Stay of execution pending an appeal to the House of Lords was granted where the case was arguable and the defendant would be ruined if called upon to pay the full amount. Older cases on such matters are of little use.
Otton LJ
Gazette 25-Nov-1992, [1992] 4 All ER 887
England and Wales
Updated: 15 May 2022; Ref: scu.83080
(Scotland) Appeals from Sheriffs court to the House of Lords are only on points of law not on questions of fact.
Times 03-Nov-1995
Scotland
Updated: 15 May 2022; Ref: scu.83453
The service of a writ was effective even though it was on a junior employee, provided he was in apparent charge of the office. Sovereign immunity granted to corporation only if acts are governmental acts.
Times 25-Jul-1995, Gazette 13-Sep-1995, Independent 15-Aug-1995
England and Wales
Updated: 15 May 2022; Ref: scu.82860
An English injunction is to be enforced in Scotland despite the different law.
Times 16-Feb-1994
Civil Jurisdiction and Judgments Act 1982 27(1)(c)
Updated: 15 May 2022; Ref: scu.81803
The powers given to a court to manage cases could allow the court to override the judgment of the parties in agreeing directions by consent where this was plainly good management to do so. Here the judge decided to transfer a between the parties to the High Court to be heard by the same court as dealt with other issues between the same parties.
Times 10-Apr-2000
England and Wales
Updated: 15 May 2022; Ref: scu.81841
Affidavits may properly put forward matters not of own knowledge.
Times 06-May-1994, Gazette 29-Jun-1994
Rules of the Supreme Court 41 5-2
Updated: 15 May 2022; Ref: scu.79942
Expiration of period for Application for extension of service period; need not mention expiry of limitation.
Gazette 08-Sep-1993
Updated: 15 May 2022; Ref: scu.79853
Reading document in court does not destroy privilege where party has seen in who.
Times 16-Aug-1994
England and Wales
Updated: 15 May 2022; Ref: scu.79880
An agreement between a lawyer and his client not to charge the client if no costs were awarded in the action, meant that the party had no costs to recover.
Times 05-Dec-1994
Updated: 15 May 2022; Ref: scu.79401
The plaintiff, a bankrupt, pursued libel proceedings. He was being financed by his mother who had limited resources. She undertook to pay any order for costs, but the Master ordered a stay under the inherent jurisdiction of the court to prevent abuse of process unless the plaintiff provided security. The plaintiff appealed and the mother withdrew her undertaking. The judge reversed the order, holding that, even if there were jurisdiction, he would have exercised it in the plaintiff’s favour. The Court disposed of the case shortly on the facts on the basis that the mother’s position was one long since recognised as a lawful justification to maintain, sharing as she did a common interest with the plaintiff on the grounds of kinship. Security for costs orders are strictly limited to circumstances within rules, and no order for security for costs was appropriate, despite support for the action by a relative.
Independent 09-Nov-1995, Times 03-Nov-1995, [1996] 1 WLR 753
Rules of the Supreme Court Order 23
England and Wales
Cited – McFarlane v E E Caledonia Ltd QBD 8-Dec-1994
The court can order a champertous non-party to pay a successful defendant’s costs of defending the claim.
A non-party unlawfully supporting an action was ordered to pay the costs of the defendant.
Held: It may not be necessary to every . .
Cited – Abraham and Another v Thompson and Others ChD 12-May-1997
The court may issue a stay of proceedings pending disclosure of the source of funding of an action, without there needing to be any suggestion of champerty or other illegality. The first plaintiff was ordered to disclose to the 5th and 6th . .
Cited – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.79438
No leave was required to withdraw an appeal by way of case stated to the divisional court.
Times 15-Jul-1996
Updated: 15 May 2022; Ref: scu.79274
The court provides a disk for free with index of unreported cases in the divisions (to lawyers only).
Times 30-Jun-1997
Updated: 15 May 2022; Ref: scu.79291
3rd edition of Guide to Commercial Court Practice issued – lists main points of practice.
Times 15-Aug-1994, Independent 12-Aug-1994
Updated: 15 May 2022; Ref: scu.79293
Advisers to ensure litigants consider ADR in low value commercial cases.
Ind Summary 10-Jan-1994
Updated: 15 May 2022; Ref: scu.79294
Under the new litigation regime, the objective of serving justice required a fundamentally different approach to applications for extension of time for service of a notice of appeal. Under the earlier system inadvertence by a legal representative might well be fatal to such an application, but not so now.
Times 07-Mar-2000
Updated: 15 May 2022; Ref: scu.79325
An Anton Piller order was wrongfully made where it was used in order to get information to found a later prosecution. The privilege against self incrimination is available under Section 14 of the 1968 Act in contempt proceedings despite the fact that they are not criminal proceedings. Rimer J said: ‘the privilege remains intact and the basic principle still is that an Anton Piller [disclosure] order should not be made which includes provisions foreseeably likely to require the defendant to incriminate himself.’
Rimer J
Times 11-Oct-1996, [1998] Ch 109, [1996] FSR 819
Cited – Tate Access Floors Inc v Boswell 1991
Senior employees were suspected of misappropriating the company’s funds.
Held: The authorities did not establish the wide proposition that where a defendant agrees to act as a fiduciary, he impliedly contracts not to raise the claim to the . .
Cited – The Coca-Cola Company and Another v Cengiz Aytacli and others ChD 30-Jan-2003
The claimant having succeeded in an action against the defendants, now sought an order for their committal for contempt, accusing them of having given false evidence, and of having failed to comply with court orders made. The defendant asserted a . .
Cited – CTB v News Group Newspapers Ltd and Thomas (2) QBD 23-May-2011
The claimant had obtained a privacy injunction, but the name of the claimant had nevertheless been widey distributed on the Internet. The defendant newspaper now sought to vary the terms. The second defendant did not oppose the injunction. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.79251
All claims in this litigation are to be transferred to the High Court Central Office for management by Master Miller.
Gazette 26-Feb-1992
Updated: 15 May 2022; Ref: scu.79171
An arbitration claim is said to be commenced when the claim is filed, and not when served. Because of this the respondents to an appeal in such proceedings were to be allowed to see the papers filed in support of an application for leave to appeal, as persons who were an interested party in such an application.
ComC Circumstances in which there may be inspection of arbitration claim forms filed in the Commercial Court Registry which have not yet been served on the respondent. Application of CPR 5-4(1) and (2).
Colman J
Times 07-Feb-2000, [2000] 1 WLR 558, [2000] 2 All ER (Comm) 189
Updated: 15 May 2022; Ref: scu.79219
A third party wanting affidavits to be sworn in director disqualification proceedings must apply on notice.
Times 25-Apr-1997
England and Wales
Updated: 15 May 2022; Ref: scu.78605
A former executive director brought a claim for unfair dismissal in the Employment Tribunal. Chorion brought proceedings in the Chancery Division alleging wrongful acts committed by him while he was a senior executive.
Held: There was an overlap in the issues to be tried in both sets of proceedings, and it was wrong to have two tribunals investigating what are essentially the same facts. In case of an overlap between issues before an Industrial Tribunal and the High Court, the Tribunal matter should be stayed pending the outcome of the other case. Laddie J reached his conclusion that such an Order should be granted because: ‘it would be wrong for essentially the same serious issues to be run in two separate tribunals . . I have come to the conclusion, notwithstanding the powerful arguments advanced by Mr Collins, it would be wrong for essentially the same issues to be run in two separate tribunals. It seems to me that in view of the allegations of dishonesty which are to be found permeating the whole of this dispute it is right and proper that the issues should be determined in one set of proceedings. I am of the view that the preferable forum is the High Court.’
Laddie J
Times 07-Apr-1999, Gazette 26-May-1999, CH-1999 00233
Cited – Clyde and Co Llp and Another v Winkelhof QBD 22-Mar-2011
The claimant firm of solicitors sought an order requiring the defendant to amend her employment tribunal claim so as to accord with the partnership agreement to which she was party, and to submit to arbitration. The defendant said that statutory . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.79110
The fact that evidence had been obtained under compulsion was not sufficient reason to prevent its disclosure for other civil matters if the Rule’s requirements were met and it was necessary to achieve fairness or reduction in costs.
Times 13-Nov-1998, Gazette 25-Nov-1998
Rules of the Supreme Court Order 24 R 13
England and Wales
Cited – Secretary of State for Business Enterprise and Regulatory Reform v Sullman and Another ChD 19-Dec-2008
An application was made to disqualify as a company director a former director of Claims Direct Limited. He had been accused of several actions which might justify a disqualification.
