; Ref: scu.77906

Roche v Church: CA 15 Feb 1993

In an action the Plaintiff became liable to be struck out for delay. The defendant’s solicitors indicated informally a readiness to extend the time for the plaintiff, and this created an estoppel against the defendant which he could not side step. He could be compensated for the delay in costs, and the defendant could not buy out the representation made and estoppel created by offering to pay the costs suffered by the representation.

Citations:

Ind Summary 15-Feb-1993

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.88826

Taittinger and Others v Allbev Ltd and Another: CA 30 Jun 1993

An injunction was granted to restrain the labelling of a sparkling fruit (Elderflower Champagne) non-alcoholic drink made in Surrey to include the word ‘champagne’. The trial judge had held that all the necessary ingredients for a successful passing off action had been made out save for proof of likelihood of substantial damage to the plaintiff.
Held: the plaintiff argued that if the defendant continued to call its product ‘Elderflower Champagne’, ‘. . . the effect would be to demolish the distinctiveness the word champagne, and that would inevitably damage the goodwill of the champagne houses.’ Peter Gibson LJ: By parity of reasoning it seems to me no less obvious that erosion of the distinctiveness of the name champagne in this country is a form of damage to the goodwill of the business of the champagne houses.’ and as to CIVC, he said that Sir Robin Cooke ‘thought the [Champagne] case exemplified the principle that a tendency to impair distinctiveness might lead to an inference of damage to goodwill . . .’
‘Like the judge, I do not think the defendants’ product would reduce the first plaintiffs’ sales in any significant and direct way. But that is not, as it seems to me, the end of the matter. The first plaintiffs’ reputation and goodwill in the description Champagne derive not only from the quality of their wine and its glamorous associations, but also from the very singularity and exclusiveness of the description, the absence of any qualifying epithets and imitative descriptions. Any product which is not Champagne but is allowed to describe itself as such must inevitably, in my view, erode the singularity and exclusiveness of the description Champagne and so cause the first plaintiffs damage of an insidious but serious kind. The amount of damage which the defendants’ product would cause would of course depend on the size of the defendants’ operation. That is not negligible now, and it could become much bigger. But I cannot see, despite the defendants’ argument to the contrary, any rational basis upon which, if the defendants’ product were allowed to be marketed under its present description, any other fruit cordial diluted with carbonated water could not be similarly marketed so as to incorporate the description champagne. The damage to the first plaintiffs would then be incalculable but severe.’

Judges:

Peter Gibson LJ

Citations:

Independent 30-Jun-1993, Times 28-Jun-1993, [1993] FSR 641

Jurisdiction:

England and Wales

Cited by:

Cited – Sean Sweeney, Graham Edward Camps v Macmillan Publishers Limited, Danis Rose ChD 22-Nov-2001
The claimants were trustees of the estate of James Joyce, and complained at the publication of unpublished parts of the work Ulysses in a readers edition by the defendants. Published works are protected for fifty years after the author’s death, but . .
Cited – Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited PatC 29-Oct-1997
The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 26 October 2022; Ref: scu.89691

Roebuck v Mungovin: CA 26 Apr 1993

The right to dismiss for want of prosecution once lost, will only rarely be regained by a defendant.

Citations:

Ind Summary 26-Apr-1993

Jurisdiction:

England and Wales

Citing:

Appealed to – Roebuck v Mungovin HL 4-Feb-1994
A defendant may ask for the Plaintiff’s claim to be struck out despite having cause the Plaintiff to incur costs. That was not a bar to the application. . .

Cited by:

Appeal from – Roebuck v Mungovin HL 4-Feb-1994
A defendant may ask for the Plaintiff’s claim to be struck out despite having cause the Plaintiff to incur costs. That was not a bar to the application. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.88842

Rolph v Zolan: CA 7 May 1993

Postal service at the last known address within the jurisdiction is valid even though the defendant was known to be abroad. The summons was then posted on to him abroad and was properly served under County Court Rules 1981.

