Civil Procedure

Simon Ross v Giles Insurance Brokers Limited, Sheriff Principal B A Lockhart, Dumfries Sheriff Court, 22 July 2011

Mon, 28 Nov 2011 23:23:00 GMT

This was an appeal against a Sheriff’s decision to dismiss an action in terms of Rule 15.7 of the Sheriff Court Rules, due to unfairness caused by an inordinate and inexcusable delay by the pursuer and appellant in progressing the case. In the action, which commenced on 23 September 2002, the appellant sought payment of the sum of £57,566.73 said to be remaining due to him when employed by the defenders and respondents from 2000-2002.

Counsel for the appellant sought recall of the Sheriff’s interlocutor dismissing the cause and for the cause to be remitted to the Sheriff, on the basis that his decision was clearly wrong and manifestly inequitable. The Sheriff had failed to take into account the respondents’ behaviour and conduct of the proceedings and had taken into account several irrelevant factors. It was accepted the Sheriff was correct to hold that there had been inordinate and inexcusable delay on the part of the appellant, however submissions were made in respect of the question of fairness. It was submitted that the appellant’s solicitor’s statement before the Sheriff that the action could not proceed without further amendment had weighed heavily with the Sheriff. However, the appellant proposed to proceed on the basis of the existing amended record which was lodged on 17 August 2005 and the respondents accordingly had notification of the appellant’s case. It was accepted that the submissions at appeal bore little relationship to those placed before the Sheriff. It was submitted that, as a result of the decision not to proceed with a further Minute of Amendment, the issues to be considered at proof had been before the respondents since August 2005. There was no prejudice to the defenders by the lapse of time. It could not be said that there was substantial risk that a fair trial was impossible.

The respondents submitted that the Sheriff had properly concluded that they would be disadvantaged in trying to present their defence in a case of which they had not received notice, some 10 years after the event. The issue was exacerbated by the desire for further amendment, however that was not essential to the Sheriff’s decision and was considered after he had made the decision on fairness. In the circumstances, the Sheriff had exercised his discretion reasonably in concluding that there was a substantial risk that a fair trial would be impossible.

Having heard submissions, the Sheriff Principal noted that he did not consider the Sheriff to have relied on the fact of the anticipated need for future amendment by the appellant in reaching his decision. While the amendment question was compelling, the Sheriff had reached his conclusion before considering the question of amendment, and he had been correct to do so. The case could be distinguished from others which, unlike the present case, involved detailed reliable medical records which could provide the basis of any expert testimony to be led. The Sheriff was correct to reach the view that there was a substantial risk that a fair trial was not possible.

In refusing the appeal, the Sheriff Principal also commented on the substantial amount of court time which had already been taking up by the case and the effect of delay on other court business. The appellant was found liable to the respondents in the expenses of the appeal, which was certified as suitable for the employment of counsel.

Santander v. David Gallagher (AKA Gallacher), Sheriff Mackie, Edinburgh Sheriff Court, 26th July 2011

Thu, 18 Aug 2011 15:45:00 GMT

Parties and Background
The pursuer was the bank Santander which had granted a standard security in favour of the defender, David Gallagher. This case concerned a calling up notice which the bank had attempted to serve on the defender in February 2011 in terms of section 19(1) of the Conveyancing and Feudal Reform (Scotland) Act 1970. Sheriff Officers had been instructed by the bank to serve the notice. After being unable to effect personal service, an Officer posted the notice through the letter box of Mr Gallagher’s property. A hearing was fixed for 1st July 2011. Mr Gallagher did not appear at the hearing. The action was continued until 15th July 2011 to allow the pursuer to produce documentation in support of the application.

Parties’ Submissions
The pursuer submitted that the mode of service employed in this case satisfied the requirement of s19(6) of the 1970 Act to make "delivery to the person on whom it is desired to be served". If Parliament had intended that personal service was required the word "personally" would have been used.

Decision
The sheriff dismissed the application. The Sheriff Court Rules provide that service of any document may be by recorded delivery. However, in the case of a calling up notice Sheriff Officers are not acting in their official function in terms of the Act of Sederunt (Messengers at Arms etc) Sheriff Court Rules 1991. Recorded delivery was not a method of delivery open to them. In this case service did not comply with s.19 therefore the calling up notice had not been served competently on the defender.

Neil Henderson Douglas and Others v. Hilary Anne Barrowman MacAndrew and Another, Sheriff Philip Mann, Banff Sheriff Court, 29th July 2011

Thu, 18 Aug 2011 14:50:00 GMT

Parties and Background
The pursuers were beneficiaries of the estate of the late Leslie Sydney Henderson. The defenders were the executors of the estate. The first defender was a solicitor and the second was an individual. The pursuers sought details of estate accounts and payments from the estate.

Decree was granted in favour of the pursuers in September 2002. The defenders were instructed to produce a full account of their involvement in the estate. A full account was eventually produced and the case was sisted several times for settlement and to allow time for objections. The final sist was granted in January 2005. The case called in court again in May 2011, by which time the estate had been would up and settlement made. The second defender was, by then, deceased. However, the matter of expenses remained in dispute between the parties.

Parties’ Submissions
The pursuers argued that expenses should be awarded against the first defender personally. She would then be able to claim on the estate of the second defender. They also moved for certification of the cause as suitable for the employment of counsel. Counsel acted as a barrier between acting solicitors and the defender (also a solicitor).

The first defender submitted that expenses should be awarded against both executors. She also argued that the pursuers' motion to certify the case for counsel came too late and in any event that there was nothing particularly complex about the action such as would justify the employment of counsel.

Decision
The sheriff dismissed the case against the defenders and decided the question of expenses. He held the first defender liable for the expenses of the cause up until the 28th January 2003. Thereafter no expenses were due to or by either party. He refused the pursuers’ motion to sanction the case as suitable for the employment of counsel.

Aberdeen Council v Bruce Plant Limited, Sheriff Philip Mann, Banff Sheriff Court, 11 April 2010

Wed, 25 May 2011 20:10:00 GMT

In this action for payment, the pursuers' four craves (numbered 1-4), supported by articles of condescendence (numbered 3-6), each claimed payment of sums due in respect of contracts for road construction works carried out by the pursuers as subcontractors acting on the defenders’ instructions. This Note was prepared following a debate on the defenders’ preliminary plea to the relevancy and specification of the pursuers’ averments.

It was submitted for the defenders that in respect of each of the craves, the supporting article of condescendence disclosed that the pursuers founded their case on documents which they had failed to produce. The documents were not incorporated into the pursuers' pleadings, so it was not possible to look to them for specification of the work contracted for or the method of measuring its value. The pursuers' pleadings were so lacking in specification that they did not give fair notice to the defenders and were thus irrelevant. Further, the documents had not been lodged as productions, in breach of the ordinary cause rules. The Sheriff was moved to sustain the defenders’ preliminary plea and to dismiss the action.

It was acknowledged in submissions for the pursuers that there was ‘force’ in the defenders’ submissions regarding craves 1, 2 and 3 and their supporting articles of condescendence. In respect of crave 4, the position was different. Article 6 of condescendence detailed the work carried out by the pursuers and how the amount claimed in crave 4 was calculated, based on a letter from the defenders to the pursuers which had been produced by way of the pursuers' third inventory of productions and "referred to for its terms" in article 6. The Sheriff was moved to repel the defenders’ preliminary plea and to fix a proof.

The Sheriff considered that in respect of craves 1, 2 and 3, the pursuers rested their case on documents which they did not produce or incorporate into their pleadings. The pursuers’ had conceded that the defenders' criticisms were well founded and the preliminary plea should therefore be upheld in relation to those craves. In respect of crave 4 and the relative article 6, the Sheriff did not think that reference to a document "for its terms" amounted to its incorporation into pleadings and therefore he was not entitled to look at it in assessing the relevancy of the pursuers' averments. Looking to the terms of article 6, however, the Sheriff considered there to be a significant amount of specification sufficient in its terms to give fair notice to the defenders of the basis of the pursuers’ claim.

The Sheriff sustained the defenders' preliminary plea but to the extent only of excluding from probation articles 3, 4 and 5 of condescendence and dismissing the pursuers' craves 1, 2 and 3. Otherwise, the parties were entitled to a proof, which parties agreed should be a proof de plano. The Sheriff accordingly allowed a proof of parties’ averments in respect of crave 4. The question of expenses of the debate was reserved and the cause continued to a procedural hearing to fix a date for proof and hear parties on expenses.

Sheila Davies and Maureen Mowat v. The Scottish Commission for the Regulation of Care, Sheriff Principal Sir Stephen Young Bt QC, Aberdeen Sheriff Court, 9 May 2011

Mon, 16 May 2011 10:42:00 GMT

Parties and Background:
The pursuers (and appellants) operated a nursery in Aberdeen. The defenders (and respondents) were designed as the Scottish Commission for the Regulation of Care, constituted as a body corporate in terms of section 1(1) of the Regulation of Care (Scotland) Act 2001. The pursuers were required, under s.7 of the 2001 Act, to register their nursery with the defenders.

In March 2008 the Commission, having concerns about the management of the nursery, served an improvement notice on the pursuers in terms of s.10 of the 2001 Act. These concerns were disputed by the pursuers. In August 2008 the Commission cancelled registration of the nursery. The pursuers appealed against this decision in court in September 2008.

Parties’ Submissions:
The pursuers argued that the Commission no longer existed. It had been dissolved and replaced by Social Care and Social Work Improvement Scotland (SCSWIS). SCSWIS had no title or interest to enter the proceedings therefore the decision of the Commission to cancel the registration was null. This was disputed by the defenders.

Decision:
The sheriff principal found for the pursuers and held that the Scottish Commission for the Regulation of Care no longer existed, having been dissolved on 1 April 2011 in terms of section 52 of the Public Services Reform (Scotland) Act 2010. It was replaced by SCSWIS which had no title or interest to enter proceedings. The decision of the commission was therefore a nullity and had no effect. The sheriff principal also removed a condition imposed by the Commission in 2007 whereby the first named pursuer, Mrs Sheila Davies, was not to have contact with, or access to, children enrolled or enrolling at the All Stars Nursery.

Thomson Roddick & Laurie Limited v Katalyst Projects Limited, Temporary Sheriff Principal Charles Norman Stoddart, Dumfries Sheriff Court, 18 March 2011

Fri, 13 May 2011 20:04:00 GMT

In this action, the pursuers sought implement of missives of sale concluded with the defenders; failing which they sought an award of damages. In the Sheriff’s interlocutor of 5 August, he found the pursuers entitled to implement and continued the case so parties could be heard on further procedure. On 19 August, before any further hearing, the defenders sought to appeal without leave. On 16 September, the Sheriff Principal refused the appeal as incompetent, on the ground that no decree ‘refusing proof’ had yet been pronounced. The case was remitted to the Sheriff who heard parties again on 30 September and pronounced an interlocutor. The first part, prefaced by the words ‘of consent’, comprised (i) an order on the defenders for implement of the missives (ii) a continuation sine die of the pursuers’ alternative crave for damages and (iii) a warrant for inhibition on the dependence of the action. The second part dealt with expenses. The defenders’ agents withdrew from acting and on 13 October, new agents lodged a Note of Appeal seeking to challenge the Sheriff’s decision. On 29 October, the Sheriff produced a Note to his interlocutor of 30 September, discussing inter alia the present appeal, and concluded that it was incompetent. When the defenders became aware of the Note in December 2010, they immediately lodged a motion seeking a ruling as to the competency of the appeal; and if it was not competent, seeking alternative remedies so that it might be heard. The motion was opposed.

It was submitted for the defenders that the words ‘of consent’ in the Sheriff’s interlocutor should not be construed as meaning the defenders accepted implement should be granted, but as an acknowledgement that, given the terms of the interlocutor of 5 August, they had no alternative but to acquiesce in the grant of decree. The defenders agreement of a period for implement was merely procedural. The Sheriff should not have used the expression ‘of consent’, and those words should not be construed as excluding the right to appeal without leave. Alternatively it was submitted, relying on obiter dicta in McCue v Scottish Daily Record and Sunday Mail Ltd 1998 SC 811, that use of the phrase did not render the appeal incompetent, but meant the Sheriff Principal had a discretion to allow it to proceed.

It was submitted for the pursuers that the appeal was not competent and part 1 of the motion should be refused. The dicta in McCue relied upon by the defenders were obiter, and several authorities indicated that an interlocutor pronounced of consent could not be appealed.

The Sheriff Principal considered that in respect of competency, the substance of the Sheriff’s interlocutor was important, rather than its procedural consequences. The parties had consented to an interlocutor allowing eight weeks for implement, not decree for implement. In agreeing the terms of the interlocutor, the defenders were bowing to the consequences of an adverse judgement, and the words ‘of consent’ should be read in that light (although it was unfortunate they were used at all). The Sheriff Principal did not accept that the defenders had abandoned or waived their rights of appeal and was in no doubt that the appeal should be countenanced. The dicta in McCue carried the authority of a Full Bench and the issue was not one of competency, in which case it could only be a matter of discretion whether the appeal could be taken. In the Sheriff Principal’s view, that discretion should be exercised in favour of the defenders.

The Sheriff Principal granted part 1 of the defenders’ motion, holding that the proposed appeal was competent, with a diet to be assigned for the hearing of its merits. The pursuers were found liable to the defenders in the expenses of the motion.

The Hamilton School v. The William Cowie Partnership, Sheriff Philip Mann, Aberdeen Sheriff Court, 24th February 2011

Sat, 16 Apr 2011 09:11:00 GMT

The pursuers were an independent primary school in Aberdeen. The defenders were a firm of architects which had been engaged to carry out alterations and extensions to the school premises. The pursuers sought damages from the defenders for breach of contract and negligence in the performance of the contract.

This was an amendment hearing at which the pursuers moved to allow the record to be opened and amended. The defenders opposed the motion. In addition, they moved that, if the pursuers’ motion were granted, the defenders should be permitted to lodge a preliminary plea as to specification and relevancy of the pleadings.

Parties’ Submissions
The defenders opposed the pursuers’ motion on two grounds; that the amendments were lodged late and that they introduced new grounds of action which were time barred. The proposed amendment went beyond legitimate development of what was already pled by the pursuers and introduced several new breaches of duty.

The pursuers submitted that what prescribed were obligations, not the heads of damage arising from their breach. The amendment should not be disallowed unless it proposed a radical and fundamental change in the pursuers' case. A distinction should be drawn between that and an elaboration of what was already pled.

Decision
The sheriff allowed the pursuers’ amendment. The amendment was not late and it did not introduce new grounds but simply expanded upon the case that was already pled. The defenders’ motion to allow a preliminary plea to be entered was also granted. A hearing was fixed to determine further procedure.

Secretary of State for Work and Pensions, Child Support Agency v Steven O’Donnell, Sheriff Principal C G McKay, Dumfries Sheriff Court, 11 November 2010

Mon, 21 Mar 2011 11:10:00 GMT

This was an appeal against a Sheriff’s decision in respect of a summary application under section 39A of the Child Support Act 1991. In his judgment of 12 November 2009, the Sheriff dismissed the action and at a hearing on expenses on 26 November 2009, found no expenses due. The pursuers appealed against those interlocutors and challenged several of the Sheriff’s findings.

It was submitted for the appellants that there were two substantial issues in the appeal; firstly, the point in time at which the Sheriff was to determine whether the defendant had wilfully refused or culpably neglected to pay sums due under a liability order, and secondly, the competency of continuations of a summary application. It was argued the Sheriff relied on an irrelevant authority, Cain v McColm (1892) 19R 813, in finding that continuations were incompetent.

Counsel for the respondent argued that the real question regarding the issue of continuations was whether the Sheriff had adopted a fair procedure and allowed the parties to make submissions on the principles of Cain. On the issue of the relevant point in time, it was submitted that the Sheriff had considered the whole period to the date of inquiry but then dismissed the period after the date of first calling as irrelevant.

The Sheriff Principal accepted there were two important issues in the appeal, as identified by the appellants. He noted that the Sheriff’s approach to the present case was unique in Scotland. All previous cases involved continuations and focused on the date of inquiry as the date at which the determination should be made. In the Sheriff Principal’s view, Cain was not relevant to section 39A applications as it dealt with procedure established under legislation which was no longer applicable to such applications. The Sheriff Principal considered that, in light of the relevant provisions of the current legislation, continuations could not be incompetent, although they may be undesirable. The Sheriff Principal was also satisfied the Sheriff was wrong to have disregarded the period after the date of the first calling.

The Sheriff Principal remarked that the Sheriff's use of a second Note to critique the Note of Appeal and justify his decision was inappropriate. The practice of commenting on a Note of Appeal in civil matters was to be discouraged, except in an appeal by stated case or where the Sheriff is invited by the appeal court to provide further explanation, or otherwise has the cause remitted to him.

The Sheriff Principal allowed the appeal, recalling the Sheriff's interlocutors and finding the appellants entitled to the expenses of the appeal. The case was remitted to the Sheriff to proceed, and the Sheriff Clerk directed to assign the cause to a different Sheriff for all further procedure.

Child Maintenance & Enforcement Commission v Julian Davies, Sheriff Principal C G McKay, Dumfries Sheriff Court, 11 November 2010

Sat, 05 Mar 2011 22:35:00 GMT

This was an appeal against a Sheriff’s decision in respect of a summary application under section 39A of the Child Support Act 1991. On 26 November 2009, the Sheriff refused the pursuers’ motion for a warrant for arrest of the defender (in terms of Rule 5B(1)(b) of the Act of Sederunt (Child Support Rules) 1993) and ex proprio motu dismissed the case, finding no expenses due. The pursuers appealed on the grounds that the Sheriff erred in law in refusing to grant warrant for arrest, dismissing the application without allowing a mandatory inquiry, and failing to permit the pursuers’ agent to make representations on expenses upon refusing the warrant.

Submissions were made for the appellants regarding the history of the case, including several attempts to effect service on the defender and a number of continuations which, it was argued, reflected no failings by the appellants. Several aspects of the Sheriff’s note were challenged, including reference to Cook v Wallace & Wilson (1889) 16R 565 as authority for the proposition that the warrant sought would be illegal. The Sheriff’s argument that the warrant would offend against the defender’s rights under Article 5(1) ECHR was also disputed. Further, it was argued that in considering a section 39A application, the court was required to inquire as to the debtor’s ‘needs’ and circumstances and the warrant was necessary to effect that inquiry. It was also submitted that the factors the Sheriff considered in exercising his discretion were irrelevant.

The Sheriff Principal was satisfied that the appellants’ submissions were well-founded. He noted the Sheriff failed to hold a mandatory inquiry before dismissing the case. That requirement could not be avoided by refusing a warrant for arrest when it appeared to be the only way to bring the debtor before court. While the Sheriff’s frustration at the duration of the process was understandable, the defender was to blame for the delays. In the event of difficulties in bringing the defender before court by citation, a warrant under Rule 5B(1)(b) of the 1993 Rules was appropriate. The Sheriff’s argument regarding the illegality of such a warrant was rejected, and the authority cited deemed irrelevant. The Sheriff’s arguments concerning Article 5 and Article 6 ECHR were also rejected. Further, the Sheriff Principal suggested continuations in the process were as much the court’s responsibility as the pursuers’ and should the court intend to expedite the progress of summary applications, that must be made clear to the parties from the outset.

The Sheriff Principal allowed the appeal, recalling the Sheriff’s interlocutor of 26 November 2009 and granting warrant for arrest of the defender. The appellants’ motion for expenses was refused.

Mario Alberto Tabra Guerrero & 30 Ors v Monterrico Metals PLC: Menandro Neyra Caucha & Anor v Monterrico Metals Plc & Anor, QBD, 15/12/10

Thu, 03 Feb 2011 22:46:17 GMT

A Master Was Entitled To Have Allowed Claimants to Amend Their Particulars Of Claim

Raymond Allan Sinclair McGregor v. Alpha Airports Group plc [2010] CSOH 137

Wed, 06 Oct 2010 19:24:35 GMT

Motion for caution:- The pursuer, a party litigant, sought damages of £383,500 in respect of an injury, allegedly sustained during the course of his work for the defenders in June 2003. The pursuer averred that he was carrying two cases of juice cartons which weighed around 12 kilograms each and that as a result, he felt pain in his back which caused him loss, injury and damage. The continuing loss, injury and damage were said to include continuing acute back pain, urinary infections and deterioration in his psychiatric condition.

The defenders sought caution in this motion, for the sum of £25,000, following several previous proof dates having been discharged due to the pursuer’s lack of readiness to plead the case stated on record. A previous motion for caution of £1,000 had already been granted in April 2010, on the grounds of the pursuer’s impecuniosity and the lack of merit in his case on record.