Held: The court found misconduct but delayed a decision on . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.78606
A transcript of a Criminal Judge’s summing up is admissible in civil proceedings as a court record of that trial.
Ind Summary 05-Jun-1995, Times 12-May-1995
Updated: 15 May 2022; Ref: scu.78581
The claimants had served proceedings on an agent who did not have authority to accept such service. They sought, out of time, leave to re-serve correctly, and also to add an additional cause of action which whilst now outside the limitation period arose out of the same facts.
Held: The first application was refused. The court could only so act if preconditions were met, particularly here that the claimant had acted promptly. He had not so acted, and the court had no discretion to allow the re-service. The application to amend was granted.
Gazette 09-Mar-2000, Times 15-Mar-2000
Updated: 15 May 2022; Ref: scu.77778
A plaintiff alleging negligence against a solicitor who had subsequently disappeared, could have substituted service on his professional insurers despite the fact that it was unlikely that that would bring the writ to his attention.
Times 05-Feb-1998
Appeal from – Abbey National Plc v Frost (Stephen Leonard) Solicitors Indemnity Fund Intervening CA 19-Mar-1998
The Court may not allow substituted service on a fund indemnifying defendant where the chosen method of service will not bring the proceedings to the attention of actual proposed defendant. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.77600
Foreign procedural law with regard to time limits for the service of writs does not override English time limits.
Times 03-Dec-1993
Updated: 15 May 2022; Ref: scu.77608
The court may issue a stay of proceedings pending disclosure of the source of funding of an action, without there needing to be any suggestion of champerty or other illegality. The first plaintiff was ordered to disclose to the 5th and 6th defendants on affidavit whether any, and if so what, third party or parties had provided all or any substantial part or parts of the money used to fund this action as regards costs incurred by him from the date when they were added as parties.
Mr. Justice Lloyd
Gazette 11-Jun-1997, Times 19-Aug-1997, Times 15-May-1997
Appealed to – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Cited – Broxton v McClelland 6-Nov-1992
. .
Cited – Condliffe v Hislop and Another CA 3-Nov-1995
The plaintiff, a bankrupt, pursued libel proceedings. He was being financed by his mother who had limited resources. She undertook to pay any order for costs, but the Master ordered a stay under the inherent jurisdiction of the court to prevent . .
Cited – Grovewood Holding Plc v James Capel and Co Ltd ChD 15-Aug-1994
A champertous arrangement is unlawful. The action was time barred. It was not an assignment of the cause of action. Such a claim by a liquidator will not be permitted to proceed. The court granted a stay in an action being funded pursuant to a . .
Cited – Murphy, and Murphy v Young and Co’s Brewery Plc, Sun Alliance and London Insurance Plc CA 20-Nov-1996
When an unsuccessful party has had its legal costs funded under legal expenses insurance, should the insurer be held liable to pay the successful party’s costs? The insurer had not instigated the litigation, nor controlled it, and could not be . .
Cited – McFarlane v E E Caledonia Ltd QBD 8-Dec-1994
The court can order a champertous non-party to pay a successful defendant’s costs of defending the claim.
A non-party unlawfully supporting an action was ordered to pay the costs of the defendant.
Held: It may not be necessary to every . .
Appeal from – Abraham and Another v Thompson and Another CA 24-Jul-1997
The plaintiffs appealed an order that they should disclose who if any had funded their case. The case concerned failed business ventures in Portugal. . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.77613
Unaltered words in an Act are to be construed as meaning what they did before the others were amended. Parliament in deleting particular words from the section in question was to exclude particular articles from liability to tax. The subsequent general words could, looked at in isolation, have prevented that intent being achieved. Hence, in order to give effect to the clear intention of Parliament, the general words had to continue to be construed in the restrictive fashion appropriate when the particular words, subsequently repealed, were in the Act.
Brett LJ said: ‘The schedule is as much a part of the statute, and is as much an enactment as any other part’.
Brett LJ, Bramwell LJ
(1878) 3 Ex D 214
England and Wales
Cited – Boss Holdings Ltd v Grosvenor West End Properties and others HL 30-Jan-2008
The tenant sought to enfranchise the property under the 1967 Act. The freeholders replied that it was not a ‘house’ within the Act at the time of the notice. It had been built in the eighteenth century as a house, but the lower floors had been . .
Lists of cited by and citing cases may be incomplete.
Updated: 15 May 2022; Ref: scu.264096
(1878) LT 8 ChD 148
Cited – Killick v Pountney and Another; Re Killick Deceased ChD 31-Mar-1999
Mr Killick’s will was challenged on the basis that it had been executed under undue influence, and that he had suffered dementia. The deceased’s nephew alleged that the beneficiaries had used their position to influence him to make the will in their . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.259991
A party wishing to raise a matter concerning the conduct of the opposing party, either before or during litigation, was under a duty to raise it before the judge making the costs order, was too broadly stated.
[2004] EWHC 1162 (QB)
England and Wales
Cited – Business Environment Bow Lane Ltd v Deanwater Estates Ltd ChD 31-Jul-2009
The court was asked ‘Where a claimant has picked up one or more costs orders in its favour on the way to a trial, but fails very badly at the trial (for example due to exaggeration), can the costs judge assess those costs at nil on the footing that . .
See Also – Aaron v Shelton SCCO 24-May-2004
. .
See Also – Aaron v Shelton SCCO 24-May-2004
. .
Cited – Northstar Systems Ltd and others v Fielding and others; Ultraframe (UK) Ltd and Others v Fielding and Others (No 2) CA 6-Dec-2006
The parties had disputed ownership of intellectual property rights. The court had found certain parties dishonest. The judge had found the successful defendants honest and adjusted the costs order in their favour. The claimants appealed.
Held: . .
Lists of cited by and citing cases may be incomplete.
Updated: 14 May 2022; Ref: scu.247886
(Supreme Court of Canada) The court sought to define the distinctive characteristics of a quasi-judicial act: ‘ (1) Is there anything in the language in which the function is conferred or in the general context in which it is exercised which suggests that a hearing is contemplated before a decision is reached? (2) Does the decision or order directly or indirectly affect the rights and obligations persons? (3) Is the adversary process involved? (4) Is there an obligation to apply substantive rules to many individual cases rather then, for example, the obligation to implement social and economic policy in a broad sense? These are all factors to be weighed and evaluated, no one of which is necessarily determinative. . . In more general terms, one must have regard to the subject matter of the power, the nature of the issue to be decided, and the importance of the determination upon those . . affected thereby. . . The more important the issue and the more serious the sanctions, the stronger the claim that the power be subject in its exercise to judicial or quasi-judicial process. The existence of something in the nature of a lis inter partes and the presence of procedures, functions and happenings approximating [to] those of a court add weight to (3). But, again, the absence of procedural rules analogous to those of courts will not be fatal to the presence of a duty to act judicially’.
Dickson J
[1979] 1 SCR 495
Canada
Cited – Heath v Commissioner of Police for the Metropolis CA 20-Jul-2004
The female civilian officer alleged sex discrimination against her by a police officer. Her complaint was heard at an internal disciplinary. She alleged sexual harrassment, and was further humiliated by the all male board’s treatment of her . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.199769
The court discussed the literal rule for the interpretation of statutes: ‘If the precise words used are plain and unambiguous, in our judgment we are bound to construe them in their ordinary sense, even though it does lead to an absurdity or manifest injustice’
(1851) Jervis CJ
England and Wales
Updated: 13 May 2022; Ref: scu.198834
Interlocutory relief on the basis of the Norwich Pharmacal principle could be ordered, for example, on motion.
[1975] 1 All ER 38, [1974] 1 WLR 1445
Followed – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.193359
Lord Denning, MR said: ‘So I would hold that a Mareva injunction can be granted against a man even though he is based in this country if the circumstances are such that there is a danger of his absconding, or a danger of the assets being removed out of the jurisdiction or disposed of within the jurisdiction, or otherwise dealt with so that there is a danger that the plaintiff, if he gets judgment, will not be able to get it satisfied.’
Lord Denning MR
[1980] CLY 2153, [1980] 1 WLR 1268, [1980] 3 All ER 409, [1980] 2 Lloyds Rep 465
England and Wales
Applied – Z Ltd v A-Z and AA-LL CA 1982
The court gave directions on how banks and other third parties were to respond to Mareva injunctions. The plaintiff had obtained orders against companies with bank accounts in England. The action was settled, but the banks sougfht clarification.
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .
Lists of cited by and citing cases may be incomplete.