Citations:

Gazette 16-Jun-1993, Independent 19-May-1993, Times 07-May-1993, [1993] 1 WLR 1305

Jurisdiction:

England and Wales

Cited by:

Cited – Jephson Homes Housing Association v Moisejevs and Another CA 1-Nov-2000
A possession warrant, properly issued and executed in ignorance of a payment into court by the tenant was not an abuse of process. The tenant had paid funds into court in the mistaken belief that this would be effective to set aside the warrant. She . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.88853

Stringman v McCardle: CA 19 Nov 1993

The Judge is not to be concerned with the intended application or use of interim damages requested to be paid to a Plaintiff.

Citations:

Ind Summary 06-Dec-1993, Times 19-Nov-1993, [1994] 1 WLR 1653

Statutes:

Rules of the Supreme Court rule 11

Jurisdiction:

England and Wales

Cited by:

Cited – Spillman v Bradfield Riding Centre QBD 6-Feb-2007
The claimant child suffered very severe brain injury when kicked in the head by a horse at the defendant’s riding stables. The claimant appealed an interim award of damages. It had not been possible to determine her future earnings. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Damages

Updated: 26 October 2022; Ref: scu.89594

Restick v Crickmore: CA 3 Dec 1993

The High Court can transfer proceedings wrongly started in High Court to the County Court as an alternative to its jurisdiction to strike out the claim. Stuart-Smith LJ said: ‘. . provided proceedings are started within the time permitted by the statute of limitations, are not frivolous, vexatious or an abuse of the process of the court and disclose a cause of action, they will not as a rule be struck out because of some mistake in procedure on the part of the plaintiff or his advisers. Save where there has been a contumelious disobedience of the court’s order, the draconian sanction of striking out an otherwise properly constituted action, simply to punish the party who has failed to comply with the rules of court, is not part of the court’s function . .’

Judges:

Stuart-Smith LJ

Citations:

Times 03-Dec-1993, Ind Summary 20-Dec-1993, Gazette 26-Jan-1994, [1994] 1 WLR 420

Statutes:

Courts and Legal Services Act 1990 2(1)

Jurisdiction:

England and Wales

Cited by:

Cited – Birmingham City Council v Abdulla and Others CA 29-Nov-2011
The Council appealed against an order dismissing its application for the claimants’ claims under equal pay legislation to be struck out for want of jurisdiction. The claims had been brought in the High Court rather than te hEmployment Tribunal, thus . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Limitation

Updated: 26 October 2022; Ref: scu.88744

Riverside Mental Health NHS Trust v Fox: CA 28 Oct 1993

An interim declaratory order is unknown to English Law and and ‘consequently the court has no jurisdiction to grant an interim declaratory order’.

Citations:

Ind Summary 15-Nov-1993, Times 28-Oct-1993, [1994] 1 FLR 614

Jurisdiction:

England and Wales

Cited by:

Cited – Amalgamated Metal Trading Ltd v City of London Police Financial Investigation Unit and others ComC 3-Apr-2003
The company provided trading services in financial futures. They became concerned as to the integrity of their client, and its relationship with shareholders and other companies where parties came to be arrested for fraud in the US. They sought a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.88792

Regina v Chief Constable of the West Midlands Police, Ex Parte Wiley Etc: CA 30 Sep 1993

Police complaints documents’ use may be restricted in civil proceedings.

Citations:

Times 30-Sep-1993, Independent 08-Oct-1993, Gazette 08-Dec-1993

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Chief Constable of West Midlands Ex Parte Wiley; Regina v Chief Constable Notts Ex Parte Sunderland QBD 24-Feb-1993
Police were not to use a complaint statements in civil litigation. . .

Cited by:

Appeal from – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Police

Updated: 26 October 2022; Ref: scu.86368

Pizzey v Ford Motor Co Ltd: CA 10 Mar 1993

Reports which had been mistakenly disclosed by a solicitor were admitted in evidence.