Counsel for the defenders submitted that before granting further caution, the court must be satisfied that a party is impecunious, and moreover, there must be additional exceptional circumstances to justify the granting of caution. In considering whether such exceptional circumstances exist in any case, counsel submitted that the court was entitled to ask whether or not the case being advanced has serious merit. Counsel submitted that the pursuer’s case was devoid of merit, based on his lack of expert and medical witnesses to support his averments. The court agreed with this submission, further noting that the pursuer sought to plead a case which was not on record, and accordingly, his case was fundamentally without merit. Noting that the defenders had already been put to considerable expense in this action, the Lord Ordinary granted caution for £20,000 and allowed 28 days for that sum to be found.

Biddle & Co (A Firm) v. Tetra Pak Ltd & Ors, Ch, 21/1/10

Wed, 24 Feb 2010 21:56:31 GMT

Claimant Permitted To Serve Separate Particulars Of Claim On Different Defendants Based On Different Causes Of Action

Lockheed Martin Group v Willis Group Ltd [2009] EWHC 1436 (QB) (09 June 2009)

Mon, 02 Nov 2009 10:27:28 GMT

Beatson J set aside the Master’s order substituting two new Defendants for the original Defendant after the expiry of the limitation period. As to one of the substituted Defendants, the Claimant did not have the requisite intention to sue that party at the time the claim form was issued. Although the Claimant could be said to have made a mistake as to name in respect of the other substituted party, the mistake was misleading in that it caused reasonable doubt as to the identity of the party intended to be sued. In setting aside the substitution order, it was said to be relevant that the Claimant had not been able to formulate particulars of claim at the time proceedings were issued.

Napoli v Stone – Portree Sheriff Court, 16 September 2009

Thu, 29 Oct 2009 20:00:30 GMT

The Pursuer raised a small claim action for payment and the Defender stated both a defence and a counter claim. The case called in court on several times and at a continued calling the Sheriff decided to deal with the counter claim on the basis of the information available. He did not consider it necessary to hear evidence and decided to dismiss the counter claim and to allow the principal action and defence to proceed. The Defender appealed that decision to the Sheriff Principal. Although the question that the Sheriff Principal was asked to consider was whether the Sheriff had erred in dismissing the counter claim, the Sheriff Principal questioned whether the Appeal was competent in view of the provisions of section 38 of the Sheriff Courts (Scotland) Act 1971. That section allows an appeal to the Sheriff Principal on any point of law from the final judgement of the Sheriff. Section 3(h) of the 1907 Act provides that ""Final judgment" means an interlocutor which, by itself, or taken along with previous interlocutors, disposes of the subject-matter of the cause...".The Defender submitted that the Sheriff's decision to dismiss the counterclaim should be regarded as a final judgement. The Sheriff Principal decided that the counterclaim was only one part of the action, as were his defence and the Pursuer's claim, and, on that basis, the Sheriff's decision to dismiss the counterclaim did not have the effect of disposing of the subject matter of the cause. It only disposed of part of the subject matter and so was not a final judgment within the meaning of section 3(h) of the 1907 Act.

Marston Plc. v. Charman, CA, 29/4/09

Tue, 28 Apr 2009 22:00:00 GMT

Judge Could Not Unilaterally Order Defendant to Make a Payment In: The Court of Appeal held that, although delays complying with court orders could not be tolerated, a judge had acted in excess of his case management powers by ordering, of his own motion, that a defendant pay a large sum of money into court on the basis that he had failed to respond timeously to earlier court directions. The Defendant submitted that it would have such difficulty in raising the requisite sums that the judge’s imposition effectively amounted to summary judgment on the claim. In the circumstances, the judge’s action had been unfair, disproportionate, unnecessary and generally unhelpful to the timely dispatch of the case, and a proportionate use of a more flexible power would have been appropriate.

Bank of Scotland v Ross Bradbury – Edinburgh Sheriff Court, 21 January 2009

Thu, 05 Mar 2009 19:49:00 GMT

In an action for recovery of possession of heritable property a Proof before Answer began in November 2001 before Sheriff Bell. Sheriff Bell retired in 2004 on medical grounds and was unfit for further duty. In these circumstances, it had to be decided whether the Sheriff who would hear the further Proof could have regard to the notes of the evidence already heard by Sheriff Bell and could continue from that point, or whether the case should be heard again from the beginning. An application had to be made to the Sheriff Principal for directions as to further procedure. The Sheriff Principal indicated that there was no reason why such directions should not give the Sheriff who takes over the Proof the ultimate decision on whether to proceed on the extended notes of evidence or whether to start afresh. He did not think that the consent of the parties ought to be essential for the case to proceed in front of another Sheriff based on the notes of evidence. Much would depend on the nature of the evidence that had already been heard. In the present case, the Sheriff Principal assigned a diet for a Proof before Answer before a new Sheriff and he left it to the Sheriff to determine whether the evidence should be heard afresh or whether the extended notes would be relied on. That decision was to be made at a procedural diet before the PBA.

Bank of Scotland v Ross Bradbury – Edinburgh Sheriff Court, 21 January 2009

Thu, 05 Mar 2009 19:49:00 GMT

Whiteford v SP Power Systems Limited – Stranraer Sheriff Court, 19 August 2008

Wed, 21 Jan 2009 19:33:00 GMT

The Pursuer/Appellant appealed the Sheriff’s interlocutor dismissing the action at the Options Hearing. Before the Options Hearing, the parties had agreed that the Hearing should be discharged and the case sisted for investigations. The Solicitors acting for the Defenders/Respondents agreed to instruct their local agents to appear on behalf of both parties at the Options Hearing. The local agents passed the instructions to another firm of Solicitors who appeared only on behalf of the Defenders. On that basis, it had appeared to the Sheriff that there was no appearance on behalf of the Pursuer and, as no Record had been lodged, the Sheriff dismissed the action. The Sheriff Principal indicated, however, that, had the Solicitor appearing on behalf of the Defenders realised that he was instructed to appear for both parties, he could have taken steps to find out why a Record had not been lodged. It appeared that this had been due to an oversight and, in the Sheriff Principal’s opinion, a Sheriff acting reasonably would have granted relief from OCR Rule 9.11, which obliges the Pursuer to lodge a certified copy of the Record in Process no later than 2 days before the Options Hearing. The parties jointly moved the Sheriff Principal to allow the Record to be received although late, to allow the appeal and to remit the cause to the Sheriff for further procedure. The Sheriff Principal agreed to do so. He formed the impression from the Sheriff’s Note that it was the custom of the resident Sheriff to dismiss actions without exception if a certified Record was not lodged in terms of Rule 9.11. If that was the case, the Sheriff Principal expressly disapproved of that practice. In that situation, the Sheriff should ascertain why the Record had not been lodged. Only if he was not satisfied with any explanation offered should he consider exercising his discretion and dismissing the action. The parties were not able to agree on the question of expenses in connection with the appeal procedure. After the Sheriff had dismissed the action, the Pursuer's Solicitors had raised a second action as they had not appreciated that they could appeal the Sheriff’s interlocuter. The Sheriff Principal considered the exchange of emails between the agents for both parties in relation to the issue of expenses. The Defenders argued that there should no expenses due to or by either party in respect of the appeal. The Pursuer argued that expenses should be awarded in favour of the Pursuer and, if not, they should be expenses in the cause. In the particular circumstances of this case, the Sheriff Principal decided that it would be appropriate to award no expenses due to or by either party in respect of the appeal.

Craig Moore v. The Scottish Daily Record and Sunday Mail Limited [2008] CSIH 66

Wed, 10 Dec 2008 07:27:00 GMT

On 19 March the case was called before the Extra Division when the parties lodged a joint minute disposing of the action. Both parties agreed that no expenses should be found due to or by either party. Here the question arose as to whether the court should make an order against either or both of the parties of the kind made by the First Division in Billig and Anr v The Council of the Law Society of Scotland. The Extra Division remitted the case to a court of five judges to consider the competency of making such an order. Here the court considered the opinion of the court in Billig delivered by the Lord President where the court commented on the disruption caused by late settlements and its impact on the court and on other litigants when it was considered that the order for payment was granted on the basis that the petitioners had committed an abuse of process. Here the court considered whether that order was ultra vires and whether the decision in Billig should be overruled.

Aberdeen City Council v Rage Electronics Limited – Aberdeen Sheriff Court, 6 November 2008

Thu, 04 Dec 2008 15:21:00 GMT

A Sheriff Officer applied for an order against a third party under Section 21(11) of the Debt Arrangement and Attachment (Sc) Act 2002 to have a sum consigned into Court. The creditor, Aberdeen City Council, had obtained a summary warrant against the debtor, Rage Electronics Limited, and had instructed Sheriff Officers to execute an attachment of goods at the debtor’s premises. Before the items were uplifted from the premises, it was discovered that a significant number of the goods were no longer there. There was evidence that the third party, the landlord of the premises, had removed items from the premises, although he denied doing so. The third party had a preliminary plea that the application was irrelevant as it did not state whether the goods had been damaged, destroyed, lost or stolen and such an averment was required in terms of s.21(11). The Sheriff repelled this plea on the basis that there was no requirement for the Sheriff Officer to include such an averment if the goods had been removed and couldn’t be found. Having heard evidence, the Sheriff concluded that the third party had indeed removed attached goods from the premises and that he had been aware that the goods were subject to an attachment. There was no information about the whereabouts of the removed items. The Sheriff concluded that the goods had been lost and that the third party was in breach of the attachment. He granted the application and the third party was required to consign the value of the goods in Court in terms of Sections 22(11) and (12)(2) of 2002 Act.

Abela v. Hammonds Suddards, ChD, 2/12/08

Tue, 02 Dec 2008 11:07:00 GMT

Application for Strike Out Should Not Involve a “Mini Trial”
Paul Girolami QC held that, for the purposes of whether a claim had “real prospects of success” for the purpose of an application to strike out part of a defence, it was important that there should not be a “mini trial” that would usurp the function of the trial judge and lead to potentially unsafe conclusions being reached on the documents only without the aid of cross-examination. If, on an appropriate detailed analysis, the allegations in issue could be seen with confidence to be without substance, then they should be struck out. However, in the present case another information had been provided that it was unrealistic to suggest that there was no real prospect of the defence being made out.

Pitcher v. Headstart Nursery Ltd. v. QBD, 7/11/08

Fri, 07 Nov 2008 00:00:00 GMT

Court Should Look at Value of Claim and Periodical Payments When Awarding Interim Payment: Judge Reddihough held that, when assessing the amount of a further interim payment to be made in a personal injury claim, it was appropriate to make reference to the likely awards for PSLA, past losses and expenses and future losses that might be capitalised. As the Claimant’s Schedule of Losses was not an unreasonable attempt to quantify his losses, it was appropriate for the Court to consider it. It would not be appropriate to assume that the entirety of the future losses would be capitalised because to do so would unduly fetter the trial judge’s discretion.

F.M. Finnieston Ltd v. Kenneth Ross [2008] CSOH 153

Thu, 06 Nov 2008 10:48:00 GMT

Caution:- On 1 October 2008, the pursuers were ordered to find caution for expenses for £25,000 within 21 days "in a form to be agreed between the parties, which failing the case to be brought back to court in order that said form be decided by the court". Here the pursuers argued that caution should be given by their placing the sum of £25,000 in a joint deposit account in the names of solicitors acting for both parties pending decree or settlement. On behalf of the defenders concerns were raised as to whether the pursuers’ proposal would offer adequate security in the event of an arrestment at the hands of a creditor in the event of the pursuers' insolvency. It was submitted that a bond of caution should be given or the sum should be consigned into court in accordance with Rule of Court 33.4(1)(b). Here the court considered the question in light of the Practice Note dated 30 May 1996 which stated that all monies consigned under orders of court in the name of the Accountant of Court shall be placed on special deposit account to be held solely by the Royal Bank of Scotland, North Bridge branch, Edinburgh. Here the court considered whether, notwithstanding the Practice Note, the court could order the Accountant of Court to place the funds consigned into court in a particular account earning a higher rate of interest once the details of that account had been agreed between solicitors for the parties in a form satisfactory to the Accountant of Court.

Law Society of England and Wales & Ors v Wemyss & Ors [2008] EWHC 2515 (Ch) (23 October 2008)

Thu, 23 Oct 2008 00:00:00 GMT

The Nature of the Cause of Action Not Integral to the Concept of a Counterclaim: Norris J. allowed an insurance company, who had been joined to the action on a limited basis due to the main defendant being bankrupt, to bring a counterclaim out of time within the meaning of section 35(3) of the Limitation Act 1980. The Claimant had argued that the claim was incapable of being a counterclaim because it had not amended its claim to make any allegations against the insurance company that the claim could counter. It was held, however, that section 35(3) referred to any claim brought by an existing claimant against an existing defendant, all that was necessary was that the other party was on the other side of the record. The nature of the cause of action upon which the counterclaim was founded was not integral to the concept of a counterclaim.

THE ROYAL BANK OF SCOTLAND PLC v WILLIAM HAUGHEY, JOHN McGUINNESS and DOMINIC KEANE [2008] CSOH 142

Thu, 09 Oct 2008 13:27:00 GMT

Debate-at instance of pursuers. Their plea was to the relevancy and specification of certain averments made by the first defender. Action for recovery of £1,190,921.49 from the defenders jointly and severally as a partnership, arising out of borrowings. The first defender avered that he was not in partnership. He made several averments about the third defender. He avered that the third defender had committed fraud against the pursuers by use of accounts in the names of Edmund Keane and Jimmy Jones and that he had done so with the knowledge and collusion of employees of the pursuers, who had acted fraudulently. Discussed, whether allowing such averments would raise collateral issues which were too remote properly to assist in deciding the issue in this case. Whether, if proved, these would add to the proof of the first defender.

Kevan Smith Ltd v Tevendale – Aberdeen Sheriff Court, 2 September 2008

Thu, 09 Oct 2008 10:31:00 GMT

The Pursuers/Respondents raised proceedings against the Defender/Appellant for payment of two sums. The Pursuers adjusted their pleadings, eventually reducing the amount sued for significantly. They did not formally amend the craves, however, although they lodged a Record in which the craves reflected the reduced sum sued for. The Defender's solicitors withdrew from acting and there was no appearance by or on behalf of the Defender at the peremptory diet. The Sheriff granted Decree by default in terms of the craves in the original writ and the Sheriff Clerk issued an extract of the interlocutor from the peremptory diet. The Pursuers' solicitors then advised the Sheriff Clerk that the extract Decree was incorrect. The Defender lodged a Note of Appeal and a motion seeking leave to mark an appeal, although late, in terms of Rule 2.1 of the OCR. This was opposed by the Pursuers. The Sheriff Principal had to consider whether it was competent for him to grant the motion, in view of the fact that the interlocutor from the peremptory diet had been extracted before the Note of Appeal and motion had been lodged. The Defender argued that an appeal would be competent because the extract had not been properly issued as the Pursuers had failed to amend the sum sued for before seeking Decree by default. It would be inequitable for the Pursuers to obtain the benefit of that extract Decree. If the extract had been issued irregularly, this would entitle the Sheriff Principal to exercise his dispensing power to allow the appeal to be marked late. The Sheriff Principal refused the Defender's motion. It was not argued that the Sheriff had erred in granting Decree by default in terms of the original craves of the initial writ and the extract which was subsequently issued reflected the terms of the Decree accurately. In those circumstances, it could not be said that the Sheriff’s interlocutor or the extract had been issued improperly or incompetently and the decision in the case of Alloa Brewery Company Ltd v Parker 1991 SCLR 70 had to be followed. It was held in that case that it was not competent to allow an appeal to proceed after Decree had been extracted. The Court of Session had affirmed this decision. The Sheriff Principal noted that the Pursuers’ solicitor stated explicitly that the Pursuers would only seek to enforce the extract Decree for the sum actually due. Even if it had been competent to grant the Defender’s motion, the Sheriff Principal would not have considered it appropriate to exercise the dispensing power to relieve him of the consequences of his failure to lodge an appeal in time. The Defender not shown that his failure was due to a mistake, oversight or other excusable delay. He had been well aware of the proceedings but he had not kept in touch with his solicitors for a period of several months and, even after receiving the letter advising of the peremptory diet, he had done nothing.

Mhairi Nicol v Nine Regions Ltd – Greenock Sheriff Court, 12th September 2008

Thu, 25 Sep 2008 08:27:00 GMT

The Pursuer entered into a hire purchase agreement with the Defenders in relation to a car. 3 months later she signed a Trust Deed. She then raised proceedings seeking an order in terms of the Consumer Credit Act 1974, section 140B(1)(e) to set aside the duties imposed on her under the hire purchase agreement, including repayment of the sums she had paid and the return of ownership of the car to her. The Defenders counterclaimed for delivery of the car and for interdict to prevent the Pursuer disposing of the car. At a debate the Defenders argued that the Pursuer had no title to pursue the action. It was not in dispute that the Pursuer had not sought the consent of her Trustee before raising of the action. She claimed, however, that the Trustee had abandoned any right she may have had and that the Pursuer was entitled to pursue the action. The Defenders contended that, as at the date on which the Pursuer had signed the Trust Deed, her right to raise proceedings against the Defenders had been assigned to her Trustee. Although there were certain types of action that the Pursuer could pursue independently of her Trustee, the present action did not fall into any of the relevant categories. In raising the action the Pursuer was acting in competition with her creditors and Trustee. Neither party had found any reported cases dealing with the issue of title to sue when a Trust Deed was involved but both accepted that the situation was analogous to sequestration. The Sheriff found in favour of the Defenders. He considered the terms of the Trust Deed and the Bankruptcy (Sc) Act 1985, sections 31-33. Although the Trustee had confirmed that she did not intend to take part in the proceedings, that was not the same as saying that she had abandoned her entitlement to pursue a claim under the 1974 Act. Indeed, the terms of e-mails from the Trustee made it clear that she had not abandoned her right to pursue the matter. Even if this was not correct, the Sheriff was of the view that the action must fail as it would not be appropriate for the Pursuer to obtain consent from her Trustee or to argue that she had abandoned her right after proceedings had been raised. The Pursuer had no title to sue her action was dismissed. The parties had agreed that part of the counterclaim should be granted of consent.

Snowie v Stirling Council and The Ramblers Association – Stirling Sheriff Court, 11 July 2008

Wed, 27 Aug 2008 16:53:00 GMT

This decision concerned the issue of expenses following the Sheriff’s decision on 23 April 2008 (see Casecheck summary). The First Defenders sought the expenses of the action against the Pursuers on an agent/client basis, rather than a party/party basis, arguing that the conduct of the litigation was such that expenses should not be restricted to the judicial scale. They put forward a number of arguments in support of this motion. It was submitted that the Defenders had tried to resolve matters from an early stage and had continued to negotiate even during the Proof. The First Pursuer’s evidence suggested that he had been intransigent. The general conduct of the litigation had been unreasonable and indicated an attitude of “gamesmanship” on the Pursuers' part. The Pursuers had taken steps, possibly to frustrate the litigation, and this had interrupted the progress of the action. Reference was made to the decision in McKie v Scottish Ministers 2006 SC528 in which Lord Hodge laid down 5 propositions in relation to assessing whether expenses should be awarded on a higher scale. The First Defenders’ argument was adopted on behalf of the Second Defenders. The Pursuers’ primary submission was that the Court should find no expenses due to or by either party. If the Pursuers were found liable for the expenses, they should only be found liable for the expenses of the First Defenders and on a party/party scale. The fact that a party came into Court vigorously asserting his position and called a witness on his behalf whose evidence was not ultimately accepted did not make the proceedings unreasonable. The Pursuers disputed that their conduct had been in any way unreasonable. They argued that there should not be an award of expenses in favour of the Second Defenders on the basis that, where the interests of parties sit together and are not distinguishable, there should be no duplication of the award of expenses. The Sheriff determined that there should be an award of expenses in favour of the both Defenders. They had succeeded in establishing their position under The Land Reform (Sc) Act 2003. As regards the nature of the award, the Sheriff accepted the test as laid down by Lord Hodge in the McKie case. He considered a number of authorities and suggested that the test to be applied with a very high one. In the present case, the Pursuers had no option but to raise proceedings if they wanted to challenge the First Defenders' Notice and their conduct was not such as to lead to an award of expenses against them on anything other than a party/party basis.

J v. Archbishop of Birmingham, QBD, 21/8/08

Thu, 21 Aug 2008 00:00:00 GMT

Issue of Limitation not a Preliminary Issue: Master Fontaine held that limitation in respect of claims made out of time by alleged victims of child abuse should be determined at a full trial rather than as a preliminary issue. There would be a large overlap between the evidence to be given in respect of the limitation issues and in respect of the liability and quantum issues, it was difficult to say that there would be any significant saving of costs. It would be very difficult for a Judge to exercise his discretion under section 33 of the Limitation Act 1980 without making some consideration of the merits of the claim..