Updated: 13 May 2022; Ref: scu.192615
The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the compromised action. Lord Parker CJ said: ‘In considering whether the proceedings are vexatious one is entitled to, and must look at, the whole history of the matter, and it is not determined by whether the pleading discloses a cause of action. Indeed, that is the principle applied under the rules of court when application is made to strike out a pleading. Though the pleading may be in order, the court in its inherent jurisdiction, is entitled to look at affidavits as to the history of the matter, and if, in the light of that history the action is vexatious, the pleading can be struck out and the action dismissed.’
Lord Parker CJ
[1959] 1 WLR 622, [1960] 1 All ER 183
England and Wales
Appeal from – Attorney-General v Vernazza QBD 1959
During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court’s power to restrain vexatious litigants from commencing proceedings a power to restrain them from . .
Appealed to – Attorney General v Vernazza HL 1960
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order . .
Appealed to – Attorney-General v Vernazza QBD 1959
During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court’s power to restrain vexatious litigants from commencing proceedings a power to restrain them from . .
Appeal from – Attorney General v Vernazza HL 1960
Vernazza was a vexatious litigant. The Attorney-General obtained an order pursuant to an Act which gave the court power to prohibit such a litigant instituting proceedings without leave. Vernazza appealed. Between the making of the original order . .
Cited – HM Attorney-General v Ian Richard Flack Admn 29-Nov-2000
A civil proceedings order was sought against the respondent. The respondent had commenced many actions against a particular company, which it was claimed were vindictive in nature.
Held: Though the earliest proceedings had been vexatious it . .
Cited – HM Attorney General v Foden Admn 7-Apr-2005
Application for Civil Proceedings Order.
Held: ‘This defendant has become a compulsive litigant who has lost touch with reality. Her remorseless pursuit of litigation is wholly without merit, is clearly vexatious and has perpetrated a waste of . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.190155
During the pendency of an appeal against an order restraining a vexatious litigant from commencing proceedings, an Act was passed adding to the court’s power to restrain vexatious litigants from commencing proceedings a power to restrain them from pursuing existing proceedings. The Act was held to be procedural on the basis that it did not deprive the litigant of a right to bring proper proceedings and even if it had been regarded as substantive. In deciding whether any given proceedings are vexatious the court is entitled to look at the whole history of the matter and is not confined to such questions as whether an individual pleading discloses a cause of action. The effect of the new Act was retrospective since to hold otherwise would only lead to renewed proceedings.
Lord Denning
[1959] 2 All ER 200
England and Wales
Appealed to – Attorney-General v Vernazza, In Re Vernazza CA 1959
The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the . .
Appeal from – Attorney-General v Vernazza, In Re Vernazza CA 1959
The respondent to an application to prevent him issuing proceedings without the court’s consent, had brought actions claiming in one form or another that a consent judgment ought to be set aside and that he was still owed the sum claimed in the . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.190156
The Court of Appeal should only interfere with a judge’s decision to limit cross-examination if the decision is outside an acceptable range of decisions at which a judge can legitimately arrive
Sir Murray Stuart-Smith
[2001] EWCA Civ 1547
England and Wales
Cited – Hayes and others v Transco Plc CA 17-Sep-2003
The defendant appealed awards against it of disturbance payments to the claimants under their contracts of employment. The claimants had produced documents at the last minute before the trial but it was arguable that since these documents were those . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.186278
Unreported, 6 November 1992
England and Wales
Cited – Abraham and Another v Thompson and Others ChD 12-May-1997
The court may issue a stay of proceedings pending disclosure of the source of funding of an action, without there needing to be any suggestion of champerty or other illegality. The first plaintiff was ordered to disclose to the 5th and 6th . .
See Also – Broxton v McClelland CA 31-Jan-1995
The defendants issued various applications to strike out the claim, including a claim of abuse of process. The action was being financially maintained by a third party. The defendants contended that the maintainer’s purpose was to oppress and . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.183803
Legal professional privilege is a right to resist the compulsory disclosure of information. ‘It is not possible to assert a right to refuse to disclose in respect of a document which has already been disclosed. Once the document has passed into the hands of the other party the question is no longer one of privilege but of admissibility.’
Hoffmann J
[1991] 1 WLR 753
Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.182249
The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending.
Held: The court refused to interfere with the exercise of his dicretion by the industrial tribunal chairman. Crane J said: ‘Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse.’
Crane J
[1979] ICR 778
Cited – Dr Y R Teinaz v Wandsworth Borough Council CA 16-Jul-2001
The applicant had made a claim to the tribunal, but then applied for an adjournment on medical grounds, submitting a medical certificate.
Held: Where a refusal to exercise a discretion could lead to the loss of significant rights, a court . .
Cited – Mote v Secretary of State for Work and Pensions and Another CA 14-Dec-2007
The appellant was accused of having received income benefits to which he was not entitled. A prosecution was commenced and at the same time he appealed to the tribunal against the decision that there had been an overpayment. The authorities . .
Approved – Carter v Credit Change Ltd CA 2-Jan-1979
There are restricted circumstances in which the tribunal can interfere on appeal with the tribunal’s exercise of its discretion. Stephenson LJ said: ‘All the reasons which he gave seem to me to be good reasons for the decision to which he came; many . .
Cited – St Albans Girls School and Another v Neary CA 12-Nov-2009
The claimant’s case had been struck out after non-compliance with an order to file further particulars. His appeal was allowed by the EAT, and the School now itself appealed, saying that the employment judge had wrongly had felt obliged to have . .
Mentioned – Bull Information Systems Ltd v Joy and Rose EAT 13-Apr-1999
The claimants complained of unfair dismissal. The appellant company said that the contracts, as apprenticeships, did not give rise to continuous service accruals. The company appealed against a refusal of an adjournment of the hearing.
Held: . .
Cited – P v West Dorset General Hospital NHS Trust EAT 9-Jun-2004
EAT Practice and Procedure – Postponement or stay – Application for stay of ET proceedings pending GMC professional misconduct hearing refused. No error of law; if so; stay appropriate. . .
Lists of cited by and citing cases may be incomplete.
Updated: 12 May 2022; Ref: scu.180696
[1997] EWHC Admin 296
England and Wales
Updated: 11 May 2022; Ref: scu.137241
Where a court seal had been affixed to a document to show its receipt, but the document was not entered into the court records as received until later, when the application had become out of time, the only inference to be drawn by the court was that it had been received in time.
Times 27-Oct-1999
England and Wales
Updated: 11 May 2022; Ref: scu.89601
Where a court faced a situation where the time for oral submissions had overrun, it was open to him to order written submissions. He had the discretion whether or not to order sequential submissions or exchange, and could choose not to allow final oral submissions. Once having heard oral submissions, much was to be lost by delay in which the advantage of fresh impressions might be lost.
Times 03-Nov-1999
England and Wales
Updated: 11 May 2022; Ref: scu.89306
New South Wales – in respect of a party or a witness, a charge of misconduct should be made only where the party making it satisfies himself that there are grounds for making it. Fraud must be pleaded specifically and with particularity. If a person is to be charged with doing or writing something which will involve serious consequences, the person is not to be condemned casually or by ‘inexact proofs, indefinite testimony, or indirect inferences’
Mahoney JA
(1990) 22 NSWLR 125
Australia
Cited – Dhir v Saddler QBD 6-Dec-2017
Slander damages reduced for conduct
Claim in slander. The defendant was said, at a church meeting to have accused the client of threatening to slit her throat. The defendant argued that the audience of 80 was not large enough.
Held: ‘the authorities demonstrate that it is the . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.602121
Application by Triple Point for an injunction restraining execution of a judgment that PTT attempted to enforce in the State of Connecticut in the United States in May 2018. A stay of execution had, prior to that date, already been ordered by the Court of Appeal in an order of Jackson LJ dated 22 February 2018. There is no dispute between the parties that the steps taken in respect of enforcement in Connecticut (by the US Marshal) should not have been taken, because the certified judgment obtained from the court in London should not have been obtained. However, there is a dispute about the terms of the order that should be granted on the injunction.
Fraser J
[2018] EWHC 1398 (TCC)
England and Wales
See Also – Triple Point Technology, Inc v PTT Public Company Ltd TCC 23-Aug-2017
. .
Appeal from – Triple Point Technology, Inc v PTT Public Company Ltd CA 5-Mar-2019
Appeal by the supplier of a software system against a judgment of the Technology and Construction Court, dismissing its claim for payment and ordering it to pay substantial damages on the counterclaim. The main issue of principle which arises is how . .