Citations:

Gazette 05-May-1993, Independent 10-Mar-1993, Times 08-Mar-1993

Jurisdiction:

England and Wales

Cited by:

Cited – Mohamad Al Fayed v The Commissioner of Police of the Metropolis CA 29-May-2002
During an action, advice from counsel had been inadvertently disclosed to the claimants. The defendant sought to restrain use of the papers in the trial. It was accepted that the papers attracted legal professional privilege, but the police also . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.84748

Pounds v Pounds: CA 24 Feb 1994

Consent orders giving effect to financial settlements are to be drafted and dated with care. The one in this case mistakenly pre-dated the decree nisi. It was amended under the slip rule.

Judges:

Neill LJ, Hoffmann LJ, Waite LJ

Citations:

Times 17-Mar-1994, Independent 03-Mar-1994, [1994] EWCA Civ 10, [1994] 1 WLR 1535, [1994] 2 FCR 1055, [1994] 1 FLR 775

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Radmacher v Granatino CA 2-Jul-2009
Husband and wife, neither English, had married in England. Beforehand they had signed a prenuptial agreement in Germany agreeing that neither should claim against the other on divorce. The wife appealed against an order to pay a lump sum to the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 26 October 2022; Ref: scu.84818

Rastin v British Steel Plc, Todd v Evans, Adams v Geest Plc: CA 18 Feb 1994

An action which had been automatically struck out, may be re-instated if there had been good cause for the delay. ‘The proper approach to the exercise of any judicial discretion must be governed by the legal context in which the discretion arises.’ and ‘A retrospective application to extend time should not succeed unless the plaintiff (in which expression we include his advisers) is able to show that he has, save in his failure to comply with rule 11(3)(d) and (4), prosecuted his case with at least reasonable diligence. That does not mean that there is no room to criticise any aspect of his conduct of the case but that overall he is innocent of any significant failure to conduct the case with expedition, having regard to the particular features of the case. The plaintiff’s failure to comply with the rule can never be justifiable, but he must in all the circumstances persuade the court that it is excusable. If he is able to show that an extension of time for the requisite period, if sought prospectively, would in all probability have been granted, that will help him and the more technical his failure the more readily it will be excused. If, but only if, the plaintiff can discharge these burdens should the court consider the interests of justice, the positions of the parties and the balance of hardship in a more general way.’

Judges:

Sir Thomas Bingham MR

Citations:

Times 18-Feb-1994, Independent 11-Mar-1994, [1994] 1 WLR 732

Statutes:

County Court Rules 1981 Order 17 11-9

Jurisdiction:

England and Wales

Cited by:

Cited – Dowse v Kappell CA 12-Dec-1996
The plaintiff had had his claim re-instated after being struck out. The defendant appealed.
Held: There was material on which the learned Circuit Judge was entitled to reach the conclusion which she did. Although this was a borderline case, it . .
Cited – Reville v Wright CA 18-Jan-1996
Re-instatement of an action after an automatic strike out could be proper if due diligence and a reasonable excuse could be shown. ‘The principles which emerge from those three decisions can be stated in summary form: (a) there are two threshold . .
Cited – Khela v Pone and Norwest Holst Limited CA 21-May-1997
The claimant sught to re-instate his personal injury action. It had been struck out under the automatic directions.
Held: The claimant had not satsified the requirement to provide a sufficient reason to make his delay excusable. . .
Cited – Arora v A R Erdozain and others (Trading As Solomon Hare and Co) CA 22-May-1997
Appeal against automatic strike out. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.85672

In Re A Barrister (Wasted Costs Order): CA 15 Mar 1994

Barrister to pay wasted costs where he had no system for discovering the listing of cases. It was his personal responsibility for keeping abreast of such listings.