Spence v Chap Construction Limited – Aberdeen Sheriff Court, 25 February 2008

Wed, 20 Aug 2008 18:39:00 GMT

The Pursuer sought damages for losses sustained as a result of the Defenders’ alleged failure to clear pathways of snow and ice. The Pursuer sought to amend the Record. The Defenders opposed the amendments insofar as they attempted to introduce new matters at a late stage in the procedure. The Minute of Amendment contained averments about a previous accident and the Sheriff decided that the Defenders’ objection to that amendment was well founded. It was absurd to expect the Defenders’ agents to make enquiries 7 years after the incident. No explanation had been provided for the late introduction if this information and the averment itself was wholly lacking in specification. The Pursuer also sought to argue that the Defenders’ system was flawed and to introduce a new factual element about the existence of compacted snow under new snow. Until the Minute of Amendment was lodged, there had been no criticism of the Defenders’ system. The Sheriff deleted the relevant averments from the Minute of Amendment. There would be very considerable prejudice to the Defenders if new lines of factual enquiry were opened up at that stage. Further averments in the Minute of Amendment sought to introduce a new statutory case and to reformulate the common law case. The case as originally plead was based on the Defenders’ failure to take reasonable care. The proposed amendment averred that the Defenders had not done what was “reasonably practicable”. The Sheriff considered that the introduction of the statutory case would place a different and additional onus on the Defenders but the issue for the Court was whether the addition of the statutory case radically altered the Pursuer’s case. He considered that it did not. Although the Defenders might have to amend their defences and carry out further enquiries in light of the statutory case and the Sheriff was conscious that there had been very considerable delay in the case already, he was not persuaded that further delay in bringing the matter to a conclusion was sufficiently grave to override the desirability of having the cases for both parties set out accurately. The amendment was allowed subject to certain deletions.

Mitchell v Hass Tek Services Limited – Dumfries Sheriff Court, 25 April 2008

Wed, 20 Aug 2008 18:32:00 GMT

Following the discharge of a Proof, the parties agreed that the Defenders should meet the expenses of the discharged Diet. The Pursuer’s Account of Expenses was taxed by the Auditor and the Defenders lodged a lengthy Note of Objections seeking substantial abatements of the expenses. Among other points, they argued that the Pursuer was only entitled to expenses necessitated by the discharge of the Proof and not items that could properly be regarded as for the general furtherance of his case. They also argued that much of the work carried out in preparation for the Proof, and the outlays incurred, were not lost by the discharge, but could be used again in any subsequent Proof. The relevant interlocutor included the words “finds the Defenders liable in the expenses of today’s discharged Diet”. The Sheriff decided that, in these circumstances, the Auditor’s determination that preparation properly began when the Diet of Proof was allowed and his decision to allow preparatory work performed after the fixing of the Proof could not be said to be unreasonable. The Sheriff cautioned that parties should exercise great care regarding the terms of any agreement about liability for expenses when a Proof is discharged. He suggested that it might be better to find the party responsible for the discharge liable for any expense occasioned by attendance at the discharged Diet and to reserve any question of the expense of preparation for the Proof. The Sheriff sustained the Note of Objections in part. As regards Counsels' fees, time had been charged for 2½ days. The Proof had been set down for 5 days and, as is customary, Counsel had charged for half of that time, although only one day had been occupied in the discharge of the Proof. On the following day, Counsel had been engaged in settlement discussions in relation to the action and the Sheriff decided that this was not work which formed part of the expenses of the discharged Proof. He allowed for 11/2 days of Counsels’ time. The daily rates charged by both Junior and Senior Counsel were questioned. The Auditor has simply accepted these figures without further enquiry. He did not appear to have had any material to allow him to assess whether the fees were reasonable. The Sheriff thought that that was not a reasonable exercise of discretion. The fees claimed by Counsel seemed high. It was noted that there is no table of fees for Counsel in actions in the Sheriff Court and the Sheriff expressed the view that this was not in the public interest as litigants had no indication as to the level of a significant element of the expense they might bear if unsuccessful. He questioned whether there was any other publicly available material that could be used as a guide. He considered the table of fees prescribed for solicitors as a useful starting point and abated both Junior and Senior Counsel’s fees

ESR Insurance Services Ltd. v Clemons & Ors [2008] EWHC 2023 (Comm) (11 August 2008)

Mon, 11 Aug 2008 00:00:00 GMT

No Default Judgment where Defendant Served Acknowledgment of Service Late: In a situation where default judgment was sought against a number of Defendants simultaneously, Blair J. granted default judgment in respect of those Defendants who had been duly served and had filed neither an acknowledgment of service or a defence. He refused, however, to grant default judgment in respect of one of the Defendants who had filed an acknowledgment of service late and applied for an extension of time. It was noted that the Defendant in question had only just obtained legal advice, and that it was in everybody’s interests if he reached an informed conclusion as to whether he had a defence to the claim.

McAvoy and others v Scottish Ministers – Edinburgh Sheriff Court, 27 June 2008

Wed, 23 Jul 2008 19:52:00 GMT

This decision related to whether the author of a number of reports, Dr Kevin Irvine, should be certified as a skilled witness. The issue arose in several personal injury actions in which damages were sought because of prison conditions and the effect of those conditions on prisoners (often referred to as “slopping out” cases). Dr Irvine had produced two styles of report and the vast bulk of each report was broadly similar. Dr. Irvine described himself as a 'medico-legal consultant' and his reports purported to be psychological medical reports, although he conceded that he had no formal qualifications in psychiatry. There was separate information in relation to each Pursuer's medical history. Dr Irvine had not clinically examined any of the Pursuers. The reports referred to the fact that the prisoners had found the process of slopping out “humiliating”, “embarrassing” and “degrading”. The Sheriff pointed out that these words appeared several times in the various reports, although he did not expect them to be in every prisoner’s vocabulary. The words did, however, feature in Lord Bonomy’s Judgement in Napier v The Scottish Ministers 2004 SLT 555. A significant part of each report contained factual information in relation to slopping out and summaries of various expert opinions presented to the Court in Napier, as well as the opinion of Lord Bonomy. In each case Dr Irvine concluded that the subject of the report had experienced psychological symptoms because of the conditions in prison. The Pursuers referred to a number of decisions in which the question of certification had been considered, although none of these supported the proposition that a witness should be certified as an expert for a discipline in which he had no formal qualifications. The Pursuers argued that Dr Irvine was a particularly suitable skilled witness in this case because he had experience and knowledge of the conditions that existed in Barlinnie Prison. He had been a medical officer dealing with the prisoners. The Sheriff concluded that Dr Irvine was qualified as a medical General Practitioner and that his field of expertise was general practice. Psychiatry and Psychology were separate and distinct disciplines with separate and distinct qualifications which he did not possess. He had made no clinical assessment of any of the Pursuers and gave no medical conclusions in support of any of the their claims. As Dr Irvine had carried out no medical or clinical examinations in support of his reports and he lacked the requisite expertise and skill to entitle him to report or give expert evidence in the field of psychology, the Sheriff refused to certify him as a skilled witness.

L'Oreal SA & Ors v eBAY International Ag & Ors [2008] EWHC B13 (Ch) (15 July 2008)

Tue, 15 Jul 2008 00:00:00 GMT

Disclosure of Tomlin Order Necessary for Party to Determine Whether it was Released from Liability: Master Bragge held that the confidentiality of a Tomlin Order was not a sufficient ground upon which to refuse disclosure, although it was something that could properly be taken into account. However, in the circumstances of the particular case, the disclosure of the agreement was necessary because the question of whether or not the Claimant had been released from liability impacted upon the question of whether concurrent tortfeasors had been released from liability or not. Accordingly, it was held that the Applicant ought to be permitted to inspect the confidential terms, although at first instance inspection should be made by its legal advisers only.

MELANIE ANDERSON v JONATHAN FORBES AND OTHERS [2008] CSOH 89

Thu, 26 Jun 2008 09:58:00 GMT

Procedure Roll - Action for personal injuries resulting from a fire in a tenement block. Rubbish in the communal area of the tenement had been set on fire. Pursuers suffered personal injuries as a result of jumping from the building. Disputed whether all or any of the defenders liable. The defenders moved for dismissal of the action or exclusion of certain averments from probation. Discussed: 1) whether first and fourth defender sufficiently linked to the property, 2) whether relevant case averring occupation and control by the first to tenth defenders had been pled, 3) whether reasonable foreseeability of the risk of fire had been relevantly pled and 4) whether a relevant case against the eleventh defenders had been plead. Case put out By Order for the pursuer to amend. Expenses reserved.

(FIRST) RANALD DURNESS MACKAY, (SECOND) MRS MOYRA AGNES ISABELLA MACKAY and (THIRD) MRS SHEENA MACKAY v JAMES M EDMOND [2008] CSOH 92

Thu, 26 Jun 2008 09:51:00 GMT

Debate. Payment of damages sought as a result of defender's alleged negligence in carrying out duties as accountant and tax advisor. Debate on the defender's pleas-in-law which were, broadly, (1) the pursuer’s averments were lacking in specification as the sums concluded for did not include allowance for benefits which had accrued to the pursuer from postponement of paying of tax, (2) the pursuer’s averments were irrelevant as the sums concluded for did not meet conclusions, and (3) amendment created a fresh case and had prescribed. Whether lack of fair notice. Whether the pursuer’s right to amend prescribed due to nature of amendment creating fresh case. Pleas-in-law repelled. Proof before Answer allowed.

ANM GROUP LIMITED v GILCOMSTON NORTH LIMITED and OTHERS [2008] CSOH 90

Thu, 26 Jun 2008 09:15:00 GMT

Action for damages based on contract and delict. Pursuers owned agricultural centre and auction mart. They became aware of serious roofing failures and brought an action against the defenders for failures in contract and delict. Prescription and Limitation (Scotland) Act 1973 section 11. Debate on whether pursuers’ right had prescribed. Whether knowledge of roofing problem went beyond summarising, as a mere possibility, that the roof problems might be attributable to a culpable third party. Whether third defenders liable for failures to respond to pursuers’ requests for expert investigations or failing that, their failure to advise the pursuers to seek expert advice. Proof before Answer allowed.

LIGHTWAYS (CONTRACTORS) LIMITED v NORTH AYRSHIRE COUNCIL [2008] CSOH 91

Thu, 26 Jun 2008 09:03:00 GMT

European Directive 2004/18/EC - Motion for interim order to suspend implementation of decision of the defenders’ executive committee to accept tender for lighting maintenance contract. In terms of the regulation, the pursuer was an economic operator and the defender was the contracting authority. The pursuer applied under Regulation 32(4) for reasons why the pursuer was unsuccessful in their tender. The pursuer claimed the defender failed to comply with 2001 Regulations as follows: 1)failure to treat the tenders equally during the tendering process, 2) failure to comply with the requirements as to the criteria used to award the contract, 3) in scoring exercise there had been failure to carry out an equal and transparent assessment of the tenders, 4) failure to comply with the provisions of Regulation 32 with respect to providing information at the debriefing meetings. If order applied, existing contract would require to be continued at an additional £23,360 per month more than the new contract. Order refused. Expenses reserved.

Gilbart v Graham (A Firm) [2008] EWCA Civ 897 (24 June 2008)

Tue, 24 Jun 2008 00:00:00 GMT

Judge Wrong to Refuse to Vacate Trial where Party Awaiting Disclosure: The Court of Appeal held that, having regard to the overriding objective, the judge had been incorrect to refuse to grant a defendant’s application to vacate a trial. The Appellant had realised that specific discovery of certain documents had not occurred and applied to the court on the basis that the Respondent had not given up the documents that were pertinent and required. The judge had held that the parties could comply with the discovery requests before the commencement of the trial. The appeal court disagreed, noting that there was a substantial sum of money at stake and that the Appellant would need to instruct an expert following receipt of the disclosure.

Re D, HL, 11/6/08

Wed, 11 Jun 2008 00:00:00 GMT

The Standard of Proof in Civil Claims: The House of Lords made clear that only two standards of proof are recognised by the common law: the balance of probabilities and beyond reasonable doubt. The test of the balance of probabilities was, however, flexible in its application: a court may have to look at the facts more critically or anxiously where there was an inherent unlikelihood of an occurrence taking place, a serious allegation or consequences following from the proof of the relevant fact. Where an allegation was not inherently improbable, a court should not consider potential adverse consequences against an individual if a finding were to be made against him. These were all matters of ordinary experience, requiring the application of good sense by a court or tribunal.

Application by EF and GF – Sheriff Court, 11 January 2008

Wed, 30 Apr 2008 18:46:00 GMT

Adults with Incapacity (Scotland) Act 2000 - Appointment of welfare and financial guardians - difficulty in obtaining Bond of Caution
An application was made by EF and GF to be the appointed both welfare and financial guardians of their uncle. In terms of the 2000 Act, the Sheriff had to fix caution for the value of the adult’s estate. This mandatory requirement could only be dispensed with if the guardians were unable to find caution, but were otherwise suitable to be appointed. Sheriff Baird had already published an opinion (Scottish Courts website – 28 December 2007 – application by RL) which dealt with the problems experienced by those applying to be appointed as guardians in obtaining a Bond of Caution. He has expressed the view that the attitude of insurers was subverting the intention of Parliament. The applicants in the present case had encountered the same difficulty in obtaining caution. The only two insurers who cover this area had declined to provide a Bond of Caution. As a result the Sheriff had to waive the requirement for caution and this left a significant estate uninsured. The Sheriff stated again that this issue needs to be addressed.

Application by the Authority Reporter under Section 65 of the Children’s’ (Scotland) Act 1995 in the case of MU (appealed by RU) – Edinburgh Sheriff Court – 11 March 2008

Wed, 30 Apr 2008 18:03:00 GMT

Appeal - Children's Hearing - Alleged breach of right to a fair hearing - Article 6(1) of the European Convention on Human Rights

The Authority Reporter had presented an application to find whether grounds for referral of a child (MU) to a Children’s Hearing had been established. Following a Proof in relation to the application, MU’s father appealed to the Sheriff Principal arguing that his a right to a fair hearing under Article 6(1) of the European Convention on Human Rights had been breached at the Proof. After his Motion for a continuation of the Proof had been opposed, the Appellant had left the court and the Sheriff had heard evidence from the child’s mother and a social worker. The case was then adjourned and the Appellant returned to court. When the Proof resumed the Sheriff indicated that she had heard evidence in his absence and, on the basis of that evidence, intended to hold the grounds of referral as established. The Appellant was not given the opportunity to give evidence and this was the basis of his complaint that his right to a fair hearing had been breached. Several authorities were considered, from which the Sheriff Principal extracted a number of principles as to how the provisions of Article 6 should be applied. He reached the conclusion that the appellant’s right to be heard had been infringed and remitted the case for a re-hearing.

Walbrook Trustee (Jersey) Ltd & Ors v Fattal & Ors [2008] EWCA Civ 427 (11 March 2008)

Tue, 11 Mar 2008 00:00:00 GMT

Applicants Should Inform Court of Factors Affecting Appeal: The Court re-iterated that it was not appropriate for it to interfere with a case management decision taken by a judge who had applied the correct principles and acted within his generous ambit of discretion. At the time that permission to appeal was granted the Court had not been aware that one of the key issues in the case had already been directed to be determined as a preliminary issue in existing proceedings. It was stated per curiam that it was incumbent on applicants, both before and after permission to appeal had been given, to inform the Civil Appeals Office if any factors affecting the decision either way had arisen. If permission was given based on a mistaken apprehension of the facts the applicant should write to the CAO seeking appropriate directions.

Clydesdale Bank plc v Stuart Wright – Inverness Sheriff Court, 2 February 2008

Wed, 05 Mar 2008 12:07:00 GMT

Summary Cause - Action for payment – Application to sist– whether action should be sisted pending outcome of case in the English High Court.

In a Summary Cause action the Pursuers sought recovery of advance on a Current Account from the Defender. The Defender lodged Defences and a Counterclaim for recovery of bank charges. The Pursuers decided not to insist on their claim, so the only remaining issue was the Defender’s claim for recovery of bank charges. The Pursuers sought to have the cause sisted pending the decision in the OFT test case before the High Court in London. The background to the claims was set out in the Sheriff’s earlier decision in Coleman v Clydesdale Bank and Thomson v Clydesdale Bank (see Casecheck report 6th September 2007) The OFT test case had proceeded before the Commercial Division of the High Court and the Court’s decision was expected within 12 weeks. The Pursuers submitted that there were five reasons why the action should be sisted. These were very similar to the arguments presented in the Coleman case. The Sheriff discussed each ground in turn. Having had an opportunity to consider some of the final pleadings in the OFT action, the Sheriff agreed that the issues in that case were identical to the issues raised in the present case. The Sheriff expressed the view that it was wrong to state that the relevant law was identical in Scotland and England, however. There was no guarantee that the decisions and reasoning of the English Courts would be applied in Scotland, simply because the original statement on the law was the same. The question which the Sheriff had to consider was whether the Pursuers had satisfied him that it was appropriate to sist the action because another Court was considering the same issues. Scottish Judges had a responsibility to uphold the integrity of the system of Scots Law separate from other legal systems. The Court should be slow to make any decision which would, even in a small way, undermine the system of Scots law. That said, substantial progress had been made in the OFT case and the outcome was likely to be known in less than three months. It seemed to the Sheriff that the balance of competing factors had shifted significantly since Coleman. There was a utilitarian value in granting a sist at that stage. He reserved his opinion, however, on whether it would be appropriate for the action to remain sisted after the OFT Judgement had been issued if the Banks decided to lodge an Appeal against that Judgement.

Expandable Ltd & Anor v Rubin [2008] EWCA Civ 59 (11 February 2008)

Mon, 11 Feb 2008 00:00:00 GMT

Mention of a Letter does not Automatically Waive Legal Professional Privilege: The Court of Appeal, applying the test of “direct allusion”, accepted that a letter had been “mentioned” in a Respondent’s witness statement for the purposes of CPR31.14; the test was not intended to be an onerous one, the word mention was as general as could be. However, the Court was not satisfied that the mere mention of a document provided for the automatic and absolute waiver of its privilege; this would be a significant departure from previous jurisprudence with no good explanation. Privilege is a fundamental right that cannot be overridden by general words. The right under CPR 31.14 was actually a qualified right by reference to CPR 31.3.

Koshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft MBH & Anor [2008] EWCA Civ 27 (05 February 2008)

Tue, 05 Feb 2008 00:00:00 GMT

Pursuing Appeal prevents Pursuance of Alternative Procedural Routes: During a Court of Appeal hearing, the Appellant was given the choice whether to continue with the appeal, subject to it being limited to two paragraphs of the appealed judgment, or have the case remitted to the Chancery Division for a full trial. He elected for the former option, and subsequently lost the appeal. When he tried to renew the action in the Chancery Division, the Judge held that he had clearly agreed that he would not bring a fresh action, and that to do so was an abuse of process. This decision was upheld by the Court of Appeal; there was a public interest in the finality of litigation, moreover, it would be unfair on the Respondent for the Appellant to have another bite at the cherry.

Application in respect of RA – Glasgow Sheriff Court, 17 January 2008

Wed, 30 Jan 2008 20:26:00 GMT

Application for Appointment of Guardian – Adults with Incapacity (Scotland) Act 2000- Replacement of original Guardian - Expenses - Awarded against Solicitors personally

In May 2006 an application was made under the Adults with Incapacity (Scotland) Act 2000 to appoint a son as Guardian in respect of the welfare and property and financial affairs of his mother("the adult").The application contained no averments about the suitability of the proposed applicant and the writ had to be returned to the instructing solicitors on two occasions. An averment was eventually added that the applicant was “of good character”. About a year later, the same solicitors presented another application to appoint the adult’s daughter (the original applicant's sister) as welfare and financial guardian. That application contained an averment that there were no orders or appointments in terms of the Act in respect of the adult, which was incorrect. It transpired that the original applicant had been refused a Bond of Caution after he disclosed to insurers that he had been convicted of embezzlement in the past.The solicitors who submitted both applications were aware of this, although at no time while the original application was under consideration was this information disclosed to the Sheriff, nor was he told when the second application was presented. The Sheriff was only advised of the position at the end of December 2007, at which stage he fixed a hearing. He indicated that there were two ways in which the matter might be resolved. Section 63 of the Act allowed him, on an application, to appoint a substitute guardian if the original Guardian became unable to act. In addition, in terms of Section 71(1)(a) on an application by a person claiming an interest in the adult’s property, the Sheriff could replace an existing Guardian by a nominated individual. The daughter’s application had not been dismissed-it had only dropped from the Roll - which meant that the Sheriff was able to revive that application and he used his powers under the Act to dispense with the need for further intimation of that application. He made an Order replacing the originally appointed Guardian in respect of financial matters by his sister. For obvious reasons, the Sheriff made an Order that the expenses of this additional procedure should be borne personally by the solicitors involved.