Lists of cited by and citing cases may be incomplete.
Updated: 11 May 2022; Ref: scu.620130
Latham LJ said: ‘I can see that were delay to have occasioned prejudice short of an inability of the court to be able to provide a fair trial, then there would be or may be scope for the use of other forms of sanction. But where the conclusion that is reached is that the prejudice has resulted in an inability of the court to deal fairly with the case, there can only be one answer and one sanction; that is for the [proceedings] to be struck out’
Latham LJ
Unreported, 25 May 2000
England and Wales
Updated: 11 May 2022; Ref: scu.598325
(1869) LR 4 Ex 87
England and Wales
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.
Updated: 11 May 2022; Ref: scu.372590
[1848] EngR 612 (A), (1848) 2 Ph 623
England and Wales
Updated: 11 May 2022; Ref: scu.300162
It is no ground for setting aside a distringas, that the affidavit on which it was obtained, states that the calls and appointments were made ‘at the place of residence of the defendant; ‘ or that it states briefly that the defendant has not appeared, without adverting to any search ; or that it does not state when, or where, or whether, the copy of the writ of summons reached the hands of the defendant – Where no objection has been taken to a writ of summons, in which the defendant is described by initials, it is too late to object to the distringas on that ground.
[1848] EngR 614 (A), (1848) 6 CB 260
England and Wales
Updated: 11 May 2022; Ref: scu.300164
[1860] EngR 801 (B), (1860) 2 Sw and Tr 64
England and Wales
Updated: 11 May 2022; Ref: scu.285640
Under the CPR, a company could now appear at court in person and without a legal representative. The old rule has not been carried forward. However the old rule had been clear and in a case under those rules, the order that the company was not properly before the court was properly made.
Times 31-Aug-1999
Civil Procedure Rules 1998 No 3132
England and Wales
Updated: 11 May 2022; Ref: scu.85633
The Immigration Appeal Tribunal does not have discretion, whether implied or otherwise, to admit new or further evidence without notice having first been given. The Rules explicitly required advance notice to be given, and nor was it proper for the tribunal itself to introduce evidence. The absence of a rule against such admission of evidence was not conclusive.
Times 25-Nov-1999, Gazette 01-Dec-1999
Asylum (Appeals) Procedure Rules 1996 No 2070
England and Wales
Updated: 10 May 2022; Ref: scu.83275
A person requiring leave to issue proceedings as a vexatious litigant, had also to obtain leave again before entering an appeal to the Court of Appeal. The entering of an appeal is either the institution of new proceedings, or an application requiring leave as an application in any civil proceedings instituted in any court.
Sir Richard Scott, Vice-Chancellor observed: ‘As a general principle, if a judge of the High Court, to whom application is made by a vexatious litigant for permission to institute proceedings, grants that permission, the leave that is granted franks the proceedings. Every judgment at first instance now requires permission to appeal for the case to be taken further. An application for that permission will receive the attention of either the first instance judge or, as it maybe, the Court of Appeal. A vexatious appeal will not be permitted. So once the High Court has given permission for proceedings to be instituted, a further application to the High Court for permission to institute an appeal is, as it seems to me, superfluous. As at present, however, there is no escape from the requirement that a further application for permission to appeal must be made to the High Court. I propose, the point having come to my attention via Mr Johnson’s proposed appeal, to raise the question with the Rules Committee and see whether we are able to amend the Rules so as to make it clear that no further application under s. 42 of the 1981 Act is needed once permission to institute proceedings has been granted.’
Robert Walker LJ, Swinton Thomas LJ
Times 23-Nov-1999, Gazette 01-Dec-1999, [2000] 1 WLR 1502, [2000] 1 All ER 450
England and Wales
Cited – Regina v Common Professional Examination Board, Ex Parte Mealing-Mcclead CA 19-Apr-2000
A party was required to pay money into court before pursuing an appeal. She borrowed money for this purpose but on the express condition that it should be used for this purpose only and was not to become part of her general assets. The money was . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.82564
There had been a split hearing with regard to an application for a child to be committed to the care of the local authority. At the hearing to look into the facts, the court preferred the evidence of a lay witness over medical evidence as to the timing of injuries. The local authority appealed against the findings of fact, and it was held that such an appellate jurisdiction to hear an appeal on the facts where they were determinative under the Act, and the judge had here failed to give reasons to support the decision to reject the expert opinion.
Gazette 17-Dec-1999, Times 18-Jan-2000
England and Wales
Updated: 10 May 2022; Ref: scu.81704
In order to establish a plea of tender before, the defendant had, in addition to making the actual payment into court, also to serve on the claimant the formal notice required under the rules to say that the payment had been made. In the absence of such, he achieved no protection form an award of costs. Notification by means of the pleadings in the action was not sufficient.
Times 10-Dec-1999
Rules of the Supreme Court Ord 18 R 16
England and Wales
Updated: 10 May 2022; Ref: scu.81012
Once a writ had been issued, the Ombudsman had no standing to hear a complaint. The applicant wished to preserve his rights against the defendant in negligence but to pursue a complaint first. It was held that the writ having been issued, it would first have to be stayed, adjourned or discontinued, before the Ombudsman could accept jurisdiction on the complaint.
Gazette 25-Nov-1999, Times 03-Dec-1999
England and Wales
Updated: 10 May 2022; Ref: scu.80638
The applicants claimed in negligence against the Home Office after its advisers had wrongly advised the first defendants that the claimants’ travel documents were not valid. The claim was struck out, and the claimants appealed. The strike out was wrong in principle, because such a claim required first for certain facts to be established or denied, and that required other steps to be taken before a strike out application could properly be determined. Such a representation arguably founded a negligence action because there was arguably a sufficient degree of proximity between the Home Office and the passenger to give rise to a duty of care. The strike out was premature.
Lord Woolf MR and Chadwick LJ
Times 26-Jan-2000
Immigration (Carriers Liability) Act 1987
England and Wales
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Binod Sutradhar v Natural Environment Research Council CA 20-Feb-2004
The defendant council had carried out research into a water supply in India in the 1980s. The claimant drank the water, and claimed damages for having consumed arsenic in it.
Held: There is a close link between the tests in law for proximity . .
Cited – Quickson (South and West) Limited v Stephen Mark Katz, John Stephen Kelmanson (As Joint Liquidators of Buildlead Limited) ChD 25-Aug-2004
Various applications were made in the insolvency, including for removal of the liquidators and declarations that certain payments were a fraudulent preference on the creditors.
Held: No prejudice had been shown by any procedural irregularity. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.80467
Especially given the new emphasis on proportionality, a party who brought contempt proceedings, in the case of an inadvertent breach of an injunction, with a view solely to creating costs for the other party, could expect to face those costs themselves. It was unwise to execute a complex search and seize order on a Saturday when the defendant would not have access to legal advice, and with no supervising solicitor. The mental element required of a contemnor is not that he either intends to breach or knows that he is breaching the court order or undertaking, but only that he intended the act or omission in question, and knew the facts which made it a breach of the order.
Jacob J, applying Bhimji, said: ‘Since that judgment the Civil Procedure Rules have come into force. Their emphasis on proportionality and on looking at the overall conduct of the parties emphasises the point that applications for committal should not be seen as a way of causing costs when the defendant has honestly tried to obey the court’s order.’
Jacob J
Times 17-Aug-1999, [1999] 4 All ER 486
England and Wales
Applied – Bhimji v Chatwani 1991
. .
Cited – Sectorguard Plc v Dienne Plc ChD 3-Nov-2009
The claimant alleged misuse of confidential information in the form of its customer list, and its charges to them. The defendant company was run by former employees of the claimant. A later allegation was made of accessing the defendant’s private . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.77636
On a day when the court office is closed, the time for filing documents is accordingly extended by one day, if the expiring day would otherwise have been that day. A request for an appeal was due to be filed within 21 days. The last day was a day on which the court was closed. This made filing impossible for that day.
Times 03-Dec-1999, (1999) 32 HLR 848
England and Wales
Applied – Pritam Kaur v S Russell and Sons Ltd CA 2-Jun-1972
The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following.
Held: The appeal succeeded. The writ was . .
Cited – Van Aken v Camden London Borough Council CA 11-Oct-2002
The appellant sought to appeal a review of his application for housing. The appeal was lodged at court after close of business on the last day of the statutory time limit. The court decided it was delivered out of time.
Held: The Act required . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.77592
The court refused an application by the claimant, made after judgment, to add additional defendants. It was no longer possible to re-open the judgment, and the capacity of the purported additional defendants to defend had been prejudiced.
