Tag: Litigation Practice

Baker, Regina (On the Application of) v Hossack: Admn 10 Sep 2009

The solicitor faced professional misconduct disciplinary proceedings. She sought witness summses for the applicant, a solicitor and officer of a local authority taking part in the action which was the origin of the complaint. They stated that they had no relevant knowledge and that the summonses were not issued in good faith.
Held: The purpose of the disciplinary proceedings were to determine the propriety and standards of the solicitor’s practice. The motives of the witness summonses were as to the motives for making the complaint. The witnesses should not be required to give evidence and the summonses were set aside.

Judges:

Silber J

Citations:

[2009] EWHC 2463 (Admin)

Links:

Bailii

Litigation Practice, Legal Professions

Updated: 04 August 2022; Ref: scu.376214

Cadogan Petroleum Plc and Others v Tolley and Others: ChD 16 Oct 2009

The claimant applied for permission to use at trial a transcript of a cross examination of a defendant at an earlier hearing, using the full transcript but ordering that it was not to be used in any criminal or contempt proceedings.

Judges:

Peter Smith J

Citations:

[2009] EWHC 2527 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 04 August 2022; Ref: scu.376147

South Shropshire District Council v Amos: CA 1986

Lord Justice Parker said that the use of the words ‘without prejudice’ prima facie meant that a letter was intended to be a part of negotiation. A letter which purported to initiate some sort of negotiation (‘an opening shot’) is not necessarily excluded from the privilege. Negotiations have to begin somewhere. The protection under the rule ‘attaches to all documents which are marked ‘without prejudice’ and form part of negotiations, whether or not they are themselves offers, unless the privilege is defeated on some other ground.’ Where a letter was marked ‘without prejudice’, ‘This prima facie means that it was intended to be a negotiating document.’

Judges:

Parker LJ

Citations:

[1987] 1 All ER 340, [1986] 1 WLR 1271

Jurisdiction:

England and Wales

Cited by:

Cited – Buckinghamshire County Council v Moran CA 13-Feb-1989
The parties’ respective properties were separated by a fence or hedge and the true owner had no access to the disputed land. In 1967 the Defendants’ predecessors in title began to maintain the land by mowing the grass and trimming the hedges and . .
Cited – Williams v Hull ChD 19-Nov-2009
The parties had bought a house together, but disputed the shares on which it was held. The appeal was on the basis that a without prejudice letter had been redacte and then wrongly admitted as not in fact without prejudice, an as an unambiguous . .
Cited – Avonwick Holdings Ltd v Webinvest Ltd and Another ChD 10-Oct-2014
Application by the claimant that certain correspondence between the parties and their solicitors in April-May 2014 should be admissible as evidence, notwithstanding that most of it was headed ‘without prejudice and subject to contract’. The . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 July 2022; Ref: scu.259700

Rothermere v Times Newspapers Ltd: CA 1973

The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury.
Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated.
Lord Denning MR said: ‘Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest — and is then charged with libel — then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.’ and ‘the right given by our constitution to a Defendant who is charged with libel, either in criminal or civil proceedings. Every Defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the Defendant has ventured to criticise the government of the day, or those who hold authority or power in the state’.

Judges:

Lord Denning MR

Citations:

[1973] 1 WLR 448

Statutes:

Administration of Justice (Miscellaneous Provisions) Act 1933

Jurisdiction:

England and Wales

Cited by:

Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – 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 . .
Cited – Cook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice, Constitutional

Updated: 31 July 2022; Ref: scu.184760

Lake v Lake: CA 1955

Mrs Lake’s answer to an allegation of adultery had been one of denial or, in the alternative, condonation. Her husband’s petition was dismissed, the Commissioner finding that there had been adultery but that it had been condoned. She sought to appeal against the finding of adultery
Held: Her appeal was refused. A party cannot appeal against a judgment when he has no complaint about the order in fact made. A party’s statutory right to appeal is governed by section 27 which allows for an appeal from ‘the whole or any part of any judgment or order’, which means the ‘formal judgment or order.’ It is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgmentit is the order that the court makes that disposes of the proceedings and provides the basis for an appeal, not the issuing of the reasons for it in the form of the court’s judgment.
Hodson LJ said: ‘This is an attempt by a successful party to appeal against an order which she has obtained in her favour. In my judgment, this court cannot entertain such an appeal.’

Judges:

Sir Raymond Evershed MR, Hodson LJ

Citations:

[1955] P 336

Statutes:

Judicature Act 1925 27

Jurisdiction:

England and Wales

Cited by:

Cited – Jones and others v Ceredigion County Council CA 28-Jul-2005
The parties had challenged the respondent’s decision not to provide free transport to school. The judge granted certificates allowing leave to apply direct to the House of Lords on two issues, and to the Court of Appeal on one other. The House later . .
Cited – Office of Communications and Another v Floe Telecom Ltd CA 10-Feb-2009
The court was asked to accept an appeal against not the order made by the tribunal, but the terms of the reasoned judgment.
Held: The appeal was allowed. The Tribunal had made findings which were unnecessary to its judgment, and which were . .
Cited – Secretary of State for Work and Pensions v Morina and Another CA 23-Jul-2007
The Secretary of State had won his case on the substance but wished to challenge parts of the judgement which dealt with jurisdictional points.
Held: The court could hear an appeal by a successful party where there were good reasons for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family

Updated: 31 July 2022; Ref: scu.230066

Norwich and Peterborough Building Society v Steed: CA 1991

The four factors to be taken into account when considering an application to extend the time for leave to appeal are (1) the length of the delay; (2) the reasons for the delay; (3) the chances of the appeal succeeding if an extension of time is granted; and (4) the degree of prejudice to the respondent if the application is granted.

Judges:

Lord Donaldson of Lymington MR

Citations:

[1991] 1 WLR 449

Jurisdiction:

England and Wales

Cited by:

See Also – Norwich and Peterborough Building Society v Stead 1993
It is for the person who has signed a document to show that the transaction which it effects is essentially different from the transaction intended so that the signatory can claim non est factum and say that he did not consent to it. But he also has . .
Cited – London Borough of Bromley v l Morritt CA 20-Jul-1998
The defendant sought an extension of time to apply for leave to appeal. He had been ordered to remove a wall which the claimant said enclosed what was part of the highway, and which the defendant said he had acquired by adverse possession.
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 31 July 2022; Ref: scu.230019

Belize Alliance of Conservation Non-Governmental Organisations v Department of the Environment and Another (No 2): PC 13 Aug 2003

(Belize) The applicants sought an interim order preventing continuation of the building of a dam, saying that the environmental damage had not been properly aanticipated.
Held: The Board of the Council did have power to grant an interim injunction to preserve the situation pending a final ruling. That power derived from the power of any superior court to supervise its own procedures. The principles to be applied were the general ones applying those from American Cynamid, amended as necessary to accord with the context of public law. However, here the very substantial works were already under way, the claimants were understandably unable to undertake for any damages, and the balance of convenience lay against the applicants, and no order should be made.

Judges:

Lord Walker of Gestingthorpe Sir Martin Nourse Sir Andrew Leggatt

Citations:

[2003] UKPC 63, Times 25-Sep-2003, Gazette 16-Oct-2003, [2004] 2 P and CR 2, [2004] Env LR 16, [2003] 1 WLR 2839

Links:

Bailii, PC, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Thomas Reckley v The Minister of Public Safety and Immigration and others (Petition for a stay of execution) PC 13-Jun-1995
(The Bahamas) If a serious constitutional issue is fairly raised by an appeal as to the constitutionality of the death penalty, then the death penalty must be stayed. . .
Cited – Her Majesty’s Attorney General v Punch Limited and another HL 12-Dec-2002
A former MI5 agent, Mr Shayler, was to be prosecuted under the Official Secrets Act, and an injunction against publication was granted. The respondent published further works by Mr Shayler, and now appealed a finding that it had acted in contempt of . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .

Cited by:

See Also – Belize Alliance of Conservation Non-Governmental Organisations v The Department of the Environment Belize Electric Company Limited PC 29-Jan-2004
PC (Belize) Lord Walker said: ‘It is now clear that proceedings for judicial review should not be conducted in the same manner as hard fought commercial litigation. A Respondent authority owes a duty to the court . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice, Environment

Updated: 28 July 2022; Ref: scu.185741

The Scotch Whisky Association v Kella Distillers Ltd: ChD 27 Dec 1996

A judge has no power at an interlocutory stage to order the editing of an expert’s report.

Citations:

Times 27-Dec-1996

Jurisdiction:

England and Wales

Citing:

See Also – Scotch Whisky Association and Others v Glen Kella Distillers Ltd (No 2) ChD 1-Apr-1997
Re-distilled whisky may not be called ‘whisky’ when re-sold – not as defined. . .

Cited by:

See Also – Scotch Whisky Association and Others v Glen Kella Distillers Ltd (No 2) ChD 1-Apr-1997
Re-distilled whisky may not be called ‘whisky’ when re-sold – not as defined. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 28 July 2022; Ref: scu.89846

Webster and Others v The Governors of the Ridgeway Foundation School: QBD 21 May 2009

The first claimant had been severely beaten as he left school. He and his parents also claimed post traumatic stress. They alleged that the school had been negligent in having allowed racial tensions to develop. The claimant was white, and his attackers Asian. The claimants sought disclosure of the school’s disciplinary records unredacted so that the racial origins could be identified. The school, reacted saying that beyond disclosing the names of the attackers, the remaining names were protected by confidence.
Held: Some requests were too wide to satisfy the need for certainty. Others would require specific justification to support the interference with the particular privacy of children.

Judges:

Nicol J

Citations:

[2009] EWHC 1140 (QB)

Links:

Bailii

Statutes:

European Convention on Human Rights 8

Jurisdiction:

England and Wales

Citing:

Cited – Kenny, Regina (on the Application of) v Leeds Magistrates Court, Leeds City Council Admn 5-Dec-2003
In cases involving children, Article 3 provides that the best interests of the child are a primary consideration, not the primary consideration.
The court looked at the test for making an interim ASBO: ‘Consideration of whether it is just to . .
Cited – Todd v Crown Prosecution Service; T v Director of Public Prosecutions and Another; Todd v DPP QBD 6-Oct-2003
The defendant had been under 18 at the commencement of proceedings but attained 18 during them. The newspaper was granted leave to refer to him by name upon his becoming 18.
Held: Denying the appeal. The balance between the freedom of the . .

Cited by:

See Also – Webster and Others v Ridgeway Foundation School QBD 5-Feb-2010
The claimant had been severely injured when attacked at school. He was a white youth, and his attackers all Asian. The school had a history of inter-racial tension, and he claimed in negligence, and that they had failed to protect his human right . .
See Also – Webster and Others v The Ridgeway Foundation School QBD 2-Mar-2010
The court considered whether costs should be payable on a standard or indemnity basis. . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Human Rights, Education, Information, Litigation Practice

Updated: 26 July 2022; Ref: scu.346752

Green v Half Moon Bay Hotel (Antigua and Barbuda): PC 2 Jun 2009

The claimant appealed on the basis that the appeal court had not given reasons for its decision rejecting his appeal.
Held: There were real grounds to doubt elements of the applicant’s version of events, but in essence the appeal had been about whether any arguable issue of law arose. None had in fact been shown. The claimant had been able to understand why his appeal was rejected, and ‘where an appeal is possible only on a point of law quite brief reasons may be sufficient.’

Judges:

Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Neuberger of Abbotsbury

Citations:

[2009] UKPC 23

Links:

Bailii

Citing:

Applied – English v Emery Reimbold and Strick Ltd; etc, (Practice Note) CA 30-Apr-2002
Judge’s Reasons Must Show How Reached
In each case appeals were made, following Flannery, complaining of a lack of reasons given by the judge for his decision.
Held: Human Rights jurisprudence required judges to put parties into a position where they could understand how the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 26 July 2022; Ref: scu.346617

A and E Television Networks Llc and Another v Discovery Communications Europe Ltd: ChD 20 Apr 2011

Case management decision in trade mark infringement action, on the extent to which the court should give permission for a survey to be conducted, and for evidence resulting from previous surveys to be admitted.
Held: Mann J gave the claimant permission to administer questionnaires to members of the public in the form attached to the order.
Mann J said: ‘In the case before me, as will appear, it is necessary to bear in mind the juridical basis of what it is that the court is doing when exercising its control. In my view it is doing (at least) the following:
i) So far as a party is going to seek to put expert evidence before the court, the court is exercising its power to control the amount and nature of expert evidence in order to make sure the expert evidence is proper evidence, admissible, and proportionate.
ii) So far as a party seeks to put in the actual answers to questions, the court is ensuring the evidence is admissible and probative.
iii) So far as the court is controlling the calling of live witnesses obtained as a result of some form of survey evidence (so-called witness collection exercises) it is again ensuring that the evidence is admissible and probative. In particular, it is acting to prevent a party seeking to call a witness whose evidence is going to be tainted to an unacceptable degree by the mechanism under which it is collected (an inappropriate question).
iv) In so doing, the court is ensuring that costs are not wasted and are proportionate. It is wrong for costs to be wasted in conducting hopeless surveys, for the other party to have to waste costs dealing with that evidence, and for court time to be wasted in dealing with it at trial.
v) When a court is acting in this capacity it must bear in mind that it is acting at some remove from the trial. If it disallows a survey it is concluding, short of a trial, that evidence which one party wishes to adduce should not be allowed in because it will be of no or insufficient value. In embarking on that exercise it must acknowledge that there will be cases in which it is not wholly clear that the evidence in question will be valueless. In those circumstances the right course may be not to bar the evidence or survey at the interim stage, but to allow it and to have more informed argument at the trial (or conceivably at another interim stage, provided that that is a cost-effective way of going about the matter).’

Judges:

Mann J

Citations:

[2011] EWHC 1038 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Directions – A and E Television Networks Llc and Another v Discovery Communications Europe Ltd ChD 1-Feb-2013
The claimants had operated the ‘History’ and associated variant TV channels and trade marks. The claimed that the defendant’s ‘Discovery History’ channels were in breach. The defendants challenged the validity of the trade marks. The court now . .
Cited – Marks and Spencer Plc v Interflora Inc and Another CA 20-Nov-2012
The court gave guidance on the use of surveys in trials for passing off and trade mark infringement.
Lewison LJ reviewed the practice of conducting interviews and surveys in passing off cases: ‘The upshot of this review is that courts have . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice

Updated: 25 July 2022; Ref: scu.434878

In Re Banco Nacional De Cuba: ChD 7 Jun 2001

Where it was alleged that shares in a UK company had been sold at an undervalue, so as to allow a challenge in insolvency proceedings, the leave of the court was still required if the pleadings were to be served abroad. When the court considered such an application, it had to look not just at the fact that the property to which the claim related is in the jurisdiction, but also at reality of the extent of the connection with the UK, and the difficulties if any of enforcement. Here the claimant had not demonstrated that the purpose of the transaction might be to defeat creditors, and one would, in its own jurisdiction, enjoy immunity from enforcement. Section 423 ‘extends to any claim for relief, whether for damages or otherwise, so long as it is related to property located within the jurisdiction’ and ‘the claim under section 423 relates to the shares and particularly the disposition of the shares.’ By CPR 6.20(10) the court may assume jurisdiction if the whole subject-matter of the claim relates to property situated in England.
Lightman J: ‘The critical differences between RSC, O 11, r 1(1)(g) and CPR 6.20(10) is the substitution for the words ‘land situate within the jurisdiction’ of the words ‘relates to property located within the jurisdiction’. The implications are that: (1) the rule is no longer limited to land and now extends to personal property; and (2) instead of the whole claim having to be confined to a claim to a proprietary or possessory interest, it is sufficient that the whole claim relates to property. The evident purpose of the new rule is to lay down a single rule in place of the three earlier rules which embraces and extends beyond the contents of those rules. It is to be noted that at p 128 of the Autumn 2000 Civil Procedure (‘White Book’) the comment is made on CPR 6.20(10): ‘This wide and new provision is no longer confined to land and the old cases are redundant.’ In my view on its proper construction the rule cannot be construed as confined to claims relating to the ownership or possession of property. It extends to any claim for relief (whether for damages or otherwise) so long as it is related to property located within the jurisdiction. This construction vests in the Court a wide jurisdiction, but since the jurisdiction is discretionary the Court can and will in each case consider whether the character and closeness of the relationship is such that the exorbitant jurisdiction against foreigners abroad should properly be exercised.’

Judges:

Lightman J

Citations:

Times 18-May-2001, Gazette 07-Jun-2001, [2001] 1 WLR 2039

Statutes:

Civil Procedure Rules 6.20., Insolvency Act 1986 423

Jurisdiction:

England and Wales

Cited by:

Cited – Shahar v Tsitsekkos and others ChD 17-Nov-2004
The defendant wished to make a claim against another party outside the jurisdiction and was granted permission to serve documents which were headed ‘defence and counterclaim’. The proposed defendant argued that such a document could be served in . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Lists of cited by and citing cases may be incomplete.

International, Civil Procedure Rules, Insolvency, Litigation Practice

Updated: 24 July 2022; Ref: scu.81730

Tarn Insurance Services Ltd v Kirby and others: CA 27 Jan 2009

Claim by company in administration against former directors for excess payments alleged to have been taken by them. There was now alleged a wilful failure to comply wih court orders for disclosure..
Held: Once non-compliance with an unless order was established, what is required in order to grant relief from sanctions is a material change in circumstances: ‘to relieve someone against such a default was sending ‘entirely the wrong message to those who face allegations of fraud’, and ‘In a case of deliberate and persistent non-compliance with orders to provide information and deliver documents made in order to safeguard proprietary claims, a proper administration of justice requires that, save in very exceptional circumstances, sanctions imposed should take effect. There were no exceptional circumstances in the present case.’

Judges:

Waller LJ VP, Thomas LJ, Sir John Chadwick

Citations:

[2009] EWCA Civ 19, [2009] CP Rep 22

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Applied – Thevarajah v Riordan and Others ChD 9-Aug-2013
The court was asked first whether the defendants had complied with an unless order made with respect to the disclosure of information required to be provided in aid and in order to ensure the proper release of a freezing order which had previously . .
Cited – Thevarajah v Riordan and Others ChD 10-Oct-2013
The court allowed the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. . .
Cited – Thevarajah v Riordan and Others CA 16-Jan-2014
Defendants appealed against an order allowing the application of the first, second and fourth respondents for relief from sanction under CPR 3.9. The relief sought had previously been refused by Hildyard J, so this was the respondents’ second . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Company, Litigation Practice, Torts – Other

Updated: 22 July 2022; Ref: scu.280416

Pirelli Cables Ltd and Others v United Thai Shipping Corporation Ltd and Others: QBD 5 Apr 2000

A writ was issued under the old rules. An application for relief to extend time for service was lodged within the four months but heard outside the limit under the old rules, but, again, inside the time limit under the new rules. It was held that for a writ issued under the old rules, should be judged under the old rules. An exclusive jurisdiction clause applied and the matter must be dealt with in accordance with it.

Citations:

Gazette 18-May-2000, [2000] EWHC 195 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 21 July 2022; Ref: scu.84742

Laserpoint Ltd v The Prime Minister of Malta and Others: QBD 20 Jul 2016

Appeal from the order declaring that a judgment in the Civil Court in Malta may be enforced in England and Wales against Laserpoint Limited the appellant.

Judges:

Patterson DBE J

Citations:

[2016] EWHC 1820 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Negligence, Litigation Practice

Updated: 21 July 2022; Ref: scu.567291

H v L and R: FD 7 Dec 2006

A male litigant in person wished to cross-examine a young adult woman whom he was alleged to have abused sexually when she was a child. The young woman in question was a borderline anorexic and a suicide risk. In criminal proceedings, section 34A of the 1988 Act and sections 34 and 35 of the 1999 Act would forbid a defendant from cross-examining a child witness personally.
Held: No such provisions applied in the Family Courts. The Attorney-General , at the court’s urgent request, agreed, exceptionally, to provide an advocate.
Wood J concluded: ‘I would invite urgent attention as to creating a new statutory provision which provides for representation in such circumstances, analogous to the existing statutory framework governing criminal proceedings as set out in the 1999 Act. Such a statutory provision should also provide that the costs of making available to the court an advocate should fall on public funds. I can see no distinction in policy terms between the criminal and the civil process. Logic strongly suggests that such a service should be made available to the family jurisdiction. If it is inappropriate for a litigant in person to cross-examine such a witness in the criminal jurisdiction, why not in the family jurisdiction? This is my judgment’.

Judges:

Wood J

Citations:

[2006] EWHC 3099 (Fam), [2007] 2 FLR 162, [2007] 1 FCR 430

Links:

Bailii

Statutes:

Youth Justice and Criminal Evidence Act 1999 34 35, Criminal Justice Act 1988 34A

Jurisdiction:

England and Wales

Cited by:

Approved – Chief Constable and Another v YK and Others FD 6-Oct-2010
The court gave directions in Forced Marriage Protection order applications. An order had been made at the request of the police on behalf of A, and the court had declined to discharge it on A’s own application.
Held: Special advocates were not . .
Lists of cited by and citing cases may be incomplete.

Family, Litigation Practice

Updated: 21 July 2022; Ref: scu.279030

Tombstone Ltd v Raja and Another; Raja v Van Hoogstraten and others (No 9): CA 17 Dec 2008

The claimant complained of an irregularly obtained judgment. The defendant had obtained an amendment to a writ of sequestration in the course of a bitterly fought dispute bewteen the defendant and the owner of the claimant. The judge had found the irregularity proved, but declined to set the order aside. The claimant now said that the judge did not have a discretion not to set the order aside.
Held: The claimant knew of the fault in the order but had not complained of it at later hearings when that suited it.
The court’s inherent powers ‘are complementary to its powers under rules of court; one set of powers supplements and reinforces the other’. The court approved the statement that ‘the inherent jurisdiction may supplement but cannot be used to lay down procedure which is contrary to or inconsistent with a valid rule of the Supreme Court’. This applies in relation to the CPR in the same way that it applied when the previous rules, the RSC, were in force.
The intervener sought to set aside an order made which affected it as to the alleged irregularity of an order obtained.
Held: The primary objective was to obtain a just result. Applications to set aside orders made without notice were subject to rule 23.10. That rule gave a discretion to the judge. Where a third party was affected the normal consequence would be a setting aside of the order obtained, but where the interests of justice required it in an exceptional case, the order might not be set aside. The court’s inherent jurisdiction should not be used where the issue was covered by the rules, and it should not be used to obtain a different conclusion.