James Duff v David Strang [2008] HCJAC4

Thu, 24 Jan 2008 14:47:00 GMT

Appeal - This stated case arose out of an action of lawburrows raised by the pursuer and appellant. The defender and respondent is David Strang, who was until recently Chief Constable of Dumfries and Galloway Police. On the date which had been set down for proof in the action, the sheriff entertained and upheld submissions that the action was incompetent and irrelevant. The appellant appealed to this court by stated case. When the case called, the court appointed it to a full hearing, and directed that at that hearing the court should be addressed on (1) the competency of the mode of appeal, and (2) the merits of the decision in the lower court. The court now heard submissions on these matters

Evans v CIG Mon Cymru Ltd [2008] EWCA Civ 390 (18 January 2008)

Fri, 18 Jan 2008 00:00:00 GMT

Necessary to look at Proposed Amendment in the context of Proceedings as a Whole: The Court of Appeal held that, when deciding whether a proposed amendment to a claim form clarified an inconsistency in that document or raised a new cause of action, it was appropriate to view the amendment in the context of the proceedings as a whole rather than merely in the context of the pleadings. Had the Court done so, it would have seen the mismatch between the claim form and the accompanying documents, which would have clearly demonstrated that the amendment was intended to fix an obvious error.

Hutchinson 3G UK Ltd v O2 (UK) Ltd & Ors [2008] EWHC 50 (Comm) (18 January 2008)

Fri, 18 Jan 2008 00:00:00 GMT

Requirements for Pre-Action Disclosure Application:Held that the threshold requirements for an application for pre-action disclosure were not met where the applicant failed to establish that the documents were likely to fall within standard disclosure and that pre-action disclosure was likely to dispose of the dispute or save costs. It was said that it was inappropriate for the Respondents to be required to identify which documents were within the scope of standard disclosure. An application for pre-action disclosure had to be highly focussed, either on supporting or undermining an issue that was likely to be pleaded.

McGibbon v Graham McAllister [2008] CSOH NUMBER4

Thu, 17 Jan 2008 13:23:00 GMT

Procedural Hearing - Practice and Procedure – title to sue/Proof before Answer sought. Liability admitted by defender. Pursuer was individual claiming damages under Section 1(4) of Damages (Scotland) Act 1976 on the grounds that he was a “de facto stepfather” of deceased. Submitted that he had acted and was accepted by the deceased as father. Submitted by pursuer that no other person had a title to sue. The Court considered the provisions of the Act pre and post 4 May 2006. Act made provision for such a relationship but only applying to deaths which occurred after 4 May 2006. Question of title to sue. Lord Brodie felt that a de facto relationship may well fall within these provisions. Proof before Answer allowed to make further enquiries into true relationship of the pursuer to deceased.

Onyvax Limited v. Endpoint Research (UK) Limited [2007] CSOH 211

Thu, 10 Jan 2008 17:33:00 GMT

Motion - for an interim order under section 47(2) of the Court of Session Act 1988. The pursuers were seeking delivery of a Trial Master File and the now declined to co-operate, and instead asserted a common law lien on account of the pursuers' non-payment of work invoices. The parties were in agreement that the proper approach to an application for an interim order under section 47(2) was that affirmed by an Extra Division in Scottish Power Generation Ltd v British Energy Generation (UK) Ltd 2002 S.C. 517. The parties were, however, in dispute as to whether these requirements for an interim order had been made out in the present case. This was then considered by Lord Elmslie.

Link Housing Association Limited v. PBL Construction Limited +The Gray Aitken Partnership Limited+Gemmell Hammond and Partners +J.R. Queenan Partnership Limited + Hugh Brown [2007] CSOH 206

Thu, 10 Jan 2008 17:30:00 GMT

Minute of Amendment - This matter related to a development of flats which involved the various defenders in their construction. A growing list of faults and problems emerged and were so great that the flats had to be demolished. There were a number of issues in relation to the designation of the pursuers (who were, in essence, the developer of the flats) and they lodged a Minute of Amendment seeking inter alia to substitute for the pursuers, a different designation. The amendment was received and answered by various interested defenders. The Lord Ordinary then allowed the Record to be amended in terms. There was a reclaiming motion and the amendment was refused for two reasons. The first was that the error was one of substance going as to the identity of the person suing and a different person could not be substituted. The second reason for refusal related to expiry of time limits. The pursuers then lodged another Minute of Amendment, similar in nature, which was opposed by certain of the defenders on the basis that the matter is already decided and Lord McEwan was bound by the decision of the First Division on this same point. The Minute of Amendment was considered here.

Degremont Societe Anonyme + Amec Capital Projects Limited v. Caledonian Environmental Sciences PLC [2007] CSOH 203

Thu, 10 Jan 2008 17:27:00 GMT

Commission and diligence - The pursuers and the defender were parties to a contract and in broad terms, the pursuers were the contractors and the defender were the employer. At this time, the action came before Lord Brodie on the motions for commission and diligence in terms of the parties' respective specifications of documents. It was agreed that commission and diligence should be granted in respect of the defender's specification, as amended. It was also agreed that commission and diligence should be granted in terms of calls 1 to 5 of the pursuers' specification. Calls 6 to 9 in the pursuers' specification, however, were controversial. The defender’s argued that the pursuer’s were not, however, entitled to commission and diligence to recover documents instructing the defender's claim at the Open Record stage.

Khudados v Hayden & Ors [2007] EWCA Civ 1316 (13 December 2007)

Thu, 13 Dec 2007 00:00:00 GMT

Barrister’s Duty Does Not Extend to Supplementing Deficiencies in Opponent’s Evidence: Counsel for the Defendant did not disclose a medical report in proceedings conducted against a Claimant who was appearing in person. The Court of Appeal said that in considering whether a barrister was bound to disclose evidence favourable to the other side it was better to approach the question from the stance that he would be failing in his duty to his own client if he were to supplement deficiencies in his opponent’s evidence. The fact that he other side was a litigant-in-person made no difference to the manner in which he fulfilled his professional duties to his own client.

Seventh Earl of Malmesbury & Ors v Strutt & Parker (a Partnership) [2007] EWHC 2641 (QB) (10 December 2007)

Mon, 10 Dec 2007 00:00:00 GMT

Court cannot alter Judgment once Order Sealed. Jack J. held that once an Order had been sealed it operated as a bar to a judge’s discretion to alter the judgment as the judge was functus officio; at that stage the only way forward for a dissatisfied party was to appeal. The Order was clearly intended to draw a line under the proceedings and prepare the way for the future. It was accepted that it was well established that up until the point when the Order was sealed, i.e. where a judgment had been delivered orally or handed down, the judge might in appropriate circumstances alter it at any time.

Aldi Stores Ltd v WSP Group Plc & Ors [2007] EWCA Civ 1260 (28 November 2007)

Wed, 28 Nov 2007 00:00:00 GMT

Decision to Strike Out Not a Pure Exercise of Discretion: The Court of Appeal said that courts should adopt a broad merits-based approach when considering an application to strike out a claim as an abuse of process on the basis that it could and should have been brought in previous proceedings. No distinction should be drawn between cases where the original matter was concluded by settlement and where it was concluded by judgment, nor where the original proceedings did not concern the same parties. A judge’s decision to strike out a claim is not the exercise of discretion but a decision involving the assessment of a number of factors to which there can only be one correct answer. In the present case the judge had taken into account matters that he shouldn’t have and omitted matters that he should have.

Peter Mair v Mohammed Arshad – Cupar Sheriff Court, 23 October 2007

Sun, 25 Nov 2007 15:42:00 GMT

Diet of Debate - Relevancy and Specification - Action for Payment - Housing Grants, Construction & Regeneration Act 1996, sections 104 and 110 and Part II of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998

The Pursuer raised an action for payment in respect of works carried out on the Defender’s construction project. The parties had entered into a written contract. They were agreed that the contract was a fixed-price contract to supply labour to carry out works and that it was a construction contract within the meaning of Section 104 of the Housing Grants, Construction & Regeneration Act 1996. A Diet of Debate took place in relation to the Defender’s preliminary plea. The Defender argued that the Pursuer’s averments were insufficient to give him fair notice, as the relevant invoices did not adequately specify the work done. He also argued that the Pursuer’s pleadings were irrelevant as the claim for payment made by the Pursuer did not conform to the requirements of the 1996 Act, read together with Part II of the Schedule to the Scheme for Construction Contracts (Scotland) Regulations 1998. On that basis, payment was not due and the action should be dismissed. The Pursuer’s position was that the terms of Part II of the Scheme had not been incorporated into the contract because, in terms of Section 110(1) of the Act, those terms only applied when the contract itself did not provide an adequate mechanism for determining what payments became due under the contract and when. The Sheriff was of the view that the Pursuer’s pleadings were sufficiently specific to enable the matter to proceed to Proof. Although it was true that further specification could be given, the question was whether this was necessary to give fair notice of the claim made against the Defender. In this case, the Defender was not entitled to demand further specification, particularly as he had simply answered the Pursuer’s claim with a bald averment that the work had not been finished. The Defender’s second argument depended crucially on establishing that the relevant terms of the Scheme had been incorporated into the contract. That in turn depended on whether the contract agreed between the parties satisfied Section 110(1) of the Act. Although the parties agreed that the contract established a mechanism for determining what payments became due under the contract and when, the dispute between them came down to whether that contractual mechanism was “adequate”. In the Sheriff’’s view, this was a question of fact, not law and, on that basis, he could not determine at that stage whether the contract between the parties did incorporate the terms implied by the Scheme. That could only be done after Proof and, on that basis, he allowed a Proof before Answer.

David & Lesley Horban v Torith Limited – Dundee Sheriff Court, 6 November 2007

Sun, 25 Nov 2007 14:33:00 GMT

Diet of Debate - Relevancy and Specification of Pleadings - Existence of Contract between Parties

The Defenders were main contractors on a housing development. The Pursuers bought a plot of land there and the Defenders built a house on it. The Pursuers entered into missives with the landowners, D Ltd, and corresponded with the Defenders regarding the specification of the house, the price and extras to be included. An NHBC Certificate was issued, naming the Defenders as the builders. After the Pursuers moved into the property, significant problems arose in relation to the ceramic tile floor throughout the house and the under floor central heating. The Pursuers raised an action for damages against the Defenders based on breach of contract, specifically the implied term to exhibit the skill and care reasonably expected of competent building contractors of ordinary competence and the express term that the subjects would be suitably constructed conform to NHBC standards. The Pursuers also claimed they had suffered loss through the Defenders’ negligence. The Defenders sought decree of dismissal. They maintained that the Pursuers’ pleadings did not contain averments sufficient to set up any contractual or delictual relationship between the parties. Although the missives formed a contract between D Ltd and the Pursuers, they did not create a contract between the Pursuers and the Defenders. The Sheriff held that it could not be said that the Pursuers had not made out a case that they had a contract with the Defenders. There were missives, but they did not specify that a house would be built, nor who would build it. The Defenders had assumed D Ltd’s obligations in terms of the missives with regard to NHBC documentation and fully accepted those obligations. The Defenders argued that the averments in relation to the NHBC documentation were not sufficient as they did not give them fair notice of the ways in which their efforts to remedy the defects in the property had fallen below NHBC standards. The Sheriff took the view that the Pursuers’ averments in that regard did not form a separate case, but were designed to reinforce their principal position that there was a contract with the Defenders. Only after evidence had been heard could be established whether the Defenders were in breach of any of the terms of any contract proved to exist. The Pursuers’ case based on delict was a different matter entirely however. The Sheriff was not satisfied that the Pursuers had made out a relevant delictual case. The damage they claimed to have suffered was one of pure economic loss. The tiles had been supplied, fitted and were cracked in places and the replacements offered were a different shade. The under floor heating was inadequate in one room. There was the cost of repair, but no consequential damage, nor any question of damage to the property of others. There was no suggestion that the value of the Pursuers’ property had been diminished in any way. The defects were in the items themselves, rather than in loss to another person or other property. The Sheriff was not satisfied that the doctrine set out in Junior Books v Veitchi Co Ltd 1982 SLT 492 was applicable in this case, not least because the Pursuers were seeking to set up a direct contractual relationship between the parties. He allowed a proof before answer but refused to admit the averments in relation to the Pursuers’ delictual claim to probation.

Re M (Children), CA, 22/11/07

Thu, 22 Nov 2007 00:00:00 GMT

Parties bound by Report where Expert does not attend Trial. The Court of Appeal held that where an evidence had given his evidence in the form of a written report and had not been required to give oral evidence at trial, both parties were effectively bound by the statements of facts and opinion contained in that report. It was not open to raise issues on appeal that could have been raised in the course of the trial.

Hadden Construction Limited v Midway Services Limited - Edinburgh Sheriff Court, 17 October 2007

Thu, 15 Nov 2007 21:12:00 GMT

Appeal - Sheriff's Decision on Expenses - Petition for Order Winding up Company - Insolvency Act 1986, ss 122(1)(f) and 124(1)
The Petitioners/Respondents had brought a petition for an order to wind up the Appellants, founding on Section 122(1)(f) of the Insolvency Act 1986 in particular. Section 124(1) of that Act allows, among others, creditors, including contingent creditors, of a company to apply for the winding up of that company. The Respondents had brought the petition on the basis that they were due sums under a contract for the construction of a housing development, although no architect's payment certificate had been issued in respect of the sums, as required under the contract. They had relied on the terms of a letter from Appellants’ solicitors as confirmation that the Appellants were insolvent. After the petition had been raised, accounts had beenproduced, which demonstrated that the Appellants were not balalnce sheet insolvent. The Sheriff had agreed to dismiss the Petition but had found the Appellants liable to the Respondents in expenses. The appeal was directed only against the Sheriff’s award of expenses. Essentially, the Appellants contended that the Sheriff had erred in law in holding that the Respondents were contingent creditors of the Respondents for the purposes of Section 124 of the 1986 Act and had erred in holding that there was a “clear and unambiguous” representation of insolvency in the letter from the Appellants’ solicitors. It was an established principle that an appellate court would not alter a decision on the question of expenses on the basis of a point which had not been argued at first instance. As a petition for liquidation is not an appropriate means of resolving a substantial dispute as to whether a debt is owed or not, the Sheriff Principal indicated that the arguments before the Sheriff should have focused on the nature of the dispute between the parties about the sums allegedly due. Although it could not be said that this essential issue had not been "embraced" before the Sheriff, the limited scope of that discussion left the Sheriff Principal reluctant to intervene. He also held that, in the particular circumstances of this case, it could not be said that the Sheriff had exercised her discretion unreasonably in arriving at the conclusion that the Respondents had been justified in bringing the petition for l.iquidation.

The Accountant in Bankruptcy v Peter Butler – Kilmarnock Sheriff Court, 12th January 2007

Thu, 01 Nov 2007 13:18:00 GMT

Appeal - Action of Declarator - Petition for Sequestration of non entity - OCR 5.7(1)

The Defender/Appellant had carried on business under the trading name "HB Engineering" ("HB"). Proceedings had been raised against HB for recovery of debts and a decree had been obtained. A Petition for the sequestration of HB had been raised and sequestration had been awarded. The Pursuer/Respondent had been appointed as Interim Trustee. He then raised an action seeking a number of declarators designed to cure difficulties which he had encountered in ingathering and dealing with the estate of the Appellant. The Respondent maintained that the Appellant had been sequestrated on the basis that he was the true debtor in respect of the decree on which the sequestration was based and he and HB were one and the same. At first instance the Appellant had argued that the action should be dismissed. Following a debate, the Sheriff had declined to dismiss the action and had allowed a Proof. The Appellant appealed against the Sheriff’s decision. He accepted that the decree against HB would have formed a proper basis for a sequestration Petition against himself, but maintained that such a Petition should have run "in the name of the Peter Butler, trading as HB". He argued that, as HB was an entity which did not exist on its own separately from the Appellant, who was not mentioned in the sequestration Petition, and as it was not possible to sequestrate a non-entity, the order sequestrating HB was invalid. Although raising an action for recovery of debts using a trade or descriptive name was permitted by Ordinary Cause Rule 5.7(1) and diligence could then be carried out on the basis of that decree, it was not permissible to use the decree to apply for sequestration of the non-existent entity. Only a person could be sequestrated. In any case, sequestration was not "diligence" within the meaning of OCR 5.7(1). The Sheriff Principal agreed that a non-existent entity could not be sequestrated and, thus, a Petition for sequestration of such an entity was a nullity. A nullity could not be cured by an action of declarator and, on that basis, the Sheriff Principal allowed the appeal and dismissed the action.

Aaron Hamish Thomson v Bank of Scotland - Inverness Sheriff Court, 17 October 2007

Thu, 25 Oct 2007 12:41:00 GMT

Small Claim - Commission and Diligence for Recovery of Documents - Fishing Diligence

In a small claim action for recovery of bank charges, the Pursuer lodged an incidental application for Commission and Diligence for the recovery of a number of documents, which were sought in an attempt to establish that the Bank’s charges amounted to a penalty. At a Hearing in relation to the incidental application, the Pursuer did not insist on a number of the calls in the Specification. The Application was granted in relation to one of the calls and refused in relation to the remaining calls. The Defenders criticised those calls on the basis that they were so lacking in relevancy and specification as to be regarded as a fishing diligence and also that the burden which would be placed on the Defenders in having to trace the documents called for would be completely disproportionate to the value of the claim. The Sheriff was quite satisfied that the disputed calls were an attempt at fishing diligence. The Sheriff raised the issue of where the burden of proof lay in determining whether the Bank’s charges amounted to a penalty and how that burden might be discharged.

Secretary of State for Work & Pensions, Child Support Agency v Walter Dykes Runciman - Selkirk Sheriff Court, 30th August 2007

Thu, 25 Oct 2007 08:05:00 GMT

Appeal - Reasonableness of Sheriff's Decision - Disqualification from holding or obtaining driving licence -The Child Support Act 1991, Section 39A The Appellant had been disqualified from holding or obtaining a driving licence for a period of 9 months following an application on behalf of the Secretary of State for Work & Pensions under Section 39A of the Child Support Act 1991, Section 39A , which was introduced by the Child Support Pensions & Social Security Act 2000 . That provision enables the Secretary of State to apply to a court for either a warrant committing a person to prison, or an order for disqualification from holding a driving licence, if that person has failed to make payments for child support maintenance. The Appellant, a party litigant, argued that he would face a number of difficulties in carrying out his work as a partner in a family farm business without a driving licence. He also argued that it was absurd that he be banned from driving for failing to pay child maintenance when he had a clean driving licence, especially as the amount in dispute between the parties was relatively small. The Sheriff Principal refused the appeal. The Sheriff had concluded that the Appellant was wilfully refusing to make payment. While disqualification from driving would cause the Appellant considerable inconvenience, it was clear that he did not "need" a driving licence to earn his living. That was the statutory test which had been properly applied by the Sheriff.

The Chief Constable, Tayside Police v Robert Lesley Basterfield - Perth Sheriff Court 3/09/07

Thu, 18 Oct 2007 11:56:00 GMT

Summary Application - Sexual Offences Protection Order - Sexual Offences Act 2003, Section 105(1)

In a Summary Application, the Pursuer sought a Sexual Offences Protection Order against the Defender in terms of Section 105(1) of the Sexual Offences Act 2003. Having heard evidence from a number of witnesses, the Sheriff decided that the granting of such an Order was necessary to protect members of the public from suffering serious sexual harm as a result of the actions of the Defender. He held that the granting of this Order did not contravene the Pursuer’s human rights. An Order was granted prohibiting the Defender from accosting any lone female for a period of 5 years from the date of the Sheriff’s decision. The Pursuer had sought a much wider Order for a period of 10 years, but the Sheriff considered most of the provisions in the proposed Order to be unnecessary. The Decision contains a useful analysis of Section 105 of the 2003 Act. A copy of the written submissions provided by Counsel for both parties is also attached to the Sheriff’s note.

Hunte v E Bottomley & Sons Ltd [2007] EWCA Civ 1168 (16 October 2007)

Tue, 16 Oct 2007 00:00:00 GMT

The Use of Plans, Maps and Diagrams in Court of Appeal Proceedings. In the course of its decision the Court made some general observations about the use of plans, maps and diagrams in Court of Appeal proceedings. Arden LJ said that it was absolutely essential that, in any case where there were to be plans, maps, diagrams or photographs, there was at least one document which left the Court in no real doubt about the location of all the relevant features, in order that court time was not wasted by those features having to be explained. The skeleton arguments should identify such a document at an early point.

MF (Jamaica) v. Entry Clearance Officer (2007), unreported (LTL), CA, 16/10/07

Tue, 16 Oct 2007 00:00:00 GMT

First Instance Judge Should Make Decision on Credibility. The Court of Appeal held that it was for the judge who had heard the evidence of a witness to make a decision on that witness’s credibility; an appellate court that was not party to all the evidence was not in a position to reverse the findings made by the judge about that evidence.