[2001] IPD 25018
England and Wales
Updated: 10 May 2022; Ref: scu.251813
The claimant brought proceedings for professional negligence against a barrister specialising in tax. The Defendant wished to rely upon the expert evidence of another tax barrister in the same set of chambers as him, who was a friend of many years’ standing. In his expert report, the proposed expert said that he did not believe his relationship with the defendant would affect his evidence, but accepted that his personal sympathies were engaged to a greater degree than would probably be normal with an expert witness.
Held: The court may take a different view from that of the parties as to whether an expert has a conflict of interest which might lead the court to reject the independence of his opinion. By the admission that his personal sympathies were engaged to a greater degree than would probably be normal with an expert witness, the expert had rendered his evidence unacceptable on the grounds of public policy that justice must be seen to be done as well as done.
Evans Lombe J said: ‘However, in my judgment, where it is demonstrated that there exists a relationship between the proposed expert and the party calling him which a reasonable observer might think was capable of affecting the views of the expert so as to make them unduly favourable to that party, his evidence should not be admitted however unbiased the conclusions of the expert might probably be. The question is one of fact, namely the extent and nature of the relationship between the proposed witness and the party.’
Evans Lombe J
[2001] 1 WLR 2337, [2001] 4 All ER 950, [2001] Lloyds Rep Prosecution 518
England and Wales
Cited – Toth v Jarman CA 19-Jul-2006
The claimant appealed dismissal of his claim for damages for nervous shock, associated with the alleged negligence of the defendant doctor in treating his son. It was said that the medical expert had not disclosed a conflict of interest.
Held: . .
Cited – Armchair Passenger Transport Ltd v Helical Bar Plc and Another QBD 28-Feb-2003
Objection was made to the use of an expert witness who had formerly been a senior employee of the defendant.
Held: The court set out criteria for testing the independence of a proposed expert witness: ‘i) It is always desirable that an expert . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.244629
The court will normally only refuse a stay pending appeal against the award of an injunction if the successful injunctor is willing to give a cross-undertaking in damages should the appeal be successful
[1976] RPC 671
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.242617
A hotel had been built so as to encroach across a building line in breach of covenant, allowing the hotel to have 25 more rooms than it would otherwise have enjoyed. The court considered conflicting evidence as to the capital value of the additional rooms.
Held: The court set out in detail its approach to the hypothetical negotiation for a licence to breach the covenant in great detail, including a preference for Amec’s method of arriving at the incremental value of the additional rooms, and awarded andpound;375,000, nearly 20 per cent of the increased value on that view. The correct date for assessing damages is normally the date before the building works in question are started.
Anthony Mann QC
[2001] EGLR 81
England and Wales
Cited – Small v Oliver and Saunders (Developments) Ltd ChD 25-May-2006
The claimant said his property had the benefit of covenants in a building scheme so as to allow him to object to the building of an additional house on a neighbouring plot in breach of a covenant to build only one house on the plot. Most but not all . .
Cited – WWF (World Wide Fund for Nature) and Another v World Wrestling Federation Entertainment Inc CA 2-Apr-2007
The parties had disputed use of the initals WWF, with a compromise reached in 1994 allowing primary use by the Fund with restricted use by the Federation. The Federation now appealed an award of damages made after a finding of a breach of the . .
Cited – Tamares (Vincent Square) Ltd. v Fairpoint Properties (Vincent Square) Ltd ChD 8-Feb-2007
The defendant had been found liable for infringing the claimant’s right of light. The court considered the proper measure of damages.
Held: The court should ask what might be the fair result of a hypothetical negiation for the sale of the . .
Cited – Harris v Williams-Wynne ChD 11-Feb-2005
The parties agreed in sale agreement for a plot of land that the buyer would not erect any additional building. He did so, and when he came to try to sell it the original vendor objected. The purchaser’s solicitors registered the agreement for sale. . .
Lists of cited by and citing cases may be incomplete.
Updated: 10 May 2022; Ref: scu.242395
Although in certain procedural decisions, reasons need not be given, they otherwise must be. Buckley LJ said: ‘Litigants are entitled to know on what grounds their cases are decided. It is of importance that the legal profession should know on what grounds cases are decided, particularly when questions of law are involved. And this Court is entitled to the assistance of the Judge at first instance by an explicit statement of his reasons for deciding as he did.’
Buckley LJ
[1976] Ch 319
England and Wales
Cited – AA069062014 and Others AIT 30-Aug-2017
Several appellants, all from the same judge, complained of his handling of their cases.
Held: The complaints about the decisions were entirely well-founded: ‘Nobody reading them could detect how the judge reached the conclusion he did, acting . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.595471
Lord Hatherley said: ‘Now I take it to be as settled as anything well can be by repeated decisions, that the mere averment of fraud, in general terms, is not sufficient for any practical purpose in [a pleading]. Fraud may be alleged in the largest and most sweeping terms imaginable. What you have to do is, if it be matter of account, to point out a specific error, and bring evidence of that error, and establish it by that evidence. Nobody can be expected to meet a case, and still less to dispose of a case, summarily upon mere allegations of fraud without any definite character being given to those charges by stating the facts upon which they rest.’
Lord Selbourne LC said: ‘With regards to fraud, if there be any principle which is perfectly well settled, it is that general allegations, however strong may be the words in which they are stated, are insufficient even to amount to an averment of fraud of which any Court ought to take notice. And here I find nothing but perfectly general and vague allegations of fraud. No single material fact is condescended upon; in a manner which would enable any Court to understand what it was that was alleged to be fraudulent.’
Lord Hatherley, Lord Selbourne LC, (Lord Blackburn
(1880) 5 App Cas 685
England and Wales
Cited – Cavendish Square Holding Bv v Talal El Makdessi; ParkingEye Ltd v Beavis SC 4-Nov-2015
The court reconsidered the law relating to penalty clauses in contracts. The first appeal, Cavendish Square Holding BV v Talal El Makdessi, raised the issue in relation to two clauses in a substantial commercial contract. The second appeal, . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.592688
The plaintiff paid for goods bought from the defendant. The defendant then brought an action for payment of the price alleging that he had not been paid. The claimant could not find his receipt for the first payment, and was ordered by the court to pay again. He then found the receipt and brought an action for money had and received to recover the second payment.
Held: Where money has been wrongly paid under the compulsion of legal process it cannot be recovered back in action for money had and received to the payer’s use.
Lord Kenyon said: ‘I am afraid of such a precedent. If this action could be maintained I know now that cause of action could ever be at rest. After a recovery by process of law there must be an end to litigation, otherwise there would be no security for any person.’
Lord Kenyon CJ
[1775-1802] All ER Rep 631
England and Wales
Applied – Wilson v Ray 1-May-1839
Lord Denman CJ descirbed the pronciple establishedin Marriott: .that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding. . .
Cited – John Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.593141
A clear distinction is to be made between pronouncing judgment, that is, the giving of formal orders, and subsequently entering judgment. Entry of judgments or orders in the registry of the court achieves finality by bringing the litigation to an end.
Lord Esher MR said: ‘and the intention of the rule clearly is that, from the moment when the judge has pronounced judgment, and entry of the judgment has been made, the judgment is to take effect, not from the date of entry, but from the date of its being pronounced; it is an effective judgment from the day when it is pronounced by the judge in court.’ He went on to contrast common law judgments with those given in Chancery (‘without the verdict of a jury’), and then with those generally given after the Judicature Act, when, as he said, it was desired to make the relevant procedures identical, so that ‘power is given to the judge at nisi prius to do what he could not have done before, to direct judgment to be entered according to verdict, which is the same thing as giving him power to give or pronounce judgment’
Lord Esher MR
(1889) 24 QBD 103, (1889) 38 WR 68, (1889) 61 LT 297
England and Wales
Updated: 09 May 2022; Ref: scu.591413
The court considered the application of the test of materiality when a party gave disclosure in family proceedings.
[2012] EWHC 3788 (Fam)
England and Wales
Cited – S v S FD 29-Apr-2013
W sought to re-open a sttlement of the financial arrangement on her divorce, saying that there had been substantial non-disclosure by H.
Held: ‘any order which would have been made if proper disclosure had taken place would not have been . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.591355
The normal meaning of the word ‘or’ is disjunctive, although in a suitable context it can be read as equivalent to ‘and’, or as expressing a non-exclusionary alternative equivalent to ‘and/or’
Lord Reid, Lord Wilberforse
[1974] 1 WLR 505, [1974] 2 All ER 97
England and Wales
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.591351
A Mareva order had been obtained. The order explicitly included goodwill as an asset of the company, but the defendant argued still that it was not covered as an asset for the injunction.