Citations:

Gazette 08-Jun-1994, Gazette 30-Mar-1994, Times 15-Mar-1994, Independent 15-Mar-1994

Jurisdiction:

England and Wales

Legal Professions, Litigation Practice

Updated: 26 October 2022; Ref: scu.85690

Moran v University College Salford (Practice Guidance – Leave to Appeal): CA 27 Oct 1993

An offer of a student place was capable of acceptance, but a mandatory injunction was refused. The court gave guidance on how to decide if leave was necessary to make an appeal to the Court of Appeal.

Citations:

Independent 26-Nov-1993, Times 27-Oct-1993, Ind Summary 29-Nov-1993

Statutes:

Rules of the Supreme Court 59, Courts and Legal Services Act 1990 7(1)

Jurisdiction:

England and Wales

Contract, Litigation Practice, Education

Updated: 26 October 2022; Ref: scu.83823

Mercantile Group (Europe) Ag v Aiyela and Others: CA 4 Aug 1993

Interlocutory injunctions including Mareva procedures and orders are available to support the enforcement of a judgment. The purpose of such a jurisdiction is so that the court can ‘ensure the effective enforcement of its orders’. A court may still make an order for disclosure and an injunction after judgment has been entered.

Judges:

Sir Thomas Bingham MR

Citations:

Independent 12-Aug-1993, Times 04-Aug-1993, [1994] QB 366

Jurisdiction:

England and Wales

Citing:

Appeal from – The Mercantile Group (Europe) AG v Victor Aiyela and Others ComC 18-Apr-1994
cw Contempt – Contempt of court by individual – arising from breach of order for disclosure of documents and undertakings . .

Cited by:

Cited – Siskina (owners of Cargo lately on Board) v Distos Compania Naviera SA HL 1979
An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed . .
Cited – HM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .
Cited – Franses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.83642

Mercury Communications Ltd v Director General of Telecommunications and Another: CA 3 Aug 1994

Parties having contracted to resolve differences by an agreed procedure, could not go back on that agreement. The court will not replace an agreement for a resolution method chosen by parties with own advice and freely.

Citations:

Independent 19-Aug-1994, Times 03-Aug-1994, Gazette 07-Oct-1994

Jurisdiction:

England and Wales

Citing:

Appealed to – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .

Cited by:

Appeal from – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Arbitration

Updated: 26 October 2022; Ref: scu.83653

McDonald and Others v Horn and Others: CA 8 Aug 1994

A court may make a pre-emptive award of costs to pension fund members who wished to sue the trustees. Hoffmann LJ said: ‘if one looks at the economic relationships involved, there does seem to me to be a compelling analogy between a minority shareholder’s action for damages on behalf of the company and an action by a member of a pension fund to compel trustees or others to account to a fund. In both cases a person with a limited interest in a fund, whether a company’s assets or a pension fund, is alleging injury to the fund as a whole and seeking restitution on behalf of the fund. And what distinguishes the shareholder and pension fund member, on the one hand, from the ordinary trust beneficiary, on the other, is that the former have both given consideration for their interests. They are not just recipients of the settlor’s bounty which he, for better or worse, has entrusted to the control of trustees of his choice. The relationship between the parties is a commercial one and the pension fund members are entitled to be satisfied that the fund is being properly administered. Even in a non-contributory scheme, the employer’s payments are not bounty. They are part of the consideration for the services of the employee. Pension funds are such a special form of trust and the analogy between them and companies with shareholders is so much stronger than in the case of ordinary trusts that, in my judgment, that it would do no violence to established authority if we were to apply to them the Wallersteiner v. Moir (No. 2) procedure.’
As to the court’s powers to award costs: ‘The court’s jurisdiction to deal with litigation costs is based upon section 51 of the Supreme Court Act 1981, which, is derived from section 5 of the Supreme Court of Judicature Act 1890.
The background to the Act of 1890 is briefly as follows. In the old courts of common law, costs followed the event. The judge had no discretion. In the Court of Chancery, costs were in the discretion of the court but that discretion was exercised according to certain principles which I shall discuss later. The first Rules of the new Supreme Court of Judicature (enacted in 1875) adopted the Chancery practice.
The discretion conferred by section 51 is by no means untrammelled. It must be exercised in accordance with the rules of court and established principles.’ and ‘In the case of a fund held on trust, therefore, [‘therefore’ is explained by his immediately previous citation of sub rule 2 of order 62, rule 6 of the then Rules of the Supreme Court] the trustee is entitled to his costs out of the fund on an indemnity basis, provided only that he has not acted unreasonably or in substance for his own benefit rather than that of the fund. Trustees are also able to protect themselves against the possibility that they may be held to have acted unreasonably or in their own interest by applying at an early stage for directions as to whether to bring or defend the proceedings. This procedure, sanctioned by the decision of the Court of Appeal in Re Beddoe, Downes v Cottam requires the trustee to make full disclosure of the strengths and weaknesses of his case. Provided that such disclosure has been made, the trustee can have full assurance that he will not personally have to bear his own costs or pay those of anyone else.’