James v. Havering London Borough Council [2007] EWHC 2168, QBD, 26/9/07

Wed, 26 Sep 2007 00:00:00 GMT

Inappropriate to Set Aside Stay where Chances of Success Remote. Keith J. held that it was not appropriate to set aside a stay of proceedings where the proceedings had been delayed over a period of some twelve years, and where the claimant’s chances of success were so remote that the interests of justice demanded that the litigation be brought to an end. The procedural situation in the case was extremely complicated- the case had been automatically stayed when the CPR came into force and the parties had laboured under the misapprehension that it was not stayed for a considerable period of time. To lift the stay would have meant that a default judgment that had been granted would have had to have been set aside.

Paul Taylor v Linda Elizabeth Cameron or Taylor

Sun, 23 Sep 2007 21:00:00 GMT

Undefended Divorce Action - Motion to allow appeal to be marked late

The Appellant enrolled a motion to relieve her of the consequences of Ordinary Cause Rule 31.1, which sets a time limit of 14 days for the lodging of an appeal, and to allow her to mark an appeal late in relation to a Decree of Divorce. The Decree was pronounced on 10th August 2007 and the Appellant maintained that she did not become aware of the proceedings until 28th August, 2007. The appeal was refused. There was clear authority to the effect that the Court’s dispensing power could not be used to waive the time limit for an appeal after the Decree had been extracted (Alloa Brewery Co ltd v Parker 1991 SCLR 70), unless it could be established that the Decree had not been competently granted and validly extracted. That had not been established in the present case and, on that basis, Alloa could not be distinguished. Sheriff Principal Bowen also considered an unreported case - Mahmood v Mahmood (29th June, 2007) in which Sheriff Principal R A Dunlop QC had heard an appeal against an undefended Decree of Divorce. He had held that, as Rule 8.1 of the Ordinary Cause Rules, which allows reponing, excludes family actions from its application, the only form of appeal against a Decree of Divorce was that provided for in s27 of the Sheriff Courts (Scotland) Act 1907. That appeal was against the merits of the Sheriff’s decision and could only proceed on recognised grounds.

Jason Coleman v Clydesdale Bank and Aaron Thomson v Bank of Scotland

Thu, 06 Sep 2007 22:00:00 GMT

Summary Cause/Small Claim - application to sist

The Pursuers in a summary cause and a small claim action were seeking recovery of bank charges which their banks, the respective Defenders, had deducted from their current accounts. The Pursuers argued that the charges were a penalty and, on that basis, unenforceable. They also contended that the charges were contrary to the Unfair Terms in Consumer Contracts Regulations 1999. The Defenders made applications to sist both cases at their first callings. The Pursuers opposed the applications. There had been a large number of claims against banks for recovery of charges and the Office of Fair Trading (OFT) had started an inquiry in April 2007. That inquiry was still underway. The OFT had also raised a test case in the Commercial Division of the High Court in London and a hearing in that case was due to start in January 2008. The purpose of that action was to establish the legal basis of the claims. The Defenders argued that the present actions should be sisted for a number of reasons, including the fact that there would be a considerable overlap between the present cases and the OFT action. The Defenders contended that the decision in the OFT action was likely to be of considerable assistance to other Courts. Sheriff Pyle refused the applications to sist. The decision of the High Court would not be binding on the Scottish Courts and, in the Sheriff's view, it would be unsatisfactory to force a Pursuer to delay proceedings in order to wait for such a decision. Although not addressed on the point, Sheriff Pyle expressed the view that a sist would not have been in breach of Article 6 of the European Convention on Human Rights, which entitles a litigant to a hearing within a reasonable time.

K v S

Thu, 06 Sep 2007 15:20:00 GMT

Action for Declarator of Nullity of Marriage - Jurisdiction of Sheriff Court

An undefended action for declarator of nullity of marriage was dismissed. An issue arose in relation to jurisdiction. The Sheriff noted that Section 4 of the Family Law (Scotland) Act 2006 purports to extend the jurisdiction of the Sheriff Court to include declarators of nullity of marriage by amending section 5(1) of the Sheriff Courts (Scotland) Act 1907. Before that, the Court of Session had exclusive jurisdiction in relation to both declarators of marriage and declarators of nullity of marriage. The Domicile & Matrimonial Proceedings Act 1973 deals with the jurisdiction of the Court of Session in relation to such actions (Section 7(3A)) and the jurisdiction of the Sheriff Court in relation to a number of family proceedings (Section 8). Section 8 makes no direct reference to nullity of marriage and does not appear to have been amended by the 2006 Act. There appeared to be some uncertainty over the jurisdiction of the Sheriff Court in relation to declarators for nullity of marriage, particularly where the defender was not domiciled in the jurisdiction of the court, as was the case in the present action.

Ashraf v. Devon County Council (2007), unreported (Lawtel), CC, 30/8/07

Thu, 30 Aug 2007 00:00:00 GMT

Judgment Set Aside for Equitable Forebearance. A local authority successfully applied for an order to set aside a judgment against it. The authority originally made an admission of primary liability (subject to a reduction for contributory negligence) but sought to resile from this in its Defence. The allocation questionnaire, case summary and witness statements were all prepared on the basis that liability was in issue; the Judge held that this amounted to approbation and reprobation. It was held, in the alternative, that the three constituent elements of the doctrine of equitable forebearance had been established on the facts.

Ustimenko v. Prescot Management Co Ltd [2007] EWHC 1853, QBD, 3/8/07

Fri, 03 Aug 2007 00:00:00 GMT

Abuse of Civil Proceedings not a Cause of Action in itself. On the slightly unusual facts of the case, the Claimant, a litigant-in-person, brought a claim against the Defendant alleging breach of lease, harassment, libel and defamation and abuse of procedure. Tugendhat J. held that the claims for breach of lease and libel were stature barred. Abuse of civil proceedings was not a cause of action known to the law. The Court had power to reflect any abuse of civil proceedings in its determination of the appropriate order for the costs of a hearing. It was difficult to see how an unsuccessful litigant could succeed on a claim that the successful litigant had harassed him by pursuing the litigation.

Vellacott v The Convergence Group Plc & Ors [2007] EWHC 1774 (Ch) (31 July 2007)

Tue, 31 Jul 2007 00:00:00 GMT

Director liable for Company pursuing hopeless Counterclaim. Rimer J. held that where companies had irresponsibly pursued a hopeless counterclaim on the instructions and for the benefit of a controlling director, that director was made liable, jointly and severally with the companies, to pay the costs of the proceedings on the indemnity basis. It was an exceptional case in which the director was in substance the, or at least a, real party to the proceedings from start to finish.

Angelika Cawdor v Cawdor Castle (Tourism) Limited [2007] CSOH 134

Tue, 31 Jul 2007 00:00:00 GMT

Procedure Roll

Spencer v Secretary of State for Work and Pensions [2007] EWHC 1775 (QB) (27 July 2007)

Fri, 27 Jul 2007 00:00:00 GMT

Not necessary to exhaust domestic remedies to bring a Francovich claim. Holland J. held that it was not necessary for a claimant to have exhausted domestic remedies before bringing a claim against a Member State for its failure to effectively implement a Directive. This was because the rationale underpinning the Francovich procedure was that each Member State had an obligation to its own citizens to implement Directives. This sat uneasily with the notion that the State would be able to avoid liability unless and until nothing could be established against any potential tortfeasor.

Spencer v Secretary of State for Work and Pensions [2007] EWHC 1775 (QB) (27 July 2007)

Fri, 27 Jul 2007 00:00:00 GMT

PR Records Ltd v Vinyl 2000 Ltd & Anor [2007] EWHC 1721 (Ch) (18 July 2007)

Wed, 18 Jul 2007 00:00:00 GMT

Joinder of a Non-Party. An application to join a non-party to proceedings should be acceded to unless it can be said that the application is an abuse of process. At the stage of joinder, a preliminary assessment of the merits should not be attempted in order to see whether an application for a non-party costs order under CPR 48.2(1)(a) has a real prospect of success.

The Advocate General for Scotland v. Dennis Henry Montgomery [2007] CSOH 120

Fri, 13 Jul 2007 00:00:00 GMT

Motion for expenses by the defenders

Dunn v Glass Systems (UK) Ltd [2007] EWHC B2 (QB) (11 July 2007)

Wed, 11 Jul 2007 00:00:00 GMT

Overly Lengthy Pleadings an Abuse of Process. Particulars of Claim were struck out in a case where a barrister was seeking payment of fees and damages from a client on the basis that they were excessively lengthy, contained details that were irrelevant to the cause of action, contained a large number of terms that were incomprehensible and contained information that was privileged. It was said that sheer 221-page length of the Particulars made them oppressive; any trial based on that document would be unmanageable and excessively long.

Guy Darrell Minshull v. The Advocate General [2007] CSOH 124

Tue, 10 Jul 2007 00:00:00 GMT

Reparation - Minute of Amendment

David Truex, Solicitor (a firm) v Kitchin [2007] EWCA Civ 618 (04 July 2007)

Wed, 04 Jul 2007 00:00:00 GMT

Duty to Consider Public Funding. Held that a solicitor was bound at the outset to consider whether a client might be eligible for public funding rather then continue to take instructions and run up private costs whilst they gathered information before considering the client’s eligibility.

Howell & Ors v Lees Millais & Ors [2007] EWCA Civ 720 (04 July 2007)

Wed, 04 Jul 2007 00:00:00 GMT

Judge should have Recused Himself for Apparent Bias. Where a judge had had personal discussions with a partner of a firm of solicitors in relation to him joining the firm that had ended acrimoniously, the judge should have recused himself from hearing an application involving another partner at that firm as the test of bias was made out. It was clear that a fair-minded and informed observer would have formed the view that there was a real danger that the judge was biased.

Steadman-Byrne v. Amjad & ors. [2007] EWCA Civ 625

Wed, 27 Jun 2007 00:00:00 GMT

Credibility of a Party. Although a judge can form views about the evidence as a trial progresses and legitimately tell the parties what is in his mind, it is not acceptable for him to form, or give the impression of having formed, a firm view of one side’s credibility when the other side are yet to call evidence which is intended to impugn it. A fair-minded observer would have concluded that there was a real possibility that the judge had prematurely formulated a conclusion adverse to one party. It was not relevant that the comments had been made by the judge in a meeting in chambers rather than in open court.

Conticorp SA & Ors v. The Central Bank of Ecuador & Ors (The Bahamas ) [2007] UKPC 40 (20 June 2007)

Wed, 20 Jun 2007 00:00:00 GMT

Purpose of Pleadings. The Privy Council, hearing conjoined appeals from the Court of Appeal of The Bahamas, held that the ultimate purpose of one party’s pleadings was to inform the other party of the case against them. The fact that the precise ambit or extent of the relief sought might be a matter for argument did not justify allowing an application to be struck out for want of prosecution where the basic allegations were sufficiently clear. Any lack of clarity could be corrected by appropriate particulars being ordered.

Jaffray & Ors v The Society of Lloyds [2007] EWCA Civ 586 (20 June 2007)

Wed, 20 Jun 2007 00:00:00 GMT

Effect of Perjury on Appeal. Even on the assumption that the Court of Appeal’s jurisdiction to reopen a case extends by analogy from cases where a judge has been biased to cases where there is fraud, that jurisdiction should be used only in the most exceptional cases where there is no alternative remedy. In this case, where new evidence arguably demonstrated that there had been perjury at the original trial, the complaints should have been pursued by way of a fresh action to set aside the original decision rather than by reopening the appeal.

Hossain & Ors v Sonali Bank & Anor [2007] EWHC 1431 (QB) (19 June 2007)

Tue, 19 Jun 2007 00:00:00 GMT

Strike out where issue could have been dealt with in previous proceedings. The appellants had brought claims before an employment tribunal in which a certain document only became available at a late stage and the tribunal did not take it into account. A Master held that the appeal was an abuse of process because the appellants had not been adversely affected in the way they put their case. Eady J. held that the Master had been correct to strike out the claim for abuse of process as it raised issues that could have been explored in previous proceedings. He had neither misdirected himself in law nor reached any conclusion that on the facts that he was not entitled to reach.

Byrne (a minor) v The Motor Insurers Bureau Secretary of State for Transport [2007] EWHC 1268 (QB) (05 June 2007)

Tue, 05 Jun 2007 00:00:00 GMT

Limitation in MIB claims. Flaux J held that, on the true construction of Directive 84/5 and by virtue of the Community principle of equivalence, the Motor Insurers Bureau procedure relied upon by the United Kingdom as implementing the Directive should be subject to a limitation period no less favourable than that which applied to the commencement of proceedings by minors for personal injury in tort against a traced driver under section 28 of the Limitation Act 1980. Nevertheless, the claimant had no right of direct action against the MIB because it was not an emanation of the state.

Framlington Group Ltd & Anor v Barnetson [2007] EWCA Civ 502 (24 May 2007)

Thu, 24 May 2007 00:00:00 GMT

Privilege: Communications prior to Issue of Proceedings. The “without prejudice” rule could apply to communications made in the course of a dispute notwithstanding that litigation had not yet begun. The claim to privilege could not turn purely on temporal considerations. The question of proximity related to the subject matter of the dispute rather than to how long before the threat, or start, of litigation it was aired in negotiations between the parties. The crucial consideration was whether in the course of negotiations the parties contemplated or might reasonably have contemplated litigation if an agreement could not be reached.

Ceredigion County Council v. Jones & Ors [2007] UKHL 24 (23 May 2007)

Wed, 23 May 2007 00:00:00 GMT

Appeals against the Same Order. It would stultify the procedure introduced by the Administration of Justice Act 1969 s.12 and s.13 if different appeals against the same order were to proceed in parallel in different courts. The words “leave is granted” in s.13(2) had to be understood to refer to an unconditional grant of leave or a grant of leave subject to conditions which were accepted or

C Plc v P & Anor [2007] EWCA Civ 493 (22 May 2007)

Tue, 22 May 2007 00:00:00 GMT

Privilege against Self-Incrimination. The privilege against self-incrimination could not be invoked in respect of evidence which existed independently of any compulsory questioning of a defendant or any application of the Court’s compulsory discovery process. The appellant had sought to overturn a decision that images found on his computer when a search order was exercised should be disclosed to the police. It was held that the material constituted “independent evidence” even though it had derived from the appellant. The situation was not affected by the Human Rights Act because the Strasbourg court recognised the distinction between admissions obtained in breach of a defendant’s right to remain silent and material obtained by compulsory powers that had an existence independent of the will of the defendant.

Stax Claimants v Bank of Nova Scotia Channel Islands Ltd & Ors [2007] EWHC 143 (Ch) (01 February 2007)

Tue, 15 May 2007 00:00:00 GMT

Privilege: Status of Documents arising from Meeting between the Parties. Where the Defendants had sought disclosure of documents arising out of a meeting between the Claimants’ lawyers and lawyers representing Part 20 Defendants, the claimants’ claim to withhold protection based on “without prejudice” privilege would be rejected as the meeting had not concerned settlement of the dispute. The Claimants would be ordered to consider the documents and decide whether any, or any part, of them was disclosable and, if so, whether legal privilege attached to them.

Her Majesty’s Advocate v. G.F. [2007] HCJ04

Fri, 11 May 2007 00:00:00 GMT

Refusal of Judge at First Instance to Continue Preliminary Hearing

DTA Chartered Architects v. Clydeview Development Limited

Thu, 03 May 2007 00:00:00 GMT

Appeal to Sheriff Principal

McGarvey Construction Limited v. Robert Thomson Shanks [2007] CSOH 77

Fri, 27 Apr 2007 00:00:00 GMT

Procedure Roll - Fraudulent Representation

First People Solutions Group Limited for Interdict and Interdict Ad Interim v. Karen Jack and Orion Engineering Services Limited [2007] CSOH 80

Fri, 27 Apr 2007 00:00:00 GMT

Interdict - Restrictive Covenant

Shepherds Investments Ltd v Walters & Ors [2007] EWCA Civ 292 (03 April 2007)

Tue, 03 Apr 2007 00:00:00 GMT

Discretion to make orders in a split trial. The discretion of a trial judge under CPR Part 44 was wide enough to allow him, after a finding of liability in a split trial, to reserve costs to allow for the taking of an account of profits. The CPR allowed the judge to make a wide variety of orders in such circumstances; he was not required by the CPR to make an immediate decision on costs, and he had a discretion to postpone it until quantum had been finally determined.

Costain Ltd. v (1) Thomas Colledge Wilson (2) Lee Cutler (t/a Cutler Plant & L Cutler Plant [2007] EWHC 713, QBD, 2/4/07

Mon, 02 Apr 2007 00:00:00 GMT

Partial summary judgment where Defendants are jointly liable. When considering an application made pursuant to CPR Part 24 where the Defendants were jointly liable and one Defendant had subsequently entered into settlement negotiations, it was appropriate to enter a partial summary judgment for half of the amount sought as a realistic means to avoid double recovery and to reflect the loss attributable to each individual Defendant.

Mark Broadhurst v Paul Broadhurst [2007] EWHC 726, Ch.D, 30/3/07

Fri, 30 Mar 2007 00:00:00 GMT

Addition of parties under CPR Part 19. A company's application to be joined to an action as a Claimant after expiry of the limitation period was dismissed as there had not been a qualifying mistake within the meaning of CPR r.19.5(3)(a) and it was not the case that the whole claim could not be continued without the joinder for the purposes of the test of necessity in CPR r.19.5(3)(b).

Miss J v Dr P [2007] EWHC 704 (Fam) (30 March 2007)

Fri, 30 Mar 2007 00:00:00 GMT

Conflict of Law. A father's application to stay proceedings concerning his child, that had been brought by the child’s mother (in England) was stayed since those proceedings involved the same cause of action and the same parties as earlier proceedings that the father had issued in Italy. There was no aspect of the doctrine of forum conveniens upon which the court could properly rely.

Bishara v Sheffield Teaching Hospitals NHS Trust [2007] EWCA Civ 353 (26 March 2007)

Mon, 26 Mar 2007 00:00:00 GMT

The judge had erred in granting summary judgment in a claim for personal injuries as it was not possible to say that no duty of care was owed until the claim had been advanced and the evidence tested.

Nesbitt v Holt (of the Citizens Advice Bureau) [2007] EWCA Civ 249 (26 March 2007)

Mon, 26 Mar 2007 00:00:00 GMT

Proceedings in the high court, which raised the issue of whether a representative of the Citizens' Advice Bureau had had authority to settle an employment claim, and about which the employment tribunal had already made a finding, had not been an abuse of process because on the facts it would not be manifestly unfair to require the representative to defend the proceedings.

Helen Barclay v. Lanarkshire Health Board [2007] CSIH 21

Fri, 23 Mar 2007 00:00:00 GMT

Appeal from Sheriff Court

Timothy Desmond Montgomery v. Cameron Greig & Others [2007] CSOH 63

Fri, 23 Mar 2007 00:00:00 GMT

Action of Accounting - Debate

Janik, R (on the application of) v Standards Board for England [2007] EWHC 835 (Admin) (20 March 2007)

Tue, 20 Mar 2007 00:00:00 GMT

In the exceptional circumstances a case tribunal of the Adjudication Panel for England had been entitled to determine a case, alleging breach by a former local authority councillor of a code of conduct, in the absence of that individual who had presented a medical certificate in support of his contention that he was unfit to attend the hearing.

Butland v Powys County Council [2007] EWCA Civ 1298 (15 November 2007)

Thu, 15 Mar 2007 00:00:00 GMT

An indication by an individual that he wished to have all future correspondence relating to a noise investigation by a local authority sent to a particular address did not mean that that address was a proper address for the service of a noise abatement notice pursuant to the Environmental Protection Act 1990 s.160, as a noise abatement notice was not a form of communication by letter and did not come within the meaning of the word correspondence.

Les Laboratoires Servier v Apotex Inc, High Ct (Ch D: Patents Ct) 13/03/2007

Tue, 13 Mar 2007 00:00:00 GMT

Where a party made an application at a late stage for permission to withdraw an admission, there had to be plausible grounds for supposing that the admission made was false in fact. In the instant case, the evidence relied on by the claimant patentees did not throw doubt on the correctness of the admission that they had made.

A-G v BBC, CA (Civ Div) 12/03/2007

Mon, 12 Mar 2007 00:00:00 GMT

Where an injunction that prevented the publication of documents and of the legal argument involved in relation to the "cash for honours" investigation had been varied by consent so that only the reporting of the legal argument was restricted the judge had erred in refusing to discharge the injunction in relation to that legal argument.

The Trustee in Bankruptcy of Richard Canty v Canty, CA (Civ Div) 05/03/2007

Mon, 05 Mar 2007 00:00:00 GMT

The judge had been right to make a committal order and impose a sentence of six months' imprisonment against a bankrupt who had failed to give up his property after a possession order had been made against him.