Held: The court rejected the assertion.
Lord Denning MR said: ‘Every businessman knows that goodwill is a valuable commodity’. Lord Denning cited, as typical examples of goodwill assets, ‘a list of customers but also the established connections with them’.
Lord Denning MR
[1982] WL 222281, Times 30-Mar-1982
England and Wales
Cited – Templeton Insurance Ltd v Thomas and Another CA 5-Feb-2013
The court was asked whether goodwill was to be regarded as an asset in the context of an asset freezig order. A third party company was subject to such and they were said to have broken the order by the purchase at an undervalue of the company . .
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.591724
The court held that a defendant subject of an asset freezing order, who borrows money, does thereby increase his indebtedness but does not dispose of, deal with or diminish the value of his ‘assets’ within the meaning of the standard form of freezing order. By borrowing money and spending the borrowed money the defendant may reduce his net asset position but that is not what he is restrained from doing by the standard form of wording.
Neuberger J
[2002] CP Rep 25
England and Wales
Cited – JSC BTA Bank v Ablyazov SC 21-Oct-2015
The court was asked as to the interpretation and application of the standard form freezing order. In the course of long-running litigation between JSC BTA Bank and Mr Ablyazov the Bank had obtained a number of judgments against the respondent . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.591722
Sachs J set out the disclosure required in ancillary relief cases: ‘In cases of this kind, where the duty of disclosure comes to lie upon the husband; where a husband has – and his wife has not – detailed knowledge of his complex affairs; where a husband is fully capable of explaining, and has the opportunity to explain, those affairs, and where he seeks to minimise the wife’s claim, that husband can hardly complain if when he leaves gaps in the court’s knowledge, the court does not draw inferences in his favour. On the contrary, when he leaves a gap in such a state that two alternative inferences may be drawn, the court will normally draw the less favourable inference – especially where it seems likely that his able legal advisers would have hastened to put forward affirmatively any facts, had they existed, establishing the more favourable alternative.’
. . And ‘ . . it is as well to state expressly something which underlies the procedure by which husbands are required in such proceedings to disclose their means to the court. Whether that disclosure is by affidavit of facts, by affidavits of documents or by evidence on oath (not least when that evidence is led by those representing the husband) the obligation of the husband is to be full, frank and clear in that disclosure’
Sachs J
[1955] 2 All ER 85, [1955] P 215, [1955] 2 WLR 973
England and Wales
Cited – Robinson v Robinson (Disclosure) Practice Note CA 1982
The court considered the duty of parties in finacial relief proceedings to give full disclosure.
Held: In proceedings for ancillary relief, there was a duty, both under the rules and by authority, on the parties to make full and frank . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.591353
Supreme Court of British Columbia. The Court prohibited, until the conclusion of the proceedings, identification of school staff accused of abusing boys in an action brought by them in later life against the school.
Held: The protection of innocent people was a social value of superordinate importance which, were they to suffer irreparable harm to their reputation, would justify overriding the general principle of open justice; that, accused of being paedophiles, the staff had been put in the category of persons most condemned and reviled by society; and that, were they to be publicly identified, they would suffer irreparable harm before they had had any opportunity to rebut the accusations.
Wong J
2002 BCSC 1417, 221 DLR (4th) 751, [2002] CarswellBC 2395, [2002] BCJ No 2246 (QL), [2002] BCTC 1417
Canada
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.590535
Court of Appeal fro British Columbia – Teachers had been accused of historical sexual abuse. An order was made for their anonymisation pending conclusion of those civil proceedings. The proceedings had now been dismissed. The Court now considered whether the anonymisation of the complainants had been correctly dischatrged.
Held: Finch CJ cited substantial authority in support of his proposition that ‘replacing the names of certain parties with initials relates only to ‘a sliver of information’ and minimally impairs the openness of judicial proceedings’.
Finch CJ, MacKenzie, Lowry JJ
2004 BCCA 345, [2004] BCJ No 1235 (QL), [2004] CarswellBC 1359, 200 BCAC 223, 242 DLR (4th) 665
Canada
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Lists of cited by and citing cases may be incomplete.
Updated: 09 May 2022; Ref: scu.590536
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter.
Held: The bank is no doubt indebted to the judgment debtor and the bank is within the jurisdiction. The Order deals with the case where ‘any other person is indebted to the judgment debtor and is within the jurisdiction’. But both in principle and upon authority, that means ‘is indebted within the jurisdiction and is within the jurisdiction’. The debt must be properly recoverable within the jurisdiction. In principle, attachment of debts is a form of execution, and the general power of execution extends only to property within the jurisdiction of the Court which orders it. A debt is not [properly] within the jurisdiction if it cannot be recovered here. The court was accordingly of opinion that moneys held by the bank to the credit of the judgment debtor at the African branches cannot be made the subject of a garnishee order, for they are not a debt recoverable within the jurisdiction.’ The court went on to hold that, if he was wrong in that conclusion, he would exercise his discretion against the making of an order.
Hill J
[1927] P 228,
Distinguished – SCF Finance Co Ltd v Masri (No 3) 1987
The court accepted that in a case where the garnishee was not indebted within the jurisdiction that might be relevant to the exercise of the court’s discretion. Since, in this case, the debt in question was an English debt, the court’s jurisdiction . .
No Longer good law – Interpool Ltd v Galani CA 1988
The debtor appealed against an order to answer questions and disclose documents relating to any debts owed to him or other property or means belonging to him outside the jurisdiction. The court looked at the examination of a judgment debtor under . .
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.183542
A ‘Pending’ action for consolidation purposes includes a writ not yet served.
Gazette 08-Jul-1992
Appeal from – Arab Monetary Fund v Hashim and Others (No 4) CA 9-Sep-1992
A Court had jurisdiction to order the consolidation of actions even before their respective writs had been served. It became a ‘pending’ action under the Order on issue of the originating process. . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.77851
An ‘independent’ reporter may not interview the ward without the court’s leave.
[1983] 1 All ER 1097, [1983] 1 WLR 416
England and Wales
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.
Updated: 08 May 2022; Ref: scu.588207
Debt upon an obligation of six hundred pounds, dated 4th September, 37 Eh. conditioned, that if he were seised in his demesne as of fee, the (lay of the obligation made, of such copyhold lands in Sybton-Docking, and if the said lands be discharged of all incumbrances made by him, except the estate and title of jonture of his wife Elizabeth, that the the obligation should be void. The breach is assigned in hoc, that the defendant, before the obligation made, had surrendered those lands apud Sybton praeclict. to the use of Elizabeth his wife for life. The defendarrt pleaded, that he did riot surrender it modo et format The plaintiff sur-rejoins, quod sursum reddidit apud Sybton-Docking, modo et forma, and co and thereupon a venire facias was awarded to Sybton, and tried for the plaintiff, and judgment accordingly. Error was now thereof brought.
And the first error assigned was, because the veniire facias is from Sybtori, where it ought to have been from Sybton-Docking; for so is the rejoinder, which makes the issue.
[1653] EngR 2235, (1653) Cro Eliz 762, (1653) 78 ER 993
England and Wales
Updated: 08 May 2022; Ref: scu.414542
The names of two Defendants having been inserted in the writ of summons, separate proceedings were taken against each : Held, irregular.
[1834] EngR 811, (1834) 1 Bing NC 71, (1834) 131 ER 1044 (B)
England and Wales
Updated: 07 May 2022; Ref: scu.317487
Lord Denman CJ descirbed the pronciple establishedin Marriott: .that what a party recovers from another by legal process, without fraud, the loser shall never recover back by virtue of any facts which could have availed him in the former proceeding. Money so recovered was . . received to the use of the successful party by authority of law. If any error was committed in the former proceeding, still the plaintiff is estopped from proving it after failing to do so at that time. If this were otherwise, the rights of parties could never be settled by the most solemn proceeding.’
Lord Denman CJ
[1839] EngR 647, (1839) 10 Ad and E 82, (1839) 113 ER 32
England and Wales
Applied – Marriott v Hampton KBD 1775
The plaintiff paid for goods bought from the defendant. The defendant then brought an action for payment of the price alleging that he had not been paid. The claimant could not find his receipt for the first payment, and was ordered by the court to . .
Cited – John Ruskin College v Harley QBD 26-Nov-2013
A sum had been paid into court in 1997. Other sums were paid out, but this sum was left against costs liability. It was discovered much laterand paid out to the claimant. The former defendant now said that it had been paid out twice, and alleged . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.311179
The principle upon which the Court acts, in directing substituted service, is to sanction such service as affords a reasonable certainty that the Defendant will know of it.