Judges:

Mummery LJ, Dyson LJ, Maurice Kay LJ

Citations:

[2008] EWCA Civ 1444, [2009] 1 WLR 1143

Links:

Bailii, Times

Statutes:

Civil Procedure Rules 23.9 23.10

Jurisdiction:

England and Wales

Citing:

Cited – Gosset v Howard 1845
Sequestrators, as officers of the court who act under the order of the court, are entitled to immunity from suit. . .
Cited – Smith v Sydney 1871
A sequestration order, while in force, was a valid order providing legal protection to those who had obtained it and acted upon it. The court made a distinction between acts of the court and the acts of the parties. . .
Cited – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – Regina v Collins; Pathfinder Mental Health Services NHS Trust and St Georges Health Care NHS Trust ex parte M S CA 3-Jul-1997
The hospital authorities applied ex parte and were granted a declaration which dispensed with the applicant’s consent to medical treatment.
Held: Her appeal was allowed. A declaration (especially one affecting an individual’s personal . .
Cited – Nelson and Another v Clearsprings (Management) Ltd CA 22-Sep-2006
The defendant did not appear at the trial and now appealed the judgment. The claim form and court papers had been served by post at the wrong address. The question was whether a defendant wanting to set aside a judgment was required to persuade the . .
Appeal from – Raja v Van Hoogstraten and others (No 9) ChD 26-Jul-2007
The court had set aside an sequestration order made following a finding of contempt when the contempt order was incorrectly made. The intervener which had been prejudiced by the sequestration order now sought to argue that the sequestration order . .

Cited by:

Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Civil Procedure Rules

Updated: 21 July 2022; Ref: scu.278823

Jacobs UK Ltd v Skidmore Owings and Merrill Llp: TCC 21 Nov 2008

The claimant sought summary judgment, but the parties submitted very large volumes of material for consideration. Coulson J said: ‘ It might be said that a case which involves so much material and so much evidence cannot possibly be suitable for a claim under CPR Part 24, and that the application should have been dismissed without further ado. In some types of dispute, there may be force in such an observation. However, until the court has been through the material, no matter how detailed, it may not be possible to say whether the defence that is revealed there meets the test of ‘real prospect of success’ required under CPR Part 24 or, even if it does, whether the defence raised can only be described as ‘possible’, with the result that a conditional order may be appropriate under r24.6.’

Judges:

Coulson J

Citations:

[2008] EWHC 2847 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 21 July 2022; Ref: scu.278531

Regina v Mid Glamorgan Family Health Services and Another, ex parte Martin: QBD 2 Jun 1993

The Access to Health Records Act 1990 did not give retrospective rights of access to records which had been created before it was brought into effect.

Citations:

Times 02-Jun-1993, Gazette 14-Jul-1993, Independent 08-Jun-1993

Statutes:

Access to Health Records Act 1990

Jurisdiction:

England and Wales

Cited by:

Appeal from – Regina v Mid Glamorgan Family Health Services Authority, ex parte Martin CA 7-Sep-1994
A doctor may deny a patient access to his health records if it is in the patient’s best interests to do so. There is no common law right for a patient to see his own medical records, and the Act is not retrospective. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Health Professions

Updated: 21 July 2022; Ref: scu.87334

Chantry Estates (South East) Ltd v Anderson and Another: ChD 3 Oct 2008

The claimant sought specific performance of a contract for the sale of land. The purchase was under an option agreement. The option was exercisable on the grant of planning permission within a certain period, extensible in the case of an appeal.
Held: The contract did not impose much by way of obligation on the buyer and was one sided. There was no reasonable prospect of the defendant succeeding, and summary judgment was granted.

Judges:

Morgan J

Citations:

[2008] EWHC 2457 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Rules 24

Jurisdiction:

England and Wales

Litigation Practice, Contract, Land

Updated: 19 July 2022; Ref: scu.277022

In Re Manlon Trading Ltd: ChD 15 Aug 1994

A different approach is required on striking out in Company Director Disqualification proceedings.

Citations:

Times 15-Aug-1994, Ind Summary 15-Aug-1994

Statutes:

Company Directors Disqualification Act 1986

Jurisdiction:

England and Wales

Cited by:

Appeal from – In Re Manlon Trading Ltd CA 22-Jun-1995
Company Director Disqualification proceedings were struck out for delay. There has to be a balance between the public interest in securing the disqualification of bad directors and the prejudice to private citizens and the people subject to the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 19 July 2022; Ref: scu.82045

Fitzroy Robinson Ltd v Mentmore Towers Ltd: TCC 26 Nov 2009

The court considered the approach to be taken when considering an ‘ordinary’ adjournment of a forthcoming trial date; where the adjournment was said to be necessitated by the parties’ failure to comply with the earlier directions of the court, which non-compliance, so it was said, made a fair trial difficult if not impossible.

Judges:

Coulson J

Citations:

[2009] EWHC 3070 (TCC), 128 Con LR 91, [2010] CP Rep 15

Links:

Bailii

Jurisdiction:

England and Wales

Land, Litigation Practice

Updated: 18 July 2022; Ref: scu.393354

The Royal Oak Property Company Ltd v Iktilat and Another: ChD 23 Jul 2008

The defendant was registered proprietor of two properties, but resisted orders for sale of them under charging orders, saying that he was not the beneficial owner of them.

Judges:

Floyd J

Citations:

[2008] EWHC 1703 (Ch)

Links:

Bailii

Statutes:

Charging Orders Act 1979 2

Jurisdiction:

England and Wales

Land, Litigation Practice

Updated: 18 July 2022; Ref: scu.271106

In Re BCCI and Another; Morris and Others v Mahfouz and Others (No 3): ChD 5 May 1994

An application to strike out solely on ground of non-compliance with rules of pleadings was not justified.

Citations:

Times 05-May-1994

Jurisdiction:

England and Wales

Cited by:

See Also – Choil Trading Sa v Sahara Energy Resources Ltd ComC 26-Feb-2010
Losses incurred from hedging undertaken in mitigation of breach of a sale contract are recoverable . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 July 2022; Ref: scu.81741

In Re Blenheim Leisure (Restaurants) Ltd (No 3): ChD 9 Nov 1999

It was wrong in principle to go back to a judge to ask him to reconsider his own interlocutory decision. Such an approach should only be made with very strong reason, since it worked against finality and wasted court time. The order not having been drawn up, the judge had retained such jurisdiction, but should only exercise it with great care.

Citations:

Gazette 17-Nov-1999, Times 09-Nov-1999

Jurisdiction:

England and Wales

Litigation Practice

Updated: 18 July 2022; Ref: scu.81755

O Ltd v Z: ChD 23 Feb 2005

The court was asked whether a search under a court order of a former employee’s computer for materials alleged to have been taken, which discovered material possession of which itself was a crime, infringed the defendant’s rights against self incrimination.
Held: The material was to be handed over, but the judge suggested this might not be the case had the defendant first suggested he might rely on the privilege against self-incrimination.