Judges:

Hoffmann LJ

Citations:

Ind Summary 08-Aug-1994, Times 10-Aug-1994, [1995] 1 All ER 961, (1994) 144 NLJ 1515, [1995] ICR 685, [1995] 1 CR 685

Statutes:

Supreme Court Act 1981 51, Supreme Court of Judicature Act 1890 5

Jurisdiction:

England and Wales

Citing:

Appeal from – McDonald and Others v Horn and Others ChD 12-Oct-1993
A pre-emptive costs order is possible where Plaintiffs are impecunious but the case is very strong. . .
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 – In re Mills’ Estate CA 1886
The Practice Rules conferred a discretion as to costs only in cases in which before the Judicature Acts the courts would have had jurisdiction to make awards of costs. The Act of 1890 was intended to confer such jurisdiction in any case whatever. . .
Cited – In Re Beddoe, Downes v Cottam CA 1893
A trustee had unsuccessfully defended an action against the trust in detinue for the return of deeds. He now sought protection against a costs order. Costs having been awarded against a trustee in proceeding A, the trustee sought to be indemnified . .

Cited by:

Cited – AMP (UK) Plc and Another v Barker and Others ChD 8-Dec-2000
The claimants were interested under a pension scheme. Alterations had been made, which the said had been in error, and they sought rectification to remove a link between early leaver benefits and incapacity benefits. The defendant trustees agreed . .
Cited – Alsop Wilkinson v Neary and Others ChD 4-Nov-1994
The second defendant, a solicitor, had fraudulently taken money from trusts, and paid money into trusts for his own family. It was claimed that the payments were intended to defeat the recovery of the funds. The trustees sought protection on costs . .
Cited – Corner House Research, Regina (on the Application of) v Secretary of State for Trade and Industry CA 1-Mar-2005
The applicant sought to bring an action to challenge new rules on approval of export credit guarantees. The company was non-profit and founded to support investigation of bribery. It had applied for a protected costs order to support the . .
Cited – 3 Individual Present Professional Trustees of 2 Trusts v an Infant Prospective Beneficiary of One Trust and others ChD 25-Jul-2007
The parties challenged under the 198 Act the right of trustees to seek a Beddoe order protecting themselves against an award of costs. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 26 October 2022; Ref: scu.83521

Marsh v Marsh: CA 1 Mar 1993

Appeals under the Family Proceedings Rules had to be read in conjunction with the CCR Order 37 r 6, and the judge hearing the appeal had discretion to substitute his own view for that of the court below. This is different from what applies on appeal to the Court of Appeal. In particular the judge may choose to hear fresh evidence: ‘No party shall be entitled as of right to adduce further evidence or oral evidence but the judge may in his discretion admit such further or oral evidence as he thinks relevant and just upon such terms as he thinks fit.’