In a suit by infants, natural-born subjects and out of the jurisdiction, by their next friend, to which their father and mother (the latter being also out of the jurisdiction) were Defendants, service, under an order, of a bill on the solicitor who had acted for the mother in the institution of a suit in the Ecclesiastical Court against the father, waa held to be good service.
The Infants, who were in the mother’s custody, under an agreemento restore them to the father on B given day, which she refused to do, by their bill prayed that they might be restored to their father, to be educated in England. Held, that the Court had jurisdiction to take cognizance of the case, arid would interfere in the manner most for their benefit, provided it could see the mode of enforcing its order.
Incompetency of the Courts in France to modify the legal conditions of marriage of English subjects there resident.
[1854] EngR 468, (1853-1854) 19 Beav 237, (1854) 52 ER 340
England and Wales
Updated: 07 May 2022; Ref: scu.293325
Morgan QC
[2007] EWHC 3461 (Ch), [2007] All ER (D) 89
England and Wales
Appeal from – Roberts v Gill and Co and Another CA 15-Jul-2008
The claimant sought damages in negligence against solicitors who had advised the executors in an estate of which he was a beneficiary. He now sought to amend his claim to make a claim in his personal and in derivative capacities. Sums had been paid . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.279798
The father appealed the terms of a contact order, saying that the judge had failed to address a particular issue in his judgment.
Held: Where counsel perceived such an omission in a judgment, it was his duty to mention it at the time, and not to save it to found an application for leave to appeal.
Wall LJ, Thorpe LJ, Hedley J
Times 02-Jul-2007
England and Wales
Updated: 07 May 2022; Ref: scu.254497
The claimant judgment creditor sought a third party payment order. An interim third party payment order had already been obtained byanother party. The claimant sought payment pari passu.
Held: The other party had priority once their interim order was made absolute. A garnishee order nisi created a defeasible charge in favour of the judgment creditor in respect of the debt garnisheed. That effect was preserved for third party payment orders by the Rules.
Cooke J
Times 27-Feb-2006
England and Wales
Cited – Societe Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.238870
The court considered to what extent it could look to the form of an Act before it was amended in order to assist it in construing the Act as amended: ‘The original section 21(a) of the [Coroners (Amendment) Act] 1926 is no longer law, since it has been replaced by Section 23(3) of the Births and Deaths Registration Act 1953. Nevertheless, the original subsection is admissible in construing the section as a whole and, in our judgment, throws light on its construction. It demonstrates that the section as a whole contemplates a two-stage process’.
Slade LJ
[1988] 1 QB 513
Births and Deaths Registration Act 1953
England and Wales
Cited – Regina v Hammersmith and Fulham London Borough Council, ex parte M; Regina v Similar Ex Parte P etc QBD 8-Oct-1996
Destitute asylum seekers who were not entitled to welfare benefits could be in need of care and attention within the meaning of section 21 of the 1948 Act although they were no longer entitled to housing assistance or other social security benefits . .
Lists of cited by and citing cases may be incomplete.
Updated: 07 May 2022; Ref: scu.238299
In group litigation in respect of the MMR vaccinne, certain lead claimants had had their legal aid withdrawn.
Held: They would be allowed to withdraw from the action and would not require the permission of the court.
Keith J
Times 22-Oct-2004
England and Wales
Updated: 06 May 2022; Ref: scu.220018
The first instance Judge had struck out a claim under the provisions of order 24 rule 16(1) in circumstances where a number of relevant documents did not appear on the plaintiffs list of documents and were found to have been destroyed, the destruction having taken place after the commencement of proceedings, and in respect of some of the documents, after the plaintiffs list of documents had been filed.
Held: ‘this is the first occasion on which a claim has been stuck out for breach of a discovery obligation’ The judge at first instance was ‘fully entitled to find that there was a serious risk that essential documents may have been destroyed in this case, as a result of which a fair trial of the action is no longer possible… .’ and ‘It may be that the submission means no more than this, that where documents have been deliberately suppressed, it may be relatively easy to draw the inference that they are highly material and that in the absence of those documents justice cannot be done. If that is all that was meant, then I would agree.’
Lord Justice Lloyd
Times 14-May-1991
England and Wales
Cited – Logicrose Ltd v Southend United Football Club Ltd CA 5-Feb-1988
The agent required the contractual counterparty to pay a bribe of pounds 70,000 to an offshore account.
Held: The bribe was held to be recoverable by the principal whether the principal rescinded or affirmed the contract because it was a . .
Cited – Arrow Nominees Inc, Blackledge v Blackledge ChD 2-Nov-1999
The applicants sought to strike out a claim under section 459. The two companies sold toiletries, the one as retail agent for the other. They disputed the relationship of the companies, and the use of a trading name. Documents were disclosed which . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.211362
An employee was told by his master ‘I am going to falsify these sales notes and deceive the customers. You are not to say anything about it to anyone.’ He thereafter falsified the sale notes.
Held: The servant was entitled to say: ‘I am not going to stay any longer in the service of a man who does such a thing. I will leave him and report it to the customers.’ ‘There is no confidence in the disclosure of iniquity’
Wood V-C
(1856) 26 LJ Ch113
England and Wales
Cited – Initial Services Ltd v Putterill CA 1967
The plaintiff’s sales manager resigned, but took with him confidential documents which he gave to a newspaper. The defendant sought to justify this, saying that the company had failed to register agreements it should have done under the Act.
Cited – Lion Laboratories Ltd v Evans CA 1985
Lion Laboratories manufactured and marketed the Lion Intoximeter which was used by the police for measuring blood alcohol levels of motorists. Two ex-employees approached the Press with four documents taken from Lion. The documents indicated that . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.193372
Procedure – RSC Order 20 r.5(3) – amendment with leave – discretion – RSC Order 6 r.8(1) – validity of writ – 4 months – RSC Order 11 r.1(1) – leave to serve outside jurisdiction – validity of writ – 6 months – admiralty action in personam RSC Order 75 r.4(4) – exclusion of RSC Order 11 r.1(2) – meaning. Privilege – deployment of court material otherwise privileged – principles – application at interlocutory stage – Fairness – disclosure of part of privileged document – waiver of privilege with respect to other parts
Clarke J
Unreported, 02 November 1995
England and Wales
Updated: 06 May 2022; Ref: scu.185993
When considering the retrospective effects of an Act, ‘where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.’
Wilde B
(1860) 6 H and N 227, [1860] EngR 1191, (1860) 6 H and N 227, (1860) 158 ER 94
England and Wales
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.184441
The defendants owned a block of flats that were tenanted. The plaintiff lived as a lodger with her sister in one of the flats. She was injured when walking down the steps from her flat; the steps were part of the common property under the control of the landlord. The plaintiff argued that she was an invitee of the landlord and thus was owed a higher standard of care than would have been owed to a licensee.
Held: An invitee of a tenant was only a licensee of the landlord when using the stairway. In fact, the plaintiff would have lost on the facts, whether she was an invitee or a licensee, because the defect in the step on which she had slipped was perfectly obvious.
Lord Wrenbury stated: ‘There are some things which a reasonable person is entitled to assume, and as to which he is not blameworthy if he does not see them when if he had been on the alert and had looked he could have seen them.’ His Lordship then instanced the case of a staircase with a missing stair, or a ladder in which a rung has been removed, and went on to say that no reasonable person would expect that a step or a rung had been removed and added pungently: ‘he has nevertheless suffered from what has generally been called ‘a trap’ although if had stopped and looked he would have seen that the step or rung had been removed. He was not guilty of negligence, he was not bound to look out for such an unexpected danger as that, although if he had proceeded cautiously and looked out it would have been obvious to him.’
Lord Wrenbury, Lord Sumner, Lord Atkinson
[1923] AC 74, 92 LJKB 50
England and Wales
Cited – Bath v Escott ChD 11-May-2017
Judgment need not follow hearing transcript
Application to have released the audio recording of a hearing to a county court, the applicant saying that the judgment was not a true record of the hearing.
Held: Rose J explained the status of the various elements: ‘the mere fact that the . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.583993
The plaintiffs succeeded at the trial in respect of their claim for misuse of confidential information and other claims, and their entitlement to an injunction and delivery up of material containing confidential information. In argument about the form of the order, counsel for the defendants #suggested that a number of the documents of which delivery up was sought might well contain confidential information of the Defendants which would thus be placed in the hands of the plaintiffs.