Judges:

Lindsay J

Citations:

[2005] EWHC 238 (Ch)

Links:

Bailii

Statutes:

Civil Procedure Act 1997 7

Jurisdiction:

England and Wales

Citing:

Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:

Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Cited – C Plc v P and Attorney General Intervening CA 22-May-2007
The respondent had been subject to a civil search, which revealed the existence of obscene images of children on his computer. He appealed against refusal of an order that the evidence should not be passed to the police as evidence. He said that the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 18 July 2022; Ref: scu.224494

Securities and Investments Board v Lloyd-Wright and Another: ChD 23 Jun 1993

The SIB sought injunctions pursuant to the 1986 Act, three to prevent continued breaches of the law and fourth, an asset freezing order. It was argued that although it might be right to dispense with a cross-undertaking in damages in relation to the first three injunctions, a Mareva was quite different and that ‘such an order was draconian in its nature, and not strictly law enforcement.’
Held: A material factor was whether the public body applicant enjoyed an immunity from damages claims. Since (a) the SIB was authorised by statute ‘to claim monetary restitution for the benefit of those who may have suffered losses as a result of the unauthorised business’, and, since (b) the remedy whether monetary or injunctive was ‘one provided by statute and is provided to the [SIB], not for [their] own benefit but for the benefit of the public at large or those who have suffered from the infringement . .’, it was appropriate for there to be no cross-undertaking in damages. In each case the injunction was sought as a means of law enforcement and that the fact that a Mareva was draconian did not prevent it being law enforcement but merely reflected the worldwide nature of the defendants’ activities.

Citations:

Times 23-Jun-1993, [1993] 4 All ER 210

Statutes:

Financial Services Act 1986, Financial Services Act 1986

Jurisdiction:

England and Wales

Citing:

Applied – In re Highfield Commodities Ltd ChD 1985
The court’s discretion in appointing provisional liquidators is unfettered provided it is exercised in a ‘proper judicial manner’. Sir Robert Megarry V-C said: ‘I would respectfully express my complete agreement with the view taken by [the judge]. I . .

Cited by:

Cited – The Financial Services Authority v Sinaloa Gold Plc and Others SC 27-Feb-2013
The FSA sought injunctions to restrain the activities of the first defendants, including asset freezing orders under section 380 of the 2000 Act. The defendant’s bankers objected that they would be prejudiced by the restrictions without the FSA . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Financial Services

Updated: 17 July 2022; Ref: scu.89151

Ruttle Plant Ltd v Secretary of State for Environment Food and Rural Affairs No. 2: TCC 30 Apr 2008

Judges:

Ramsey J

Citations:

[2008] EWHC 238 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Ruttle Plant Hire Ltd v Secretary of State for Environment, Food and Rural Affairs (No. 3) TCC 20-Mar-2008
. .

Cited by:

See Also – Ruttle Plant Hire Ltd v Secretary of State for Environment Food and Rural Affairs CA 27-Feb-2009
Late payment interest not lost for invoice error
The claimant had become entitled to payment for services and submitted its invoices. When the defendant failed to pay promptly, it added sums due under the 1998 Act. The defendant responded that errors on the invoices made the claims for the . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract

Updated: 17 July 2022; Ref: scu.270336

Berezovsky v Abramovich: ComC 22 May 2008

Applications were made to amend pleadings and for consequential orders. The claimant sought damages of $4.3 billion alleging breach of trust. The claimant sought to add claims which the defendant said were out of time.
Held: The proposed amendment was refused. ‘It is open to the Claimant to bring claims for breach of trust or of fiduciary duty more than six years after the causes of action arose but only for those explicitly based on and limited to fraud. The current proposed amendment is not explicit about fraud.’

Judges:

Mackie J QC

Citations:

[2008] EWHC 1138 (Comm)

Links:

Bailii

Statutes:

Limitation Act 1980 21(1)(a)

Citing:

Cited – Cobbold v London Borough of Greenwich CA 9-Aug-1999
The tenant had sought an order against the council landlord for failure to repair her dwelling. The defendant appealed refusal of leave to amend the pleadings in anticipation of the trial, now due to start on the following day.
Held: Leave was . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – Paragon v Thakerer 1993
A claim for fraudulent or intentional breach of trust/fiduciary duty is a different cause of action from a claim for breach of trust/fiduciary duty generally and must be separately and distinctly pleaded. . .
Cited – Giles v Rhind CA 28-Feb-2008
. .
Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Goode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
Cited – Welsh Development Agency v Redpath Dorman Long Ltd CA 4-Apr-1994
A new claim was not deemed to have been made until the pleading was actually amended for limitation purposes, and should not be allowed after the limitation period had expired. The date of the application for leave to amend was not at issue. The . .
Cited – The Convergence Group Plc and Another v Chantrey Vellacott (a Firm) CA 16-Mar-2005
An accountant sought payment of his professional fees. The defendants had sought to re-amend their defence and counterclaim. Appeals had variously been allowed to go ahead or denied after the master had not been able to deal with all of them for . .
Cited – Nomura International Plc v Granada Group Ltd and others ComC 23-Mar-2007
To fulfil the requirement in CPR Part 16.2.1(a) ‘it is necessary at least to give some idea or indication of the duty which it is alleged the defendant has failed to perform.’ . .
Cited – P and O Nedloyd BV v Arab Metals Co and Others (‘The UB Tiger’) QBD 22-Jun-2005
The claimants sought to amend their particulars of claim to add a request for declarations with regard to a bill of lading and contract for carriage.
Held: The application to amend was made more than six years after the cause of action . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Trusts, Limitation

Updated: 15 July 2022; Ref: scu.268005

Shandong Chenming Paper Holding Ltd and others v Saga Forest Carriers Intl As and Another: ComC 14 May 2008

Alleged breach of contract and/or duty and/or negligence in and about the loading handling custody care and discharge of cargo of bleached eucalyptus kraft pulp. Amendmenmt to allow time bar defence to proceed.

Judges:

Walker J

Citations:

[2008] EWHC 1055 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Contract, Litigation Practice

Updated: 14 July 2022; Ref: scu.267669

Dean and Dean (A Firm) v G: QBD 7 May 2008

Solicitors sought payment of their fees. The defendant appealed against the grant of a world wide assets freezing order, saying that the firm had no claim and had not made full disclosure and that there was no demonstrated risk of her dissipating her assets.

Citations:

[2008] EWHC 927 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice

Updated: 14 July 2022; Ref: scu.267561

Cumbria Waste Management Ltd and Another v Baines Wilson (A Firm): QBD 16 Apr 2008

The court was asked to consider whether documents generated in a mediation could be disclosed by one of those parties in later proceedings against solicitors for negligence in drafting and negotiation and agreement with the other party, which gave rise to the disputes dealt with in the mediation.
Held: Judge Kirkham considered both questions of privilege and confidentiality.

Judges:

Kirkham HHJ

Citations:

[2008] EWHC 786 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Halsey v Milton Keynes General NHS Trust etc CA 11-May-2004
The court considered the effect on costs orders of a refusal to take part in alternate dispute resolution procedures. The defendant Trust had refused to take the dispute to a mediation. In neither case had the court ordered or recommended ADR.

Cited by:

Cited – Farm Assist Ltd v Secretary of State for the Environment, Food and Rural Affairs (No 2) TCC 19-May-2009
The mediator who had acted in attempting to resolve the dispute between the parties sought to have set aside a witness summons issued by the claimant who sought to have the mediated agreement set aside for economic duress.
Held: In this case . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 14 July 2022; Ref: scu.266910

Daejan Investments Ltd v The Park West Club Ltd. (Part 20 Buxton Associates: TCC 3 Nov 2003

Application to amend pleadings to substitute pleaded requirement to complete construction.