Kuenyehia & Ors v International Hospitals Group Ltd [2007] EWCA Civ 274 (27 February 2007)

Tue, 27 Feb 2007 00:00:00 GMT

Security for Costs. The judge had erred in refusing to make an order for security for costs against the respondents as they had failed to show that an order for security for costs would stifle their claim against the appellant.

7E Communications Ltd. v Vertex Antennentechnik GmbH Rev 1 [2007] EWCA Civ 140 (26 February 2007)

Mon, 26 Feb 2007 00:00:00 GMT

Applications for Permission to Appeal

McFaddens Solicitors v Chandasekaran, CA (Civ Div) 26/2/2007

Mon, 26 Feb 2007 00:00:00 GMT

Appeal against Summary Judgment. In allowing an appeal against the refusal of an application for summary judgment, the judge had conducted a review within the meaning of CPR r.52.11 rather than a re-hearing.

Campaign Against Arms Trade v BAE Systems Plc, High Ct, 26/02/2007

Mon, 26 Feb 2007 00:00:00 GMT

An application for the respondent to disclose documents or information identifying the source of a leaked email, under the principle in Norwich Pharmacal Co v Customs & Excise Commissioners (1973) 117 SJ 567, would be granted where the requirements for the court's discretionary equitable jurisdiction were satisfied and the disclosure was a necessary and proportionate response in all the circumstances.

Hirst & Ors v Trustees of The Irk MacLaren Settlement & Anr, CA (Civ Div) 20/02/2007

Tue, 20 Feb 2007 00:00:00 GMT

Settlement Offer not made under CPR Part 36

Nikitin & Ors v Butler Llp & Ors [2007] EWHC 173 (QB) (09 February 2007)

Fri, 09 Feb 2007 00:00:00 GMT

Applications for Pre-action Disclosure. Applications for Norwich Pharmaceutical orders and pre-action disclosure were refused where proceedings could fairly be brought and pursued without further disclosure and the applications and any order made on them would only serve to increase costs, not save them.

Bassano & Anor v Battista [2007] EWCA Civ 370 (08 February 2007)

Thu, 08 Feb 2007 00:00:00 GMT

Administration of Justice. In a case where a judge found one account of events to be more credible and reliable than another, there was no duty on him to give exhaustive reasons for his finding provided that he had shown the basis upon which he made his decision and had given enough detail for an appellate court to understand the rationale of his judgment.

Spillman v Bradfield Riding Centre [2007] EWHC 89 (QB) (06 February 2007)

Tue, 06 Feb 2007 00:00:00 GMT

Interim Payment Applications. The determination of the amount of an interim payment had to be in accordance with CPR r.25.7(4) rather than by consideration of the purpose for which the payment was sought.

Sweetman v Shepherd & Ors [2007] EWHC 137 (QB) (02 February 2007)

Fri, 02 Feb 2007 00:00:00 GMT

Where a claimant had issued proceedings in 1997 and had persistently failed to comply with directions and orders and had not progressed the litigation for long periods of time to the extent that his conduct of the case amounted to an abuse of process, it was just to strike out his claims.

Capewell v. Revenue and Customs & Anor [2007] UKHL 2 (31 January 2007)

Wed, 31 Jan 2007 00:00:00 GMT

Receiver’s Remuneration. The CPR r.69.7(2) did not override the scheme whereby a receiver's remuneration and expenses were to be paid out of the receivership assets.

Lead Technical Services Ltd v CMC Medical Ltd, CA (Civ Div) 30/1/2007

Tue, 30 Jan 2007 00:00:00 GMT

Summary Judgment. On the evidence available to him a judge had erred in awarding summary judgment enforcing an adjudicator's decision as there was a real prospect of showing that the adjudicator had acted without jurisdiction.

Stuart James Mansell v Robert Owen Robinson [2007] EWHC 101 (QB) (30 January 2007)

Tue, 30 Jan 2007 00:00:00 GMT

Champerty. A claimant's action had not been champertous as the mere fact that litigation services had been provided in return for a promise of a share of the proceeds was not by itself sufficient to justify that promise being held to be unenforceable.

Independent Froebel Educational Institute v Sodexho Education Total E&P Soudan SA v Edmonds & Ors, CA (Civ Div) 31/01/2007

Tue, 30 Jan 2007 00:00:00 GMT

Applications for Pre-action Disclosure. Generally, when considering an application under CPR r.31.16 for pre-action disclosure, the court did not need to and should not embark upon a consideration of difficult legal issues such as justiciability and convenient forum that could more appropriately be raised after proceedings had been started.

Rabess, R (on the application of) v Commissioner of Police for the Metropolis [2007] EWHC 208 (Admin) (29 January 2007)

Mon, 29 Jan 2007 00:00:00 GMT

Antisocial Behaviour Order. A judge had been entitled to make an anti-social behaviour order against the appellant pursuant to the Crime and Disorder Act 1998 s.1(1)(a); however, the terms of the order were not specific enough and required amendment.

Independiente Ltd & Ors v Music Trading Online (HK) Ltd [2007] EWCA Civ 111 (26 January 2007)

Fri, 26 Jan 2007 00:00:00 GMT

Construction of undertakings in settlement agreement. Where a settlement involved the defendants making an undertaking to the court not to carry out certain acts, the correct construction of the settlement agreement was that they had also given the undertakings to the claimants. The claimants were therefore entitled to bring proceedings for damages for breach of contract based on the defendants' alleged breaches of the undertakings.

Chief Inspector of Schools in England v Care Standards Tribunal, High Ct (Admin) 26/1/2007

Fri, 26 Jan 2007 00:00:00 GMT

Time Limits: Care Standards Tribunal. The Care Standards Tribunal had erred in law in extending the 28-day time limit for lodging an appeal against a decision of the Chief Inspector of Schools to cancel an individual's status as registered provider of childcare.

McCoubrey v Ministry of Defence [2007] EWCA Civ 17 (24 January 2007)

Wed, 24 Jan 2007 00:00:00 GMT

Limitation Act 1980 S. 14(2). The proper approach to the question raised by the Limitation Act 1980 s.14(2) in relation to a claimant seeking to bring a personal injury claim outside the three-year period specified in s.11(4)(a) was to consider the reaction to the injury, as opposed to its possible consequences, of a reasonable person in the objective circumstances of the actual claimant, while disregarding his actual personal attributes.

Fourie v. Le Roux & Ors Rev 1 [2007] UKHL 1 (24 January 2007)

Wed, 24 Jan 2007 00:00:00 GMT

Freezing Order without notice. It was very difficult to visualise a case where the grant of a freezing order, made without notice, could be said to have been properly made in the absence of any formulation of the case for substantive relief that the applicant for the order intended to institute.

Albon (t/a N A Carriage Co) v Naza Motor Trading SDN BHD & Anor [2007] EWHC 9 (Ch) (23 January 2007)

Tue, 23 Jan 2007 00:00:00 GMT

The words "in respect of a contract" in the CPR r.6.20(5) did not require that the claim arose under a contract; they required only that the claim related to or was connected with the contract.

Cheshire Building Society v Dunlop Haywards (DHL) Ltd & Ors [2008] EWHC 51 (Comm) (18 January 2008)

Thu, 18 Jan 2007 00:00:00 GMT

An application for pre-action disclosure was refused where the case of the party seeking disclosure was not specifically formulated and it was not clear that the duty by way of standard disclosure would extend to the documents sought.

Prospere v Prospere & Anr, PC (StL) (Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Mance) 17/1/2007

Wed, 17 Jan 2007 00:00:00 GMT

Challenge to validity of a person’s title to land. A challenge to the validity of a person's title to land was held to be res judicata and not capable of being re-litigated.

Sheffield City Council v Shaw, CA (Civ Div) 12/1/2007

Fri, 12 Jan 2007 00:00:00 GMT

Harassment: Possession Order suspended with conditions. A judge had not erred in law when he suspended with conditions, rather than make outright, a possession order in respect of a property occupied by an offender who had conducted a long-term campaign of harassment against his victims, as he was entitled to find on the basis of the evidence, that the offender had a genuine chance of reforming himself.

Link Housing Association Limited v PBL Construction Limited and Others [2006] CSIH 4

Wed, 10 Jan 2007 00:00:00 GMT

Reclaiming Motion

Angelika Ilona and Others v The Right Honourable Colin Robert Vaughan 2007] CSIH 3

Wed, 10 Jan 2007 00:00:00 GMT

Reclaiming Motion –

Renewable Energy Systems Ltd v The Moray Council [2007] CSIH 2

Thu, 04 Jan 2007 00:00:00 GMT

By Order – Opposed motion for expenses:

Stuart McGowan v W &JR Watson Ltd [2006] CSIH 62

Thu, 28 Dec 2006 00:00:00 GMT

Reclaiming motion

Ali & Ors v Rauf & Ors, High Ct (Ch D) 21/12/2006

Thu, 21 Dec 2006 00:00:00 GMT

Suitability of Interim Remedies as Final Orders not decided. Although the court declined to grant the interim remedies sought by members of a charity committee, their suitability as final orders after any trial was not decided.

Demirel v Tasarruf Mevduati Sigorta Fonu [2007] EWCA Civ 799 (26 July 2007)

Thu, 21 Dec 2006 00:00:00 GMT

Jurisdiction: Presence of Assets. The presence of assets in the jurisdiction was not a pre-condition to the exercise of jurisdiction under CPR r.6.20(9).

Wakefield v Channel Four Television Corp & Ors [2006] EWHC 3289 (QB) (21 December 2006)

Thu, 21 Dec 2006 00:00:00 GMT

Confidentiality Assurances not absolute. Assurances of confidentiality of medical records given to patients by the General Medical Council when it was investigating serious criticisms of a doctor could not be regarded as absolute, since, as well as being subject to the Civil Procedure Rules 1998 and their implementation by the court, the assurances might be subject to overriding requirements that other considerations be given priority, the matter being determined by where the interests of justice lay.

Aird & Anor v Prime Meridian Ltd [2006] EWCA Civ 1866 (21 December 2006)

Thu, 21 Dec 2006 00:00:00 GMT

Where an expert joint statement was made pursuant to CPR r.35.12 and was not privileged, it did not acquire without prejudice status because it was used in mediation.

Dadourian Group International Inc & Ors v Simms & Ors [2006] EWCA Civ 1745 (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

When deciding whether to release a party in whose favour a freezing order had been made from an undertaking not to use, in contempt proceedings, information obtained from the other party as a result of the order, the court should consider whether it would be just and convenient for that information to be so used for the purpose of enforcing or policing the freezing order.

Simms v Conlon & Anor [2006] EWCA Civ 1749 (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

In the circumstances it was not an abuse of the court process to challenge the factual findings in an earlier action as it was not manifestly unfair to the parties to the later proceedings that the same issues should be relitigated and to permit such relitigation did not bring the administration of justice into disrepute.

Diamond v Mansfield & Ors [2006] EWHC 3290 (QB) (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

Whilst the Bar Council, when considering or dealing with a prosecution in respect of a disciplinary matter, had to apply the principles of natural justice and could not act out of improper motive, malice or bad faith, that was a duty owed to all its members and did not arise out of a contract with any one individual member.

Thames Trains Ltd & Anor v Adams [2006] EWHC 3291 (QB) (20 December 2006)

Wed, 20 Dec 2006 00:00:00 GMT

No duty to mention offer of acceptance of money in Court in context of subsequent offer. In the circumstances, a solicitor was not under a duty to mention an offer of acceptance of money in court when the opponent began negotiating a higher offer in ignorance of the earlier offer of acceptance.

English & Americal Insurance Co Ltd v AXA Re SA, High Ct (Comm) 20/12/2006

Wed, 20 Dec 2006 00:00:00 GMT

Summary Judgment. Summary judgment was granted to an insurer against a reinsurer on grounds that the insurer's settlement with the assured was, in law, the settlement of a claim that fell within the risks covered by the reinsurance contracts. The insurer was able to rely on purported "without prejudice" letters from the reinsurer as evidence that the reinsurer had no defence to a claim up to the sum specified therein.

Paula Ferns v Scottish Homes

Wed, 20 Dec 2006 00:00:00 GMT

Appeal

Tankaria & Ors v Morgan & Ors, High Ct (Ch D) 19/12/2006

Tue, 19 Dec 2006 00:00:00 GMT

Given that the claimants had been largely successful in relation to the relief claimed in Part 8 proceedings issued against the defendant solicitors, the master had been wrong to make no order as to costs. Having regard to the issues on which the claimants had succeeded, they were awarded 75 per cent of their costs.

Robert Bain v.m Andrew Robert Bain Others [2006] CSOH198

Mon, 18 Dec 2006 00:00:00 GMT

By Order - Motion for Summary Decree

Beriston Limited v. Dumbarton Motor Boat and Sailing Club Others [2006] CSOH 190

Fri, 15 Dec 2006 00:00:00 GMT

Debate - Interdict

Tweed v. Parades Commission for Northern Ireland (Northern Ireland) [2006] UKHL 53 (13 December 2006)

Wed, 13 Dec 2006 00:00:00 GMT

Where an application for judicial review turned on the proportionality of the defendant's actions, the disclosure of documents would be ordered more readily than in an application where such an issue did not arise. In cases involving issues of proportionality, disclosure should be carefully limited to the issues which required it in the interests of justice.

Sayers & Ors v Smithkline Beecham Plc & Ors, High Ct, 11/12/2006

Mon, 11 Dec 2006 00:00:00 GMT

The court made orders in relation to the case management of the MMR/MR vaccine litigation, in particular as to the extension of time for the serving of particulars of claim and a medical report and for relief from the sanction of striking out, and also as to whether the status of the litigation as group litigation should be brought to an end.

Cattley & Anor v Pollard & Ors [2006] EWHC 3130 (Ch) (07 December 2006)

Thu, 07 Dec 2006 00:00:00 GMT

The Limitation Act 1980 s.21(1)(a) did not apply to dishonest assistance claims and the normal primary period of limitation of six years from the date of the accrual of the cause of action applied. In the circumstances, s.21(3) and s.32 of the Act applied to postpone the running of the primary period of limitation with the consequence that the dishonest assistance claims were not time barred.

Richardson v Watson & Anor [2006] EWCA Civ 1662 (06 December 2006)

Wed, 06 Dec 2006 00:00:00 GMT

A case management decision not to adjourn the determination of the appropriate measure of indexation for periodical payments due to the claimant for his future care pending the outcome of an appeal to the Court of Appeal in another case had been appropriate.

CC v AB [2006] EWHC 3083 (QB) (04 December 2006)

Mon, 04 Dec 2006 00:00:00 GMT

There was no general rule that an adulterer could never obtain an injunction to restrain the publication of matters relating to his adulterous relationship. In the circumstances an interim injunction was granted to restrain the respondent from publicising the fact that the applicant had had an affair with the respondent's wife.

The Stax Claimants v Bank of Novia Scotia Channel Islands Ltd. & Ors [2006] EWHC 3043 (Ch) (30 November 2006)

Thu, 30 Nov 2006 00:00:00 GMT

The court declined to make a final ruling on whether certain lead cases would be selected for trial from those of 45 claimants, although it favoured that route, and directed that a further case management conference should be held when the claimants had clarified issues in respect of after the event insurance and their attitude to the lead case approach.

Fresh Catch Limited v. CGU Insurance plc [2006] CSOH 179

Thu, 23 Nov 2006 00:00:00 GMT

Additional Fee

Barry Tamburrini v. Advocate General

Wed, 01 Nov 2006 00:00:00 GMT

Preliminary Proof - Prescription

Keen Philips v Field, CA (Civ Div) 26/10/2006

Thu, 26 Oct 2006 00:00:00 GMT

The court's general case management power to extend time and to act on its own initiative was not cut down by the CPR r.3.8. The court was not powerless to extend time unless or until an application for relief from a sanction was made by the party in default.

Stallwood v David & Anor [2006] EWHC 2600 (QB) (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

Under CPR Part 35 there were circumstances in which a party dissatisfied with an amended opinion from their expert after the experts' discussion could obtain permission to rely on evidence adduced from an additional expert.

St Helens Metropolitan Borough Council v Barnes [2006] EWCA Civ 1372 (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

For the purposes of the expiry of the limitation period under the Limitation Act 1980 s.11(3) a claim was "brought" when a claimant's request for the issue of a claim form was delivered to the correct court office during its opening hours.

Miller v Garton Shires (a firm) [2006] EWCA Civ 1386 (25 October 2006)

Wed, 25 Oct 2006 00:00:00 GMT

There was no principle or practice that the court could not summarily dismiss a claim where there was untested paper evidence supporting it.

O'Byrne v Aventis Pasteur Msd Ltd. [2006] EWHC 2562 (QB) (20 October 2006)

Fri, 20 Oct 2006 00:00:00 GMT

In an application for the substitution of a new party under the Limitation Act 1980, s.35(6)(a) of the Act could not be interpreted to mean that a party's name was not given "in mistake" where a claimant, even though under a mistake at the time when the action was commenced, was not under any mistake about the identity of the party against whom it was intending to proceed at the time when the limitation period expired.

Thomas v The Home Office [2006] EWCA Civ 1355 (19 October 2006)

Thu, 19 Oct 2006 00:00:00 GMT

It was open to the parties to agree under CPR r.2.11 to extend time for the service of a claim form under CPR r.7.5. The written agreement of the parties under r.2.11 of the Rules did not have to be in a single document and could be constituted by an exchange of letters.

Philips & Ors v Symes & Ors, High Ct (Ch D) 16/10/2006

Mon, 16 Oct 2006 00:00:00 GMT

An order imposing a two-year stay on all proceedings between the parties relating to matters raised in an action between them was not a civil restraint order. The court had exercised its case management powers under CPR r.3.1(2) to achieve the overriding objective.

CGU International Insurance Plc & Ors v Astrazeneca Insurance Co Ltd, CA (Civ Div) 16/10/2006; Independent, October 24, 2006

Mon, 16 Oct 2006 00:00:00 GMT

The Court of Appeal had a residual jurisdiction to enquire into unfairness in the process of a refusal of permission to appeal under the Arbitration Act 1996 s.69(8) but there was no such unfairness in the instant case.

Royal Scottish Assurance plc v. Scottish Equitable plc [2006] CSIH 47

Wed, 11 Oct 2006 00:00:00 GMT

Reclaiming Motion

Royal Scottish Assurance plc v. Scottish Equitable plc [2006] CSIH 47

Wed, 11 Oct 2006 00:00:00 GMT

Reclaiming Motion

Linda Jordan v. Quarriers & Joseph Richard Nicholson [2006] CSOH 155

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Linda Jordan v. Quarriers & Joseph Richard Nicholson [2006] CSOH 155

Tue, 10 Oct 2006 00:00:00 GMT

Procedure Roll - Prescription

Casey v Cartwright [2006] EWCA Civ 1280 (05 October 2006)

Thu, 05 Oct 2006 00:00:00 GMT

The Court of Appeal gave guidance on the procedure to be followed where a defendant in a low-velocity road traffic claim sought to adduce his own expert evidence on causation.

Nesheim v Kosa, High Ct (Ch D) 4/10/2006

Wed, 04 Oct 2006 00:00:00 GMT

It had been right to grant a party in a claim under the Inheritance (Provision for Family and Dependants) Act 1975 retrospective permission for service outside the jurisdiction where to deny him permission would be contrary to the overriding principles of the Civil Procedure Rules 1998.

Nelson & Anor v Clearsprings (Management) Ltd [2006] EWCA Civ 1252 (22 September 2006)

Fri, 22 Sep 2006 00:00:00 GMT

Application to set aside judgment – proceedings not served in accordance with CPR. Where judgment was given at trial against a defendant who had not been served with the proceedings in accordance with the CPR and had no knowledge of the proceedings, an application to set aside the judgment was not governed by CPR r.39.3(5).

River Thames Society v First Secretary of State & Ors, High Ct, 22/9/2006

Fri, 22 Sep 2006 00:00:00 GMT

Substitution of parties – CPR Part 19 – not applicable to public law proceedings. Where a party had applied to be substituted as the claimant in proceedings under the Town and Country Planning Act 1990 s.288, the court concluded that CPR Part 19 did not apply to public law proceedings and that the issue of substitution fell to be decided under the court's inherent jurisdiction.

London Borough of Brent, R (on the application of) v FED 2000 & Ors [2006] EWHC 2282 (Admin) (12 September 2006)

Tue, 12 Sep 2006 00:00:00 GMT

Restraining Order preventing access to primary school premises. In the circumstances the local education authority was entitled to an order restraining the defendants from preventing access to premises used as a primary school.