Judges:

Sir Stephen Brown P

Citations:

Ind Summary 01-Mar-1993, Times 16-Feb-1993, [1993] 1 WLR 744

Statutes:

Family Proceedings Rules 1991 8.1(2) 8.1(3) 4.23, County Court Rules 1981 Order 37 Rule 6, Matrimonial Causes Act 1973

Jurisdiction:

England and Wales

Cited by:

Reconsidered – Cordle v Cordle CA 15-Nov-2001
The former practice in ancillary relief applications where a circuit judge hearing an appeal from a district judge could admit new evidence and hear the case de novo should not survive the new rules, and should cease. An appeal to the circuit judge . .
Cited – Piglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 26 October 2022; Ref: scu.83425

Kuwait Airways Corporation v Iraqi Airways Corporation (No 2): CA 20 Jan 1994

A successful appeal on a costs award should be backdated to the original order.

Citations:

Gazette 23-Feb-1994, Times 20-Jan-1994, [1994] 1 WLR 985

Jurisdiction:

England and Wales

Cited by:

Disapproved – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 26 October 2022; Ref: scu.82868

Khorasandjian v Bush: CA 16 Feb 1993

The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many complaints against the defendant, including assaults, threats of violence, and pestering the plaintiff at her parents’ home where she lived. As a result of the defendant’s threats and abusive behaviour he spent some time in prison.
Held: Harassing telephone calls can be restrained on the basis that they can constitute a nuisance to the occupier. A court may restrain harassment not just to protect a strict legal right.
Dillon LJ (with whom Rose LJ agreed) described the authorities as establishing that ‘false words or verbal threats calculated to cause, uttered with the knowledge that they are likely to cause, and actually causing physical injury to the person to whom they are uttered are actionable’ and interpreted injury in the sense of ‘recognisable psychiatric illness with or without psychosomatic symptoms’, as distinct from ‘mere emotional distress’.
. . And ‘ . . false words or verbal threats calculated to cause, and uttered with the knowledge that they are likely to cause and actually causing physical injury to the person to whom they are uttered are actionable: see the judgment of Wright J in Wilkinson v Downton [1897] 2 QB 57 at 59, [1895-9] All ER Rep 267 at 269 cited by Bankes LJ in Janvier v Sweeney [1919] 2 KB 316 at 321-322, [1918-19] All ER Rep 1056 at 1059. There was a wilful false statement, or unfounded threat, which was in law malicious, and which was likely to cause and did in fact cause physical injury, viz illness of the nature of nervous shock.”

Judges:

Dillon, Rose LJJ, Peter Gibson J

Citations:

Gazette 21-Apr-1993, Independent 17-Mar-1993, [1993] Fam Law 679, [1993] 3 WLR 476, [1993] QB 727, [1993] 3 All ER 669, [1993] EWCA Civ 18

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Followed – Motherwell v Motherwell 1976
(Appellate Division of the Alberta Supreme Court) The court recognised that not only the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his . .
Cited – Patel v Patel CA 1988
An exclusion zone order had been removed from an injunction granted to a father-in-law against his son-in-law. May LJ observed that an injunction ‘can only be an appropriate remedy where an actual tortious act has been or is likely to be committed’. . .

Cited by:

Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
Overruled – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Cited – Ward v Scotrail Railways Limited SCS 27-Nov-1998
The claimant sought damages from the defender, saying that a co-worker had sexually harrassed her. The behaviour continued after she made a complaint to her employer.
Held: It was conceded that the employee’s conduct was not such as to attract . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .
Cited – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 26 October 2022; Ref: scu.82771

In Re A Debtor (No 340 of 1992): CA 19 Jul 1993

Sheriff’s failure to gain access meant that he had failed to execute the writ of fieri facias. Failure to serve writ of fieri facias is not merely a formal defect or irregularity.

Citations:

Ind Summary 13-Sep-1993, Times 19-Jul-1993

Statutes:

Insolvency Act 1986 268(1)(b)

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.81660

Harwood v Courtaulds Ltd: CA 24 Mar 1993

A defendant who acquiesces in delay, may forfeit any right to make a complaint of want of prosecution. Additional delay after the acquiescence had ceased could not revive the right unless the defendant could show some additional prejudice arising from that further delay.