Judges:

David Wilcox J

Citations:

[2003] EWHC 2872 (TCC), [2004] BLR 223

Links:

Bailii

Jurisdiction:

England and Wales

Litigation Practice, Construction

Updated: 14 July 2022; Ref: scu.266718

Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another: TCC 19 Mar 2008

Citations:

[2008] EWHC 569 (TCC)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Cleveland Bridge UK Ltd v Multiplex Constructions (UK) Ltd TCC 31-Aug-2005
A third party television company sought access to the particulars of claim and other pleadings.
Held: HH Judge Wilcox said: ‘There can be no legitimate distinction drawn between decisions made in interlocutory proceedings and those at final . .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd TCC 5-Jun-2006
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another CA 20-Dec-2006
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No. 2) TCC 31-Jan-2007
. .
See Also – Multiplex Construction (Uk) Ltd v Honeywell Control Systems Ltd TCC 8-Feb-2007
Application for permission to appeal. Jackson J considered whether permission to appeal should have been requested at the hearing: ‘It seems to me that I have got to interpret the provisions of Rule 52.3 and the provisions of the Practice Direction . .
See Also – Multiplex Constructions (UK) Ltd v Honeywell Control Systems Ltd (No. 2) TCC 6-Mar-2007
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd (No 3) TCC 12-Mar-2007
. .
See Also – Cleveland Bridge UK Ltd and Another v Multiplex Constructions (UK) Ltd CA 27-Apr-2007
The court construed an agreement supplemental to a construction contract. . .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another CA 21-Dec-2007
. .
See Also – Multiplex Construction Ltd v Cleveland Bridge Ltd and Another CA 6-Feb-2008
. .
See Also – Multiplex Construction (Uk) Ltd v Cleveland Bridge UK Ltd and Another TCC 7-Feb-2008
. .

Cited by:

See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another TCC 29-Sep-2008
. .
See Also – Multiplex Constructions (UK) Ltd v Cleveland Bridge UK Ltd and Another (No 7) TCC 29-Sep-2008
Last stage of the Wembley stadium construction dispute. Jackson J, interpreting Carver said that it set out: ‘how the court ought to approach the matter in circumstances where: (a) one party has made an offer which was nearly but not quite . .
See Also – Cleveland Bridge UK Ltd and Another v Multiplex Constructions (UK) Ltd CA 19-Feb-2010
. .
See Also – Cleveland Bridge Uk Ltd and Another v Multiplex Constructions (UK) Ltd CA 31-Mar-2010
. .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 14 July 2022; Ref: scu.266687

Dadourian Group International and Another v Simms and others: ChD 7 Feb 2008

It was suggested that the use of documents revealed under court disclosure for a further purpose was a contempt of court, and that they were protected by legal professional privilege.
Held: For iniquity to be established ‘there has to be strong evidence of fraud’.

Judges:

Peter Smith J

Citations:

[2008] EWHC 186 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Dadourian Group International Inc and Others v Simms and Others CA 13-May-2004
Application for leave to appeal against worldwide asset freezing order. . .

Cited by:

Cited – X v Y Ltd (Practice and Procedure – Disclosure) EAT 9-Aug-2018
Iniquity surpasses legal advice privilege
PRACTICE AND PROCEDURE – Disclosure
PRACTICE AND PROCEDURE – Striking-out/dismissal
An Employment Judge struck out paragraphs of the Claimant’s claim as they depended on an email in respect of which legal advice privilege was claimed. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 July 2022; Ref: scu.264132

Regina v Medicines Control Agency ex parte Smith and Nephew (Primecrown Ltd intervening): ChD 1999

The court considered liability to third partries under a cross-undertaking given to the court: ‘Whether the recoverable damage is that which is foreseeable by the plaintiff or that which is directly caused by the injunction is not in point. None of the differing views expressed in the cases go so far as to say that the injunctee can claim for damage not suffered by him. Nor do the very words of the undertaking (which is the foundation of the jurisdiction) suggest that he can recover more than that which he has suffered, whether that damage is foreseeable by the injunctor or not. Thus while I have sympathy with Mr Howe’s ‘flexible approach’ I do not think it can go so far as to require the ‘wrongful injunctor’ to pay for damage not suffered by the injunctee at all.
I think this consideration also disposes of Mr Howe’s Linden Gardens point. In that case the House of Lords held that damages for breach of a contract between a developer and a builder should include the damage suffered by the purchaser from the developer. The parties could be treated as having entered into the contract on the basis that the developer would be entitled to enforce its contractual rights on behalf of purchaser who suffered the actual damage. The case depended on the parties having full knowledge that the developer was going to pass the property on to the purchaser, so the builder knew exactly who would be suffered if his work was inadequate. Mr Howe suggested that in this case there is a parallel in that SandN expected to have to pay for trading losses. So they did, but they did not undertake to pay for trading losses, they only undertook to pay for Primecrown’s losses. The analogy with Linden Gardens breaks down.’

Judges:

Jacob J

Citations:

[1999] RPC 705.

Jurisdiction:

England and Wales

Citing:

Cited – Linden Gardens Trust Ltd v Lenesta Sludge Disposals Ltd and Others; St. Martins Property Corporation Ltd v Sir Robert McAlpine HL 8-Dec-1993
A contractor had done defective work in breach of a building contract with the developer but the loss was suffered by a third party who had by then purchased the development. The developer recovered the loss suffered by the purchaser.
Held: . .

Cited by:

Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Licensing

Updated: 13 July 2022; Ref: scu.231218

Harlow and Jones v Panex (International) Ltd: ChD 1967

The sellers claimed under a sale contract against buyers who had refused to accept goods. By reason of the buyer’s non-acceptance of the goods, the sellers had incurred storage charges to their own suppliers with whom they had entered into an agreement which effectively made recovery of the storage charges contingent upon recovery of the storage charges from the buyers.
Rosklii J said: ‘Next there are the storage charges . . [Counsel] correctly summarised the final position by saying that the bargain was that the Russian sellers would only claim against the plaintiffs if the plaintiffs could recover those charges from the defendants in this action. [Counsel] argued that an arrangement of that kind barred the plaintiffs recovering in this action. For my part I am unable to see why. The plaintiffs have – and this was not contested – apart from any agreement with the Russian sellers, a perfectly good claim for these storage charges. Why the plaintiffs should not make an arrangement for their own sellers, ‘we will claim these and hand the proceeds over to you if we recover provided you let us off if we do not’, I am unable to see. Nor do I see why the existence of such an arrangement should afford the defendants a defence which they would not otherwise possess. It seems to me an eminently sensible commercial arrangement . . ‘

Judges:

Roskill J

Citations:

[1967] 2 Lloyd’s Rep 509

Jurisdiction:

England and Wales

Cited by:

Cited – Giles v Thompson, Devlin v Baslington (Conjoined Appeals) HL 1-Jun-1993
Car hire companies who pursued actions in motorists’ names to recover the costs of hiring a replacement vehicle after an accident, from negligent drivers, were not acting in a champertous and unlawful manner. Lord Mustill said: ‘there exists in . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Contract, Damages

Updated: 13 July 2022; Ref: scu.272902

HM Revenue and Customs v Weight Watchers (UK) Ltd: ChD 21 Jan 2008

The court was asked whether the weight-watchers program which included attendance at a course and a supply of supporting materials was one single standard-rated supply or separate supplies of zero-rated printed materials and standard-rated support services.
Held: The court asked whether if the tribunal was mistaken as to the law the court should overrule the decision and said that as a specialist tribunal the court should be circumspect before making the decision itself. That degree of caution was not as high as the Edwards v Bairstow question.
The issue was whether the materials are so closely linked to the services provided at the Meetings that they form objectively a single indivisible supply which it would be artificial to split. There were mixed supplies both at the first meeting and thereafter. The Tribunal in the present case had applied the correct legal test to the primary facts found by them. The appeal was dismissed as regards the first meeting’s materials. As to later materials it would be artificial to split them from the meetings at which they were used, and the tax payers appeal succeeded in this respect.