Held: Graham J rejected the submission, saying: ‘If a wrongdoer includes material of his own and adds it to material which he has taken from the plaintiffs in my judgment he cannot complain if equity demands that when he has been found out he should deliver up the documents, even though they may now contain information of his own.’
Graham J
(1970) RPC 605.
England and Wales
Cited – Imerman v Tchenguiz and Others QBD 27-Jul-2009
It was said that the defendant had taken private and confidential material from the claimant’s computer. The claimant sought summary judgement for the return of materials and destruction of copies. The defendant denied that summary judgement was . .
Cited – Bains and Others v Moore and Others QBD 15-Feb-2017
The claimant anti-asbestos campaigners complained that the defendant investigators had infringed their various rights of privacy. They now sought discovery to support the claim.
Held: the contents of the witness statements do show that it is . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.582081
The court was asked whether section 139 precluded a mental patient from applying for leave to move for judicial review.
Held: A restriction on the bringing of civil or criminal proceedings imposed by the section 139 did not apply to proceedings for judicial review. Ackner LJ concluded that Parliament had not intended to bar the court’s supervisory jurisdiction ‘because, had it done so, there would indeed have been no remedy to quash a compulsory admission to hospital made a result of a reasonable misconstruction of a public official’s powers’ and that this ‘would have disclosed a serious inadequacy in the power of the courts to protect the citizen from an actual or potential loss of liberty arising out of a serious error of law.’
Ackner, Neill and Glidewell LJJ
[1986] 1 QB 824
England and Wales
Cited – Regina v Blandford Magistrates Court ex parte Pamment CA 1990
The Applicant was charged and remanded into custody by the Justices, having refused conditional bail. Bail was later granted, but he sought judicial review of the original remand decision, just before his trial, which then intervened. After the . .
Cited – Ew v Director of Public Prosecutions and Others CA 11-Feb-2010
The claimant was subject to an order requiring him to obtain leave before commencing any civil proceedings. He commenced a private prosecution which the respondent later decided to take over and discontinue. He sought judicial review of that . .
Lists of cited by and citing cases may be incomplete.
Updated: 06 May 2022; Ref: scu.408584
In a count on a guarantee for the repayment of bills, etc., drawn and subscribed by M and E, it was alleged that they accepted a bill, and by a memoraridum added to such acceptance, expressed the same to be payable at a particular place :-Semble, that the count waa bad on special demurrer, for want of an averment that the bills were subscribed by M and E
[1839] EngR 53, (1839) 5 M and W 653, (1839) 151 ER 277
England and Wales
Updated: 05 May 2022; Ref: scu.310585
[1976] CLY 2151
England and Wales
Cited – Roberts Petroleum Ltd v Bernard Kenny Ltd (in liquidation) CA 1982
The plaintiffs had supplied petrol to the defendant who owned two filling stations. The defendant prepared a statement of affairs ready to hold a meeting of creditors. The plaintiffs took their claim to judgement and obtained a charging order nisi . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.278207
[1982] 30 WIR 88
Commonwealth
Cited – Benjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-Feb-2001
PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this . .
Lists of cited by and citing cases may be incomplete.
Updated: 05 May 2022; Ref: scu.182061
Order made for identification of local authority criticised in care proceedings and order for costs.
Clifford Bellamy J
[2010] EWHC B22 (Fam), [2011] 1 FLR 1045
England and Wales
Cited – In re T (Children) SC 25-Jul-2012
The local authority had commenced care proceedings, alleging abuse. After lengthy proceedings, of seven men and two grandparents, all but one were exonerated. The grandparents had not been entitled to legal aid, and had had to mortgage their house . .
Cited – HB v PB FD 9-Jul-2013
Claim for costs against third party local authority, Croydon LBC after four day private law fact finding hearing. F said that M had fabricated illnesses both in herself and the child leading to the LA being asked to prepare a report. That report . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.424945
When applying for security for costs against a foreign resident plaintiff, it is first for the defendants to show that the plaintiff is resident abroad within Ord. 23, r. 1; secondly, for the plaintiff to show that he has an asset here which will remain here; and, thirdly, for the defendant to show, if he can, that the asset is worthless or not worth sufficient to cover the costs.
Greer LJ
[1937] 4 All ER 468
England and Wales
Cited – De Bry v Fitzgerald CA 1990
A request was made for security for costs in a large sum against a foreign resident party: ‘The more usual course might have been to order security, if security was to be ordered at all, in a relatively small sum in the first place, leaving the . .
Lists of cited by and citing cases may be incomplete.
Updated: 04 May 2022; Ref: scu.578227
The Court gave guidance setting out recommended practice regarding any application for interim injunctive relief in civil proceedings to restrain the publication of information (referred to as an interim non-disclosure order). In particular guidance was provided as to ‘the proper approach to the general principle of open justice in respect of such applications’.
Applications which seek to restrain publication of information engage article 10 of the Convention and section 12 of the Human Rights Act 1998 (‘HRA’). In some, but not all, cases they will also engage article 8 of the Convention. Articles 8 and 10 of the Convention have equal status and, when both have to be considered, neither has automatic precedence over the other. The court’s approach is set out in In re S (A Child) (Identification: Restrictions on Publication) [2005] 1 AC 593, para 17.
Open justice
Open justice is a fundamental principle The general rule is that hearings are carried out in, and judgments and orders are, public: see article 6.1 of the Convention, CPR r 39.2 and Scott v Scott [1913] AC 417. This applies to applications for interim non-disclosure orders: Micallef v Malta (2009) 50 EHRR 920, para 75ff; Donald v Ntuli (Guardian News and Media Ltd intervening) [2011] 1 WLR 294, para 50.
Derogations from the general principle can only be justified in exceptional circumstances, when they are strictly necessary as measures to secure the proper administration of justice They are wholly exceptional: R v Chief Registrar of Friendly Societies, Ex p New Cross Building Society [1984] QB 227, 235; Donald v Ntuli [2011] 1 WLR 294, paras 52-53. Derogations should, where justified, be no more than strictly necessary to achieve their purpose.
The grant of derogations is not a question of discretion. It is a matter of obligation and the court is under a duty to either grant the derogation or refuse it when it has applied the relevant test: M v W [2010] EWHC 2457 (QB) at [34].
There is no general exception to open justice where privacy or confidentiality is in issue. Applications will only be heard in private if and to the extent that the court is satisfied that by nothing short of the exclusion of the public can justice be done. Exclusions must be no more than the minimum strictly necessary to ensure justice is done and parties are expected to consider before applying for such an exclusion whether something short of exclusion can meet their concerns, as will normally be the case: Ambrosiadou v Coward [2011] EMLR 419, paras 50-54. Anonymity will only be granted where it is strictly necessary, and then only to that extent.
The burden of establishing any derogation from the general principle lies on the person seeking it. It must be established by clear and cogent evidence . . Scott v Scott [1913] AC 417, 438-439, 463, 477; Lord Browne of Madingley v Associated Newspapers Ltd [2008] QB 103, paras 2-3; Secretary of State for the Home Department v AP (No 2) [2010] 1 WLR 1652, para 7; Gray v W [2010] EWHC 2367 (QB) at [6]-[8]; and H v News Group Newspapers Ltd (Practice Note) [2011] 1 WLR 1645, para 21.
When considering the imposition of any derogation from open justice, the court will have regard to the respective and sometimes competing Convention rights of the parties as well as the general public interest in open justice and in the public reporting of court proceedings . . On the other hand, the principle of open justice requires that any restrictions are the least that can be imposed consistent with the protection to which the party relying on their article 8 Convention right is entitled.’
Lord Neuberger of Abbotsbury MR
England and Wales
Updated: 04 May 2022; Ref: scu.575242
The P and O. Company, one of the plaintiffs, not asserting any public right, and so not using the Attorney-General’s name, was bound to prove special damage and was unable to do so. It had failed to establish its alleged rights and so its appeal was dismissed but nevertheless the court made a declaration of right in favour of the P and O. The court supported to the distinction between private and public rights and to the necessity for the latter to be enforced by, or through, the Attorney-General.
[1892] 3 Ch 242
England and Wales
Updated: 04 May 2022; Ref: scu.573238
Giving day to one, if shall help the other. So if two be jointly and severaIly bound to pay money, and the obligee will give longer day (or other favour) to the one, and then will sue the other for the debt, he which is sued shall sue in Chancery
(1482-83) Cary 17, (1482) 21 ER 9 (H)
England and Wales
Updated: 04 May 2022; Ref: scu.470384