Melfort Pier Holidays Limited v. The Melfort Club and Others [2006] CSOH 1 NUMBER30

Thu, 24 Aug 2006 21:00:00 GMT

Interdict

Balmoral Group Ltd v Borealis (UK) Ltd & Ors Rev 1 [2006] EWHC 2228 (Comm) (23 August 2006)

Wed, 23 Aug 2006 00:00:00 GMT

Application for permission to appeal – CPR r.52.3(2). CPR r.52.3(2) and the relevant practice direction allowed a would-be appellant to apply to the lower court for permission to appeal at the hearing that the decision to be appealed was made or at a later date, if, on an application made at that hearing, the lower court adjourned the hearing in order to allow such application to be made later. Otherwise, the application had to be made to the appeal court.

Prebble C & Prebble H (trading in partnership) v Revenue & Customs [2006] UKVAT V19722 (18 August 2006)

Fri, 18 Aug 2006 00:00:00 GMT

Appeal against civil penalty – no rehearing permitted. It was not appropriate to direct a rehearing of an appeal against a civil penalty for dishonest conduct where the evidence sought to be adduced on the rehearing could and should have been dealt with in the previous hearings.

Stoke On Trent City Council v Walley [2006] EWCA Civ 1137 (31 July 2006)

Mon, 31 Jul 2006 00:00:00 GMT

In the circumstances it had not been demonstrated that a local authority's withdrawal of its pre-action admission of liability was either an abuse of the process of the court or was otherwise likely to obstruct the just disposal of the case within CPR r.3.4(2)(b).

Green & Ors v Gaul & Ors [2006] EWCA Civ 1124 (28 July 2006)

Fri, 28 Jul 2006 00:00:00 GMT

Limitation Act – S.22(a). The 12-year period under the Limitation Act 1980 s.22(a) to bring an action in respect of any claim to the personal estate of a deceased had no application to a claim to remove a personal representative of the estate. Claims against the representative to provide an account of the deceased's assets and make payment due were claims that fell within s.21(1)(b) of the Act, and although the defence of laches to the claims was not excluded by s.21(1)(b), it was not made out on the facts.

East Ayrshire Council v. Alan Robertson & Deborah Robertson

Fri, 28 Jul 2006 00:00:00 GMT

Appeal to Sheriff Principal Against Extracted Inte

James Morris (AP) v. Fife Council [2006] CSOH 117

Fri, 28 Jul 2006 00:00:00 GMT

Reparation - Minute of Amendment

Brewer, R (on the application of) v Supreme Court Costs Office [2006] EWHC 1955 (Admin) (27 July 2006)

Thu, 27 Jul 2006 00:00:00 GMT

Practitioners should ensure that where separate and to some extent conflicting costs claims were to be presented, they should be presented together in a manner that made clear the relationship between them.

McHugh v Gray [2006] EWHC 1968 (QB) (27 July 2006)

Thu, 27 Jul 2006 00:00:00 GMT

The judge had been entitled not to exercise his discretion to disapply the limitation period in a case where the claimant was suing a psychiatrist, as a result of an allegedly negligent diagnosis, seven years out of time.

Regan v Paul Properties DPF No 1 Ltd. & Ors [2006] EWHC 1941 (Ch) (27 July 2006)

Thu, 27 Jul 2006 00:00:00 GMT

In the circumstances the court declined to enforce a cross-undertaking in damages given when interim injunctive relief was sought in an action concerning interference with the claimant's right to light.

R v Highburn Coroner Magistrates’ Court & Ors, DC, 26/7/2006

Wed, 26 Jul 2006 00:00:00 GMT

Anti-social Behaviour Act 2003 – Guidance on Closure Orders. The court gave guidance on the fair conduct of proceedings for a closure order under the Anti-social Behaviour Act 2003 s.2.

Moreton, R (on the application of) v Medical Defence Union Ltd. [2006] EWHC 1948 (Admin) (26 July 2006)

Wed, 26 Jul 2006 00:00:00 GMT

The Medical Defence Union was not amenable to judicial review. It could neither be said to be a "public body" nor did it exercise a "public function" in a respect that affected the claimant.

Pelling v Bruce-Williams [2006] EWCA Civ 1046 (25 July 2006)

Tue, 25 Jul 2006 00:00:00 GMT

It was appropriate to discharge an injunction that prohibited the identification of a child in family proceedings where the proceedings were over. However in the instant case it was not appropriate to set the injunction aside as it had been correctly made at the time.

Toth v Jarman [2006] EWCA Civ 1028 (19 July 2006)

Wed, 19 Jul 2006 00:00:00 GMT

A party who wished to call an expert with a potential conflict of interest should disclose details of that conflict at as early a stage in the proceedings as possible.

R v Secretary of State for Constitutional Affairs, CA (Civ Div) 13/7/2006; Independent, July 18, 2006

Tue, 18 Jul 2006 00:00:00 GMT

The court substituted a general restraint order made against a litigant for an extended civil restraint order as the judge had had no power to make a general civil restraint order against the litigant in circumstances where, for the purpose of the CPR Part 3 PD C para.4, no extended civil restraint order had ever been made against him at the time of the hearing.

Maureen McGill v. Thomas McGill and Margaret McGill

Fri, 07 Jul 2006 00:00:00 GMT

Appeal to Sheriff Principal - Refusal to allow a D

Enfield LBC v Sivanandan, CA (Civ Div) 29/6/2006

Thu, 29 Jun 2006 00:00:00 GMT

The court exercised its discretion and declined to make a civil restraint order in respect of litigant who had repeatedly issued claims without merit because, in the circumstances, the point at which it would be right to make the order had not been reached.

M.P. v. Sister Zoe O'Neill & Others [2006] CSOH 93

Fri, 16 Jun 2006 00:00:00 GMT

Preliminary Proof - Timebar

Northamptonshire County Council v Daleman [2006] EWCA Civ 1354 (23 May 2006)

Tue, 23 May 2006 00:00:00 GMT

Suspended order for committal. A suspended order for committal for contempt of court was properly made and was not open to challenge.

Nussberger & Anor v Phillips & Anor [2006] EWCA Civ 654 (19 May 2006)

Fri, 19 May 2006 00:00:00 GMT

CPR r.6.9 – Power to dispense with service of claim form. In the circumstances the exercise of the power to dispense with service of the claim form under CPR r.6.9 had not achieved its intended effect of giving English proceedings priority over Swiss proceedings under the Lugano Convention Art.21, and even if it had been effective it would have been inappropriate to have used the power for that purpose.

Director of the Assets Recovery Agency v Woodstock [2006] EWCA Civ 741 (18 May 2006)

Thu, 18 May 2006 00:00:00 GMT

Summary judgment for recovery order under Proceeds of Crime Act 2002. Where at a summary judgment stage it was not possible to say that a defendant was bound to be disbelieved on his contention that the source of his money was loans from friends and not unlawful conduct, there was clearly a triable issue and the Director of the Assets Recovery Agency should not have been granted summary judgment on her claim for a recovery order under the Proceeds of Crime Act 2002 s.243.

Royal & Sun Alliance Insurance Plc & Anr v MK Digital Fze (Cyprus) Ltd & Ors, CA (Civ Div) 17/5/2006

Wed, 17 May 2006 00:00:00 GMT

Jurisdiction issues. A French company had failed to show that there was a good arguable case that the English court had jurisdiction under the Geneva Convention on the Contract for the International Carriage of Goods by Road (CMR) Art.31 or under the Brussels Convention 1968 Art.2 or Art.5(1) to deal with proceedings brought in respect of the theft of a consignment of mobile phones.

Konkola Copper Mines Plc & Anor v Coromin Ltd. & Ors No.2 [2006] EWHC 1093 (Comm) (16 May 2006)

Tue, 16 May 2006 00:00:00 GMT

Service out of the jurisdiction. It should not be open to a party seeking to justify service out of the jurisdiction in contravention of a foreign jurisdiction clause to rely as grounds for strong cause or reasons the risk of inconsistent decisions of different courts when he ought to have appreciated the existence of that risk at the time when he entered into the exclusive jurisdiction clause.

Norbrook Laboratories Ltd v Tank & Anor [2006] EWHC 1055 (Comm) (12 May 2006)

Fri, 12 May 2006 00:00:00 GMT

Arbitration. An arbitrator's conduct in contacting witnesses directly but failing to inform the parties to the arbitration that he had done so and failing to keep or disclose a record of what they said constituted a failure to properly conduct the proceedings. In the circumstances that failure caused substantial injustice.

Law Society v. Sephton & Co (a firm) & Ors [2006] UKHL 22 (10 May 2006)

Wed, 10 May 2006 00:00:00 GMT

Professional negligence claim – Law Society cause of action. The Law Society's cause of action in negligence against accountants in respect of negligent reports on a solicitor's practice accrued when it first received a claim on the Solicitors' Compensation Fund from a client whose money was misappropriated by the solicitor, because until such a claim was actually made no loss or damage had been sustained by the fund.

Tods Murray WS v Arakin Limited [2006] CSOH 64

Fri, 28 Apr 2006 00:00:00 GMT

Action for Payment

Folks v Faizey [2006] EWCA Civ 381 (06 April 2006)

Thu, 06 Apr 2006 00:00:00 GMT

Appointment of Litigation Friend. A judge had erred in requiring the trial of a preliminary issue as to whether the facts justified the appointment of a litigation friend for the appellant, as the application to appoint a litigation friend was a bona fide one supported by the evidence.

Zissis v Lukomski & Anor [2006] EWCA Civ 341 (05 April 2006)

Wed, 05 Apr 2006 00:00:00 GMT

Statutory Appeal under CPR Part 52. An appeal to the county court against an award under the Party Wall etc. Act 1996 s.10(17) was a statutory appeal governed by CPR Part 52 and the appeal court had ample powers under CPR Part 52 to enable it to determine the appeal justly.

Director of the Assets Recovery Agency v Ashton, High Ct (QBD Admin) 31/3/2006

Fri, 31 Mar 2006 00:00:00 GMT

Civil Recovery Orders not penal or in breach of ECHR. Civil recovery orders made pursuant to the Proceeds of Crime Act 2002 were not penal in nature and did not breach the European Convention on Human Rights 1950 Art.7.

Indicii Salus Ltd v Chandrasekaran & Ors [2006] EWHC 680 (Ch) (27 March 2006)

Mon, 27 Mar 2006 00:00:00 GMT

Application for Search Order - No abuse of process. Points of claim served by the respondents, whereby they alleged that there had been an abuse of process on the part of the applicant in seeking and obtaining a search order, were struck out as they stood no real prospect of success.

EDO Technology Ltd & Anr v Campaign to Smash EDO & Ors, High Ct, 23/3/2006

Thu, 23 Mar 2006 00:00:00 GMT

Interim Injunctions. Claimants who secured interim injunctions pending a speedy trial had to carry out their obligation to work diligently towards achieving a speedy trial.

Perkins & Anor v Devoran Joinery Company Ltd & Ors [2006] EWHC 582 (QB) (22 March 2006)

Wed, 22 Mar 2006 00:00:00 GMT

Proceedings not an abuse of process. In the circumstances it was not an abuse of process for the claimants to bring proceedings against the defendant joinery company alleging design defects in windows and doors that it had fitted, even though they had previously brought proceedings alleging defective workmanship only.

Smith v Kvaerner Cementation Foundations Ltd & Anor [2006] EWCA Civ 242 (21 March 2006)

Tue, 21 Mar 2006 00:00:00 GMT

No waiver of right to complain of Recorder’s bias. A decision by a party to agree to a recorder continuing to hear an action in circumstances where the recorder's professional connection with the other party precluded him from sitting as a judge in the case did not amount to waiver of his right to complain of bias as the decision was not made freely and was not made with knowledge of all the relevant information.

Weissfisch v Julius, [2006] EWCA Civ 218 (08 March 2006)

Wed, 08 Mar 2006 00:00:00 GMT

Arbitration. Where the parties had expressly agreed that their disputes should be resolved by an arbitrator under arbitration that would be governed by Swiss law and have its seat in Switzerland, the natural consequence of that agreement was that any issues as to the validity of the unusual provisions of the arbitration agreement would fall to be resolved in Switzerland according to Swiss law. In the circumstances there were cogent reasons why the arbitrator should not be restrained by interim injunction from holding a hearing to consider his own jurisdiction.

Prince Radu of Hohenzollern v Houston & Anor [2006] EWHC 231 (QB) (07 March 2006)

Tue, 07 Mar 2006 00:00:00 GMT

Error in refusing adjournment. The master had erred in refusing an adjournment so as to allow the claimant to deal with evidence served by the defendant close to the date of trial where there was not equality of arms between the parties and where the evidence served by the defendant required to be answered.

Zambia v Meer Care & Desai (a firm) & Ors Rev 1 [2006] EWCA Civ 390 (07 March 2006)

Tue, 07 Mar 2006 00:00:00 GMT

The right to attend a civil trial. The right to attend a civil trial was not an absolute right and the judge had been correct to refuse to stay proceedings despite the fact that the appellants would be unable to attend the proceedings as they had surrendered their passports as part of their bail conditions in Zambia. An order ring-fencing proceedings in England provided appropriate protection to the appellants.

Haward & Ors v. Fawcetts (a firm) & Ors [2006] UKHL 9 (1 March 2006)

Wed, 01 Mar 2006 00:00:00 GMT

Limitation Act 1980 – Date of knowledge. The requisite knowledge for the purposes of the Limitation Act 1980 s.14A(8)(a) was knowledge of the facts constituting the essence of the complaint of negligence. In the circumstances the relevant date was not when the claimant first knew that he might have a claim for damages but the earlier date when he first knew enough to justify setting about investigating the possibility that the defendant's advice was defective.

Unity Trust Bank PLC V. (First) Martin Frost & (SECOND) Linda Stuart Anderson or Frost [2006] CSIH 14

Wed, 01 Mar 2006 00:00:00 GMT

Reclaiming Motion Following Debate on Procedure Ro

Gaydamak & Anor v. UBS Bahamas Ltd & Anor (Bahamas) [2006] UKPC 8 (28 February 2006)

Tue, 28 Feb 2006 00:00:00 GMT

Reinstatement of claim which had been struck out. Where a blameless absent litigant whose case had been struck out was seeking its reinstatement, and where there had been no delay and there was no likelihood of prejudice to the other parties, it was for the other parties to show that the case had no chance of success. Prima facie justice required that the case be reinstated.

Adam v Ali, CA (Civ Div) 21/2/2006

Tue, 21 Feb 2006 00:00:00 GMT

Limitation Act 1980. The court had no jurisdiction under the Limitation Act 1980 s.33 to disapply the primary limitation period if the claimant had begun an action between the same parties within the limitation period, but that rule had to be confined to that narrow situation and did not apply where the first action had not been commenced in time.

WWF-World Wide Fund for Nature & Anor v World Wrestling Federation Entertainment Inc [2006] EWHC 184 (Ch) (16 February 2006)

Thu, 16 Feb 2006 00:00:00 GMT

Principles applicable to assessment of damages. The court set out the principles applicable to the assessment of damages under the principle in Wrotham Park Estate Co Ltd v Parkside Homes Ltd (1974) 1 WLR 798.

Soir Contracting & Ors v Desai [2006] EWCA Civ 245 (14 February 2006)

Tue, 14 Feb 2006 00:00:00 GMT

Default judgment. Where a judgment in default had been granted in a claim based upon an alleged debt, and the appellant had acknowledged twice that the debt had arisen and had been outstanding, the court was entitled to dismiss her application to set aside the default judgment on the grounds that the defence had no real prospect of success.

Bailey v Warren [2006] EWCA Civ 51 (07 February 2006)

Tue, 07 Feb 2006 00:00:00 GMT

Litigant’s capacity to approve a settlement. In determining whether a litigant had the mental capacity to approve a settlement on liability, the court's enquiry should be focused on a litigant's capacity to conduct the proceedings as a whole and not judged on a piecemeal basis.

Vellacott v The Convergence Group Plc & Anr, High Ct (Ch D) 3/2/2006

Fri, 03 Feb 2006 00:00:00 GMT

Order for specific disclosure. An order for specific disclosure of certain documents was made where those documents were potentially significant to the disposal of a large counterclaim.

Fairways v Palmer, High Ct (Ch D) 31/1/2006

Tue, 31 Jan 2006 00:00:00 GMT

Service within the jurisdiction not effective where Defendant out of the jurisdiction. It was not open to a court, in the light of the CPR r.6.5(1), to conclude that proceedings issued for service within the jurisdiction could properly be served when, at the time of deemed service, the defendant was physically out of the jurisdiction.

Sinclair Investment Holdings SA v Cushnie & Ors [2006] EWHC 219 (Ch) (27 January 2006)

Fri, 27 Jan 2006 00:00:00 GMT

Summary judgment. In the circumstances, the applicant was entitled to summary judgment in his claim for damages for fraud against the respondent where the respondent's challenge to the authenticity of an agreement that formed the basis of the applicant's claim had no real prospect of success.

Bluzwed Metals Ltd & Ors v Trans-World Metals SA & Ors, High Ct (Ch D) 26/1/2006

Thu, 26 Jan 2006 00:00:00 GMT

Order for specific performance. An order for specific performance was granted where on the construction of a settlement agreement between the parties it was clear that one of the parties had not used their best endeavours to secure the co-operation of a third party as provided in the agreement.

Kuenyehia & Ors v International Hospitals Group Ltd, CA (Civ Div) 25/1/2006

Wed, 25 Jan 2006 00:00:00 GMT

Power to dispense with service – Only to be exercised in exceptional cases. It required an exceptional case before the court would exercise its power to dispense with service under CPR r.6.9 and the power was unlikely to be exercised save where the claimant had either made an ineffective attempt to serve by one of the methods permitted by r.6.2 or had served in time in a manner which involved a minor departure from one of the permitted methods of service. The failure to comply with the requirement to obtain written consent to service by fax in para.3.1(1) of the CPR Part 6 Practice Direction could not fairly be characterised as no more than a minor departure from the provisions of CPR r.6.2(1)(e).

Kuenyehia & Ors v International Hospitals Group Ltd. [2006] EWCA Civ 21 (25 January 2006)

Wed, 25 Jan 2006 00:00:00 GMT

Service at address provided by Defendant. The language of the Civil Procedure Rules 1998 compelled the conclusion that, where a defendant had given the claimant a solicitor's address for service, the claim form may be validly served at that address by one of the permitted methods of service.

Mark Easdon v A Clarke Company (Smithwick) Limited [2006] CSOH 12

Wed, 25 Jan 2006 00:00:00 GMT

Personal Injury- Motion for issues - Proof or Jury

Dale McFarlane v Barry Thain James Campbell, The Motor Insurers Bureau [2006] CSIH 3

Tue, 24 Jan 2006 00:00:00 GMT

Civil Reparation

Graeme Carling v W.P Bruce Limited [2006] CSOH 7

Fri, 20 Jan 2006 00:00:00 GMT

Personal Injury - Competency of Application for In

Morrison & Anor v AWG Group Ltd & Anor [2006] EWCA Civ 6 (20 January 2006)

Fri, 20 Jan 2006 00:00:00 GMT

Automatic disqualification of judge for apparent bias. The disqualification of a judge for apparent bias was not a discretionary matter and if there was a real possibility of bias the judge was automatically disqualified.

Koshy v Deg-Deutsche Investitions-Und Entwicklungsgesellschaft Mbh [2006] EWHC 17 (Ch) (20 January 2006)

Fri, 20 Jan 2006 00:00:00 GMT

Appeals – Election not to have matter remitted to lower Court means abandonment of alternative procedural routes. Where a party had elected at an appeal hearing not to have an issue remitted to the Chancery Division so that it would be dealt with by the Court of Appeal, he had accepted that the price of pursuing his appeal was the abandonment of all alternative procedural routes in the event of failure and therefore the advancement of a subsequent claim which raised the same issue was an abuse of process of the court.

Investment Invoice Financing Ltd v Limehouse Board Mills Ltd [2006] EWCA Civ 9 (18 January 2006)

Wed, 18 Jan 2006 00:00:00 GMT

Fresh proceedings stayed where costs of previous proceedings not yet dealt with. Where a winding-up petition presented to obtain payment of certain debts had been dismissed, to start fresh proceedings to recover the same debts without paying the costs of the winding-up petition was abusive and the court had power to stay the proceedings until the costs of the petition had been paid.

Aer Lingus v Gildacroft Ltd & Anor [2006] EWCA Civ 4 (17 January 2006)

Tue, 17 Jan 2006 00:00:00 GMT

Limitation Act s. 10(3). The judgment or award referred to in the Limitation Act 1980 s. 10(3) as setting the relevant date for the running of time against a tortfeasor who sought contribution under the Civil Liability (Contribution) Act 1978 was a judgment or award that ascertained the quantum, and not merely the existence, of the tortfeasor's liability.