Judges:

Morgan J

Citations:

[2008] EWHC 53 (Ch), [2008] BVC 254, [2008] BTC 5129, [2008] STC 301, [2008] STI 180

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – College of Estate Management v Customs and Excise HL 20-Oct-2005
The college supplied educational services by distance learning. The commissioner sought to argue that printe daterials supplied with the course were ancillary and did not have the same exemption form VAT.
Held: The supplies did benefit from . .
Cited – Faaborg-Gelting Linien v Finanzamt Flensburg ECJ 2-May-1996
A non-takeaway restaurant is a supply of services, and a ferry supply was made from its place of business. The supply of prepared food and drink at a restaurant resulted from a whole series of services (including the preparation and service of the . .
Cited – Levob Verzekeringen and Ov Bank v Staatssecretaris van Financien ECJ 27-Oct-2005
ECJ Sixth VAT Directive – Articles 2, 5, 6 and 9 – Transfer of software recorded on a carrier – Subsequent customisation of the software to the purchaser-?s specific requirements – Single taxable supply – Supply . .
Cited – Card Protection Plan Ltd v Commissioners of Customs and Excise ECJ 25-Feb-1999
A company procuring insurance purchases for credit card protection was as exempt from VAT as was the insurer. A provision which restricted the ability to claim such exemption to those registered as insurers under national was invalid under European . .
Cited – Beynon and Partners v Customs and Excise HL 25-Nov-2004
The House asked whether the personal administration of a drug such as a vaccine by an NHS doctor to a patient is a taxable supply for the purposes of value added tax. The provision of medical care in the exercise of the medical and paramedical . .
Cited – Edwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .
Cited – Cooke v Secretary of State for Social Security CA 25-Apr-2001
Although production of a new medical report, or of a new medical opinion, could evidence a relevant change of circumstances, to support the claim that the threshold had been reached so as to allow a review of a decision to grant benefits, it did not . .
Cited – Napp Pharmaceutical Holdings Ltd v Director General of Fair Trading CA 8-May-2002
The applicant sought leave to appeal against a decision of the Competition Commission Appeals Tribunal.
Held: Since the decision of the tribunal did not involve questions of law, it fell exactly within the Cooke case, and the court should be . .
Cited – Secretary of State for the Home Department v AH (Sudan) and others HL 14-Nov-2007
The three respondents had fled persecution in Darfur. They sought asylum which was refused, and they now appealed. It was argued that whilst they had a well founded fear of persecution in Dhafur, that would not apply if they returned to Khartoum. . .
Cited – Able (UK) Ltd v Revenue and Customs CA 22-Nov-2007
The taxpayer company had received compensation for having been excluded from its business premises for a period until a compulsory purchase process failed. It treated the receipt as capital. The revenue said it was income.
Held: The court . .
Lists of cited by and citing cases may be incomplete.

VAT, Litigation Practice

Updated: 12 July 2022; Ref: scu.263803

Warren v The Random House Group Ltd: QBD 5 Dec 2007

The court had refused an earlier application by the defendant to amend its defence, after its offer of amends had been accepted, so as to allow it to withdraw that offer and plead justification. The defendant now sought an amendment to allow substantial revisions to certain particulars, which in turn the claimant sought to strike out.

Judges:

Gray J

Citations:

[2007] EWHC 2860 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Warren v The Random House Group Ltd (No. 1) QBD 5-Dec-2007
The defendant applied to amend its defence to the defamation claim. The effect of the proposed amendment had been to withdraw the defence based on its offer of amends and to substitute for it a plea of justification in respect of one of three . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 12 July 2022; Ref: scu.262121

Warren v The Random House Group Ltd (No. 1): QBD 5 Dec 2007

The defendant applied to amend its defence to the defamation claim. The effect of the proposed amendment had been to withdraw the defence based on its offer of amends and to substitute for it a plea of justification in respect of one of three passages complained of by the claimant, Mr Warren, in its book about the career of the boxer Ricky Hatton.
Held: Refused

Judges:

Gray J

Citations:

[2007] EWHC 2856 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Warren v The Random House Group Ltd QBD 5-Dec-2007
The court had refused an earlier application by the defendant to amend its defence, after its offer of amends had been accepted, so as to allow it to withdraw that offer and plead justification. The defendant now sought an amendment to allow . .
See Also – Warren v The Random House Group Ltd QBD 20-Dec-2007
The parties had settled a defamation action by means of an offer of amends. The defendant changed his mind about the offer, and the court now considered whether the accepted offer of amends was binding as a contract.
Held: It was a contract, . .
See Also – Warren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 12 July 2022; Ref: scu.262182

Prince Radu of Hohenzollern v Houston and Another: QBD 12 Oct 2007

Judges:

Eady J

Citations:

[2007] EWHC 2328 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Radu, Prince of Hohenzollern v Houston and Another CA 27-Jul-2006
. .
See Also – Prince Radu of Hohenzollern v Houston and Another QBD 7-Mar-2006
The claimant resided in Romania, and sought damages for libel. The magazine had obtained an order for security for costs. An offer had been made to cover the sum ordered, and no stifling could now happen.
Held: Any order for security costs in . .

Cited by:

See Also – Prince Radu of Hohenzollern v Houston and Another QBD 23-Nov-2007
. .
See Also – Prince Radu of Hohenzollern v Houston and Another CA 15-Jul-2008
The defendant appealed from a decision that the occasion of publication was not privileged. He sought Reynolds protection.
Held: Appeal dismissed. . .
See Also – Prince Radu of Hohenzollern v Houston and Another (No 4) QBD 4-Mar-2009
Orders were sought to strike out part of the defendants defence of justification to an allegation of defamation.
Held: Where there remains the possibility of a jury trial, it becomes especially important to identify the issues the jurors are . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice

Updated: 12 July 2022; Ref: scu.261571

Taylor Walton (A Firm) v Laing: CA 15 Nov 2007

The appellants appealed against a refusal to strike out as an abuse of process the respondent’s claim against them for professional negligence in the drafting of development agreements.
Buxton LJ considered the nature of the enquiry on such an application: ‘The court . . has to consider, by an intense focus on the facts of the particular case, whether in broad terms the proceedings that it is sought to strike out can be characterised as falling under one or other, or both, of the broad rubrics of unfairness or the bringing of the administration of justice into disrepute. Attempts to draw narrower rules applicable to particular categories of case (in the present instance, negligence claims against solicitors when an original action has been lost) are not likely to be helpful.
As to the proper approach of this court, TW sought to draw from Lord Diplock’s disavowal of the word discretion the conclusion that, since the issue was not one for the discretion of the judge, in any appeal this court should start again, and simply decide whether the trial judge had been right or wrong. I do not think that the matter is so straightforward. In the passage relied, on Lord Diplock was indicating that to strike out a case brought without infraction of the rules of procedure was a serious step, not to be taken unless the circumstances were sufficiently extreme as to demonstrate that the judge had a duty to act. That is a much more stringent test than simply to say that the circumstances must fall within a category that entitles the judge to decide for himself whether or not to take action. It is therefore correct that this court, in reviewing the judge’s decision, is not limited to considering whether the facts fell within a wide ambit of discretion. At the same time, however, the issue although not one of discretion is one of judgment in determining whether the duty referred to by Lord Diplock arises. In reviewing such an exercise of judgment this court will always give considerable weight to the opinion of the judge, and particularly so when that opinion has been formed by a commercial judge of many years’ experience.’