Citations:

Gazette 24-Mar-1993

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.81273

Duchess Theatre Co Ltd and Others v Lord and Others: CA 9 Dec 1993

The Henderson principle that a matter could not be relitigated was not to be extended to stop an action on a guarantee after other action. A party can request payment under a guarantee where the huarantee had survived a prior judgment.

Citations:

Times 09-Dec-1993, Ind Summary 27-Dec-1993

Jurisdiction:

England and Wales

Litigation Practice

Updated: 26 October 2022; Ref: scu.80153

GE Capital Corporate Finance Group v Bankers Trust Co and Others: CA 3 Aug 1994

Irrelevant parts of documents required to be disclosed may be blanked out on discovery by the party giving discovery. Hoffmann LJ: ‘It has long been the practice that a party is entitled to seal up or cover up parts of a document which he claims to be irrelevant’, and after citing Jones v Andrews, ‘In my view, the test for whether on discovery part of a document can be withheld on grounds of irrelevance is simply whether that part is irrelevant’.

Judges:

Hoffmann LJ, Legatt LJ

Citations:

Gazette 12-Oct-1994, Independent 02-Sep-1994, Times 03-Aug-1994, [1995] 1 WLR 172

Jurisdiction:

England and Wales

Citing:

Cited – Jones v Andrews 1888
Where a party to proceedings gives his list of documents supported by his oath, discovery is conclusive, Cotton LJ said that: ‘unless the court can be satisfied – not on a conflict of affidavits, but either from the documents produced or from . .

Cited by:

Cited – Paddick v Associated Newspapers Ltd QBD 10-Dec-2003
The defendant sought disclosure of full statements used by the claimant . Extracts only had been supplied, and he said they contained private and confidential material.
Held: The application failed. The claimant had stated that the balance of . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – Brennan and others v Sunderland City Council Unison GMB EAT 16-Dec-2008
No Waiver for disclosure of Advice
EAT PRACTICE AND PROCEDURE: Admissibility of evidence
The claimant sought disclosure of certain legal advice on the basis that its effect, and a summary of its contents, had been put before the court and . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 26 October 2022; Ref: scu.80777

Fozal v Gofur: CA 9 Jul 1993

An order for wasted costs against counsel could only be allowed with respect to acts done after 1 October 1991, with the new rules.

Citations:

Times 09-Jul-1993, Ind Summary 26-Jul-1993, [1993] CA Transcript 680

Statutes:

Courts and Legal Services Act 1990$ 4

Jurisdiction:

England and Wales

Cited by:

Cited – Ridehalgh v Horsefield; Allen v Unigate Dairies Ltd CA 26-Jan-1994
Guidance for Wasted Costs Orders
Guidance was given on the circumstances required for the making of wasted costs orders against legal advisers. A judge invited to make an order arising out of an advocate’s conduct of court proceedings must make full allowance for the fact that an . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs, Legal Professions

Updated: 26 October 2022; Ref: scu.80655

Continental Bank Na v Aeakos Compania Naviera Sa and Others: CA 26 Nov 1993

The Bank was entitled to an injunction in the UK, by virtue of the jurisdiction given in their agreement, even though it was not the UK court which was first seised of the matter. Steyn LJ said: ‘. . a claim for damages for breach of contract would be a relatively ineffective remedy. An injunction is the only effective remedy for the appellants’ breach of contract. If the injunction is set aside, the appellants will persist in their breach of contract, and the bank’s legal rights as enshrined in the jurisdiction agreements will prove to be valueless. Given the total absence of special countervailing factors, this is the paradigm case for the grant of an injunction . .’

Judges:

Steyn LJ

Citations:

Ind Summary 13-Dec-1993, Times 26-Nov-1993, [1994] 1 WLR 588

Statutes:

Brussels Convention 1968 Art 17

Jurisdiction:

England and Wales

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Banking, Jurisdiction

Updated: 26 October 2022; Ref: scu.79470