Konkola Copper Mines Plc & Anor v Coromin Ltd & Ors [2006] EWCA Civ 5 (17 January 2006)

Tue, 17 Jan 2006 00:00:00 GMT

Stay not in the interests of justice. In all the circumstances a stay of Part 20 proceedings against reinsurers on case management grounds was not in the interests of justice. It would not be right for the appellate court to interfere with the exercise of the judge's discretion not to enforce a Zambian exclusive jurisdiction clause, even on the hypothesis that the reinsurers had established a much stronger argument in favour of the applicability of such a clause than the Part 20 claimant's argument in favour of an English jurisdiction clause.

Ian Stuart (as Guardian to William Finlayson) v Scottish Rig Repairers & MacGregor Services Limited

Fri, 13 Jan 2006 00:00:00 GMT

Motion for late lodging of expenses and accounts

Jackson v MOD, CA (Civ Div) 12/1/2006

Thu, 12 Jan 2006 00:00:00 GMT

Joint settlement meetings held to be confidential and offers not considered by Court unless ‘Without Prejudice as to costs’. The process at joint settlement meetings was confidential and any offers to settle could not be considered by the court unless stated to be without prejudice as to costs. The judge had correctly exercised his discretion when awarding costs and had taken into account the fact that the respondent had only just beaten a Part 36 payment in.

Tajik Aluminium Plant v Ermatov & Ors [2006] EWHC 8 (Ch) (11 January 2006)

Wed, 11 Jan 2006 00:00:00 GMT

Injunction not appropriate on the facts. An injunction was not appropriate where the basis of a claim to a proprietary interest in profits made as a result of an alleged fraud was uncertain.

Dayman v Canyon Holdings Ltd, High Ct (Ch D) 11/1/2006

Wed, 11 Jan 2006 00:00:00 GMT

Order for specific disclosure. The court had jurisdiction under CPR r.31.12 to make an order for specific disclosure at any time whether or not standard disclosure had taken place.

Brackencroft Limited v. Silvers Marine Limited

Fri, 06 Jan 2006 00:00:00 GMT

Expenses:

Donald Brown v Nithsdale District Licensing Board

Thu, 22 Dec 2005 00:00:00 GMT

Licensing (Scotland) Act 1976 - S.39 Appeal & fail

De Grey & Anor v Ford & Anor [2005] EWCA Civ 1791 (22 December 2005)

Thu, 22 Dec 2005 00:00:00 GMT

Committal Orders. Committal orders sentencing the appellants to 42 days' imprisonment, imposed following flagrant breaches of a possession order, were not disproportionate.

Sowerby v Charlton, CA (Civ Div) 21/12/2005

Wed, 21 Dec 2005 00:00:00 GMT

CPR Part 14 – Admissions. It was held that CPR r.14.1 did not embrace pre-action admissions of liability, and a number of authorities that had supported the pre-CPR regime in terms of pre-action admissions were no longer to be considered reliable.

R (on the application of AN) v Mental Health Review Tribunal & Ors, CA (Civ Div) 21/12/2005

Wed, 21 Dec 2005 00:00:00 GMT

Mental Health Act 1983. In determining whether to discharge patients detained under hospital orders, mental health review tribunals were required to apply the civil standard of proof in assessing whether the criteria for discharge under Ss.72 & 73 of the Mental Health Act 1983 were met.

Ewing v Office of the Deputy Prime Minister & Anor [2005] EWCA Civ 1583 (20 December 2005)

Tue, 20 Dec 2005 00:00:00 GMT

Case Management & Costs in relation to Vexatious Litigants. The court gave guidance on the procedure to be adopted, with case management and applications for costs, where a vexatious litigant made an application for leave to bring proceedings at the same time as an application to be joined in a concurrent application for permission to seek judicial review.

Kyrri-Royle & Ors v Burger King Ltd & Ors, CA (Civ Div) 20/12/2005

Tue, 20 Dec 2005 00:00:00 GMT

Compromise Agreements: Strike Out & Summary Judgment. In the circumstances, the language of compromise agreements made between the parties was wide enough to include any claim on the grounds of conspiracy and the judge was right to strike out the claims and award summary judgment in favour of three of the respondents.

Director of the Assets Recovery Agency v Green & Ors, High Ct, 16/12/2005

Fri, 16 Dec 2005 00:00:00 GMT

Recovery Orders: Proceeds of Crime Act 2002 Pt 5. In civil proceedings for a recovery order under Part 5 of the Proceeds of Crime Act 2002, the Assets Recovery Agency did not need to allege the commission of any specific criminal offence, but had to set out the matters that were alleged to constitute the particular kind(s) of unlawful conduct by, or in return for, which the property had been obtained. A claim for civil recovery could not be sustained solely upon the basis that a defendant had no identifiable lawful income to warrant his lifestyle.

Gosfield School Ltd v Birkett Long (A Firm) & Anr, High Ct, 16/12/2005

Fri, 16 Dec 2005 00:00:00 GMT

Failed professional negligence case – Legal advice not negligent. In a procedurally complicated claim which was subject to the common law doctrine of privity of contract, legal representatives for a school were not found to have been negligent in advising settlement of a claim by parents of two pupils without expressly advising the school that such a settlement did not bar the pupils themselves from bringing their own claims in future.

Cinpres Gas Injection Ltd v Melea Ltd, High Ct (Ch D) 14/12/2005

Wed, 14 Dec 2005 00:00:00 GMT

Applications Without Notice. An application without notice was only appropriate for a very serious application, where service of notice would frustrate the purpose of the order. The more serious the nature of the application, the more important it was to give notice. Where notice was not given it was necessary to justify that failure to the judge.

R (on the application of SR) v Mental Health Review Tribunal, High Ct (QBD - Admin) 14/12/2005

Wed, 14 Dec 2005 00:00:00 GMT

Mental Health Act 1983. A patient who applied for a hearing to review his detention under s.3 of the Mental Health Act 1983, but who was subsequently made subject to supervised discharge prior to the hearing date, was required to make a fresh application for review in respect of his new status as a patient subject to supervised discharge.

Goshawk Dedicated (No 2) Ltd v The Bank of Scotland [2005] EWHC 2906 (Ch) (14 December 2005)

Wed, 14 Dec 2005 00:00:00 GMT

A consumer credit agreement entered into by the defendant bank with persons seeking to make a personal injury claim, where the credit was for the purpose of funding the claim and a legal expenses insurance policy, was held to comply with the requirements of the Consumer Credit Act 1974 concerning notices of cancellation rights.

Schmidt v Wong [2005] EWCA Civ 1506 (07 December 2005)

Tue, 13 Dec 2005 00:00:00 GMT

Legal Grounds raised on Appeal. Where the legal grounds raised on an appeal from the County Court differed from those raised in front of the County Court judge, no error of law occurred by way of the judge's failure to deal with those grounds.

Daar v Chief Constable of Merseyside Police [2005] EWCA Civ 1774 (13 December 2005)

Tue, 13 Dec 2005 00:00:00 GMT

Civil Claim for damages following failed criminal proceedings. Where a respondent had been acquitted of criminal charges and a local authority used the evidence from those failed proceedings to obtain an anti-social behaviour order against the respondent, it was not open to a chief constable to argue that civil proceedings brought by the respondent for damages stemming from the failed criminal proceedings were an abuse of process.

Corus UK Ltd v Erewash Borough Council [2005] EWHC 2821 (Admin) (09 December 2005)

Fri, 09 Dec 2005 00:00:00 GMT

CPR r.3.1 contained the appropriate procedural rules governing an application for an extension of time for an application under s.287 of the Town and Country Planning Act 1990.

Ashley Bell, George Wimpey UK Limited v East Renfrewshire Council, Carvill (Scotland) Limited [2006] CSOH 009

Fri, 09 Dec 2005 00:00:00 GMT

Application to the Court of Session under section

Central Liverpool Primary Care Trust v Charles S Bullen Stomacare Ltd. [2005] EWCA Civ 1514 (08 December 2005)

Thu, 08 Dec 2005 00:00:00 GMT

National Health Service (Pharmaceutical Services) Regs 1992. A PCT was prevented from recovering a disputed overpayment to a pharmaceutical supplier where it had not followed the prescribed procedures for doing so in accordance with reg.24 of the National Health Service (Pharmaceutical Services) Regulations.

Kirk & Ors v London Borough of Brent [2005] EWCA Civ 1701 (08 December 2005)

Thu, 08 Dec 2005 00:00:00 GMT

Strike Out & Summary Judgement. The judge was wrong to strike out a claim for damages for nuisance and to award summary judgment in favour of the defendant as he had addressed the question of whether the claim had a reasonable prospect of success on an incomplete basis and had not addressed the relevance of all the evidence.

Ryell v Health Professions Council, High Ct (QBD - Admin) 7/12/2005

Wed, 07 Dec 2005 00:00:00 GMT

Decision of Conduct & Competence Committee of the Health Professions Council. The Conduct and Competence Committee of the Health Professions Council had given insufficient reasons for its decision that a paramedic's fitness to practise was impaired by both misconduct and lack of competence; the decision was quashed and the case remitted to a freshly constituted committee for a further hearing.

First Gulf Bank v Wachovia Bank National Association [2005] EWHC 2827 (Comm) (07 December 2005)

Wed, 07 Dec 2005 00:00:00 GMT

CPR r.31.16: Pre-action Disclosure. In the circumstances it was not desirable to order pre-action disclosure under CPR r.31.16(3) in order to dispose fairly of the anticipated proceedings for alleged fraud in relation to letters of credit and, even if that jurisdictional threshold had been crossed, the court would not have ordered disclosure as a matter of discretion.

Kearsley v Klarfeld [2005] EWCA Civ 1510 (06 December 2005)

Tue, 06 Dec 2005 00:00:00 GMT

Allegations of Fraud or fabrication. The court said that the practice which had emerged in low velocity impact litigation of requiring the defence to include a substantive allegation of fraud or fabrication was not necessary. It is sufficient to fully set out any facts from which the defence will invite the judge to draw the inference that the claimant had not in fact suffered the injuries he asserted.

AWG Group Ltd & Anr v Morrison & Anr, High Ct (Ch D) 1/12/2005

Thu, 01 Dec 2005 00:00:00 GMT

Considerations for Judge in whether to recuse himself. Where the claimants had intended to call a witness who was in fact well known to the judge, but had accordingly decided not to call him but to call other witnesses instead, the judge considering whether to recuse himself had to decide whether he should do so because of the risk that new facts might emerge during the course of the trial that would place that witness's role in a new light and lead the judge to conclude that he would then have to recuse himself.

Royal Insurance (UK) Limited v. Amec Construction Scotland Limited and Others

Fri, 25 Nov 2005 00:00:00 GMT

Procedure Roll Debate:

Carlisle Cumbria United Independent Supporters’ Society Ltd v Courtnay & Ors, High Ct (Ch D) 25/11/2005

Fri, 25 Nov 2005 00:00:00 GMT

Continuation of Injunction: As the claimant had shown a good arguable case, it was held that the continuation of an injunction would better preserve the court's ability to do justice between the parties at trial than would a refusal to continue the injunction.

Hussain v Birmingham City Council & Ors [2005] EWCA Civ 1570 (25 November 2005)

Fri, 25 Nov 2005 00:00:00 GMT

Setting Aside Default Judgment: Default judgments were set aside where the injustice of preventing the adjudged party from presenting their defence outweighed the injustice to the claimant of allowing them to present their defence.

Hyams & Anr v Barclays Bank Plc, High Ct (Ch D) 24/11/2005

Thu, 24 Nov 2005 00:00:00 GMT

Permission to amend Defence where no prejudice: The defendant was permitted to amend its defence because there was no evidence that the amendment would prejudice the claimants.

Riyad Bank & Ors v Ahli United Bank (UK) Plc [2005] EWCA Civ 1419 (23 November 2005)

Wed, 23 Nov 2005 00:00:00 GMT

Applications to adduce fresh evidence: On an application to put in fresh evidence on appeal, the Court of Appeal should be particularly cautious where what was intended was to put in, in effect, further cross-examination of a witness, including an expert, where that expert or witness had been cross-examined at a trial.

Smith International Inc v Specialised Petroleum Services Group Ltd. [2005] EWCA Civ 1357 (17 November 2005)

Wed, 23 Nov 2005 00:00:00 GMT

Appeals under Patents Act: The procedure laid down for second appeals in s.55 of the Access to Justice Act 1999 and CPR r.52.13 did not apply to appeals under the Patents Act 1977 s.97(3).

London Borough of Ealing v Richardson [2005] EWCA Civ 1798 (22 November 2005)

Tue, 22 Nov 2005 00:00:00 GMT

Appeals & Re-hearing decisions: CPR r.52.11(1)(b): Re-hearing a decision under CPR r.52.11(1)(b) was the exception to the general rule that appeals should be limited to a review of a previous decision. For a re-hearing to be in the interests of justice, some injustice had to have occurred at the previous hearing.

O’Hara & Anr v McDougal, CA (Civ Div) 22/11/2005

Tue, 22 Nov 2005 00:00:00 GMT

Residential property not ‘place of business’ for service of proceedings: Residential property owned by a defendant and rented out to tenants could not be classed as a "place of business" for the purpose of service of proceedings under the CPR r.6.5 merely because the defendant, or his agent, collected rent personally from the property on a regular basis.

Ewos Limited v. Bruce Martin Mainland + Hugh Craigie Mainland

Tue, 22 Nov 2005 00:00:00 GMT

Expenses:

James McDonald v. Stirling Council

Fri, 18 Nov 2005 00:00:00 GMT

Appeal Against Decree of Dismissal:

Director of the Assets Recovery Agency v Creaven & Ors, High Ct (QBD: Admin) 8/11/2005; Times, November 16, 2005

Wed, 16 Nov 2005 00:00:00 GMT

Proceeds of Crime Act 2002: The principles applicable to an interim freezing order obtained in the context of a claim under Part 5 of the Proceeds of Crime Act 2002 were similar to those applicable to proprietary claims, but an allowance had to be made for the fact that any depletion of the property frozen by the order would not be recoverable from any property of a defendant that was free from any claim under the Act. In general the court should not permit a defendant who had available property that was not recoverable property to use the property that was claimed to be recoverable property to meet any of his expenditure pending trial of the claim brought under the Act.

Baird v Thurrock Borough Council [2005] EWCA Civ 1499 (07 November 2005)

Tue, 15 Nov 2005 00:00:00 GMT

Decision quashed where inadequate reasons for preferring Claimant’s evidence: A finding of liability in a personal injury claim was quashed where the trial judge had failed to give adequate reasons for concluding that the evidence of the claimant was truthful in circumstances where the evidence of two other witnesses was entirely inconsistent with it.

Angelika Ilona The Dowager Countess of Cawdor + St Cross Trustees Limited + Angelika Ilona The Dowager Countess of Cawdor v. The Right Honourable Colin Robert Vaughan Seventh Earl of Cawdor + Steve Rochford

Tue, 15 Nov 2005 00:00:00 GMT

Procedure Roll:

Lynch Hall & Hornby v Thakerar, High Ct (Ch D) 15/11/2005

Tue, 15 Nov 2005 00:00:00 GMT

Deputy Registrar’s power to make third party debt order: A deputy registrar had the jurisdiction to make a third party debt order where the order was made in relation to insolvency proceedings in the High Court.

Johnson v Perot Systems Europe Ltd & Anor [2005] EWHC 2450 (QB) (11 November 2005)

Fri, 11 Nov 2005 00:00:00 GMT

Proceedings dismissed where dishonesty and abuse of process: Proceedings brought by a former employee of a company were dismissed where he had behaved in a grossly dishonest manner and continuing the proceedings would amount to an abuse of process.

Isam v Meah, CA (Civ Div) 11/11/2005

Fri, 11 Nov 2005 00:00:00 GMT

Adjournment of proceedings: A trial date was adjourned to allow the appellant, who had limited understanding of English, to instruct solicitors.

In the Matter of a Company, High Ct (Ch D) 1/11/2005

Fri, 11 Nov 2005 00:00:00 GMT

Matters raised in mediation – deemed to waive without prejudice protection on those matters: Where issues that had been raised during the course of the mediation of one action had then been pleaded by both parties in satellite litigation, the parties had mutually waived without prejudice protection relating to those discrete issues.

Thomson & Anor v O'Connor & Anor [2005] EWCA Civ 1533 (07 November 2005)

Mon, 07 Nov 2005 00:00:00 GMT

Court of Appeal may interfere with exercise of discretion where judge fails to take all relevant matters into consideration: The Court of Appeal should generally be slow to interfere with the exercise of a judge's discretion. However, in the present case, the judge had failed to take into account the effect of his decision to refuse the appellant's application to adjourn his counterclaim.

Sisu Capital Fund Ltd. & Ors v Tucker & Ors [2005] EWHC 2321 (Ch) (28 October 2005)

Fri, 28 Oct 2005 00:00:00 GMT

Officeholders and employees of the Respondent company applied for recovery of their costs from the Respondent, subject to detailed assessment. The appellants had acted in response to claim to remove them from office. The costs claimed included time spent on work involving both special expertise and work which would not ordinarily be recovered under a costs order in a case where solicitor and counsel had been instructed. It was argued on behalf of the appellants that time spent on particular tasks could be quantified and that they should be indemnified accordingly. It was held that professionals could only recover costs for work undertaken in their professional capacity and that work ought to have required the involvement of an expert. In all other cases professionals acting in person could only recover costs on the same basis that they are payable to a litigant in person. Nossen's Letter Patent, Re (1969) 1 WLR 638 applied.

Kay v Mills [2005] EWCA Civ 1537 (26 October 2005)

Wed, 26 Oct 2005 00:00:00 GMT

Defence not previously raised: Once it was accepted that a defendant had not previously had to raise an argument which she later asserted in an amended defence and counterclaim, there was no abuse of process in sending a matter to court that had not been previously adjudicated upon and such a course did not offend the public interest.

Dickins v Solicitors Indemnity Fund Ltd, High Ct (Ch D) 26/10/2005

Wed, 26 Oct 2005 00:00:00 GMT

Application to extend time for validity of claim form: In refusing an application to set aside a without notice order to extend time for the validity of a claim, a master had asked himself the wrong question and failed adequately to consider the implications of the order on the defendant.

Masri v Consolidated Contractors Group SAL & Ors [2005] EWCA Civ 1436 (24 October 2005)

Mon, 24 Oct 2005 00:00:00 GMT

Conflict of Laws – Determining domicile and jurisdiction to hear case: The court held that the underlying purpose of Art. 6 of Council Regulation 44/2001was to avoid the risk of irreconcilable judgments in separate proceedings. Where a defendant in one set of proceedings was domiciled in England and other defendants in separate English proceedings were domiciled outside England, Art.6.1 applied as the claims in both proceedings were so closely connected it was expedient to hear the claims together to avoid the risk of irreconcilable judgments.

Huntingdon Life Sciences Group Plc & Anor v Stop Huntingdon Animal Cruelty & Ors [2005] EWHC 2233 (QB) (21 October 2005)

Fri, 21 Oct 2005 00:00:00 GMT

Injunctions – Enforcement: An appeal against a third party debt order made against an unincorporated animal rights association, which was effectively an appeal against an order continuing an injunction, could not be entertained by the judge as he had made the original order in respect of the injunction. Further, the master who had made the debt order was not under any obligation to consider the position of the association's hidden or anonymous members in the absence of any representations by them.

Daniels v The Commissioner of Police for the Metropolis [2005] EWCA Civ 1312 (20 October 2005)

Thu, 20 Oct 2005 00:00:00 GMT

CPR Part 36: Where a defendant rejected a claimant's Part 36 offer and was subsequently successful in court, there was no reason to depart from the general rule, under CPR r.44.3(2), that costs followed the event. Whilst the conduct of the parties could be taken into consideration, the refusal to accept a Part 36 offer was not included as conduct that could be taken into account under CPR r.44.3(5).

De Crittenden v Bayliss [2005] EWCA Civ 1425 (13 October 2005)

Thu, 13 Oct 2005 00:00:00 GMT

Case to be brought in a single action with election of remedies available: As a general rule of public policy, a claimant must bring forward his entire case in a single action and, where he had a choice of remedies, elect which remedy to pursue. A second action seeking a proprietary remedy in connection with a claim for which damages had been awarded and paid was an abuse of process.

Sayers & Ors v Smithkline Beecham Plc & Ors, High Ct, 11/10/2005

Tue, 11 Oct 2005 00:00:00 GMT

Case Management Orders in MMR / MR vaccine group litigation: The court made orders in relation to case management of the MMR/MR vaccine litigation. In particular, it made orders in relation to disclosure of medical records and in relation to those claimants who had discontinued their claims but who wished to resurrect them.

Zambia, Attorney General of Zambia for and On Behalf of v Meer Care & Desai (a firm) & Ors [2005] EWHC 2102 (Ch) (07 October 2005)

Fri, 07 Oct 2005 00:00:00 GMT

Application to Stay Proceedings: The court refused an application by Zambian defendants to stay English proceedings as against them and rejected their argument that fresh proceedings