Judges:

Buxton LJ, Laws LJ, Moses LJ

Citations:

[2007] EWCA Civ 1146, [2008] PNLR 11

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hunter v Chief Constable of the West Midlands Police HL 19-Nov-1981
No collateral attack on Jury findigs.
An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial. The plaintiffs had imprisoned having spent many . .
Appeal From – Laing v Taylor Walton (A Firm) QBD 20-Feb-2007
The claimant sought to pursue an action for professional negligence against his solicitors. They said that the action was an abuse being an attempted relitigation of matters already settled when a judge had decided that the defendants had not owed a . .

Cited by:

Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Explained – Kotonou v National Westminster Bank Plc CA 30-Oct-2015
Appeal against summary dismissal of claim against the bank based on Henderson v Henderson.
Gloster LJ, commented on Buxton LJ’s observations in the Taylor Walton case: ‘Thus, in my view, what is required in the present case is ‘an intense focus . .
Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA 13-Jan-2017
The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 July 2022; Ref: scu.261316

Arrow Generics Ltd and Another v Merck and Co, Inc: PatC 31 Jul 2007

The court considered it arguable that it had power properly to grant declarations that a product was old or obvious in patent law terms at a particular date.

Judges:

Kitchin J

Citations:

[2007] EWHC 1900 (Pat), [2007] FSR 39

Links:

Bailii

Jurisdiction:

England and Wales

Intellectual Property, Litigation Practice

Updated: 11 July 2022; Ref: scu.258670

Demirel v TMSF: CA 26 Jul 2007

Judges:

Sir Anthony Clarke MR

Citations:

[2007] EWCA Civ 799, [2007] 1 WLR 2508

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Fonu v Demirel and Another ChD 21-Dec-2006
. .

Cited by:

Mentioned – Masri v Consolidated Contractors International Co Sal and Others HL 30-Jul-2009
The claimant sought to enforce a judgment debt against a foreign resident company, and for this purpose to examine or have examined a director who lived abroad. The defendant said that the rules gave no such power and they did, the power was outside . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 July 2022; Ref: scu.258455

Haydon-Baillie and others v Bank Julius Baer and Co Ltd and others: ChD 5 Jul 2007

Judges:

Morgan J

Citations:

[2007] EWHC 1609 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – Haydon-Baillie and others v Bank Julius Baer and Co Ltd and others ChD 12-Nov-2007
Post judgment matters . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 July 2022; Ref: scu.254487

Conticorp Sa and others v The Central Bank of Ecuador and others: PC 20 Jun 2007

(The Bahamas )

Citations:

[2007] UKPC 40

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 July 2022; Ref: scu.253512

Framlington Group Ltd and Another v Barnetson: CA 24 May 2007

The defendant had sought an order requiring the claimant to remove from a witness statement elements referring to without prejudice discussions between the parties before litigation began.
Held: The defendant’s appeal succeeded. The test for proximity of the negotiations to the litigation was not one of time, but of the closeness of the connection between the negotiations and the subject of the proceedings.

Judges:

Auld LJ, Longmore LJ, Toulson LJ

Citations:

Times 11-Jun-2007, [2007] EWCA Civ 502

Links:

Bailii

Statutes:

Civil Procedure Rules 36.10

Jurisdiction:

England and Wales

Citing:

Cited – Rush and Tompkins Ltd v Greater London Council and Another HL 1988
Use of ‘Without Prejudice Save as to Costs”
A sub-contractor sought payment from the appellants under a construction contract for additional expenses incurred through disruption and delay. The appellants said they were liable to pay the costs, and were entitled to re-imbursement from the . .
Cited – Prudential Assurance Co Ltd v Prudential Insurance Co of America ChD 20-Dec-2002
The parties had undertaken negotiations on a ‘without prejudice’ basis. One now sought freedom to rely upon the other’s statements.
Held: There was a need to balance the right to freedom of expression, against the need to protect the rights of . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Bradford and Bingley Plc v Rashid HL 12-Jul-2006
Disapplication of Without Prejudice Rules
The House was asked whether a letter sent during without prejudice negotiations which acknowledged a debt was admissible to restart the limitation period. An advice centre, acting for the borrower had written, in answer to a claim by the lender for . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 July 2022; Ref: scu.253260

Carnegie v Drury; Drury v British Broadcasting Corporation: CA 23 May 2007

The claimant had extended the time for service of his claim for defamation.
Held: The author’s appeal succeeded. To extend time for service, the claimant had to have shown that he had done what he could to take steps to serve the claim within the four months allowed. In this case though the first defendant had not assisted, it was under no duty to do so, or to accept service on behalf of an employee, and steps taken by the claimant after the period had expired were not relevant.

Judges:

Dyson LJ, Smith LJ

Citations:

[2007] EWCA Civ 497, Times 11-Jun-2007, [2007] EMLR 637

Links:

Bailii

Statutes:

Civil Procedure Rule 7.6(3)(b)

Jurisdiction:

England and Wales

Defamation, Litigation Practice

Updated: 11 July 2022; Ref: scu.252505

JD Wetherspoon Plc v Van De Berg and Co Ltd and others: ChD 4 May 2007

Lewison J summarised the approach to be taken by courts hearing an application by defendants to strike out claims: ‘Both the application to strike out and the application for summary judgment are summary applications. The application for summary judgment is made by defendants against a claimant, which is less usual than an application by a claimant for judgment against a defendant. The authorities deal mainly with applications by claimants. The correct approach on applications by defendants is, in my judgment, as follows:
i) The court must consider whether the claimant has a ‘realistic’ as opposed to a ‘fanciful’ prospect of success: Swain v Hillman [2001] 1 All ER 91;
ii) A ‘realistic’ claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED and F Man Liquid Products v Patel [2003] EWCA Civ 472 at [8];
iii) In reaching its conclusion the court must not conduct a ‘mini-trial’: Swain v Hillman;
iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED and F Man Liquid Products v Patel at [10];
v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5) [2001] EWCA Civ 550;
vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd [2007] FSR 3;
vii) The court should be especially cautious of striking out a claim in an area of developing jurisprudence, because in such areas decisions on novel points of law should be decided on real rather than assumed facts.’
In discussing the phrase ‘for some time’ Lewison J said: ‘The other ingredient needed to bring section 32(2) into play is that the breach is committed in circumstances where it is unlikely to be discovered ‘for some time’. Although the quoted phrase is imprecise, it seems to me that the implicit contrast that it is setting up is one between a breach of duty that would be immediately discovered (eg the infliction of a physical injury) and one that would not.’

Judges:

Lewison J

Citations:

[2007] EWHC 1044 (Ch), [2007] PNLR 28

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See Also – JD Wetherspoon Plc v Van De Berg and Co Ltd and Others ChD 31-Mar-2009
. .
Cited – Meakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .
Cited – Burnden Holdings (UK) Ltd v Fielding and Another CA 17-Jun-2016
The company, now in liquidation sought to claim for the alledged misapplication by former directors of its funds in 2007. It now appealed against a summary rejection of its claim as time barred.
Held: The appeal succeeded. Section 21(1)(b) . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 11 July 2022; Ref: scu.252310

Madurasinghe v Penguin Electronics (A Firm): CA 13 Jan 1993

A taxation review is a rehearing by the circuit judge, exercising his own discretion. It is not the exercise of an appellate jurisdiction.

Citations:

Gazette 13-Jan-1993, [1993] 1 WLR 989

Statutes:

County Court Rules 1981 38(24)(6), Solicitors Act 1974 74

Jurisdiction:

England and Wales

Costs, Legal Professions, Litigation Practice

Updated: 10 July 2022; Ref: scu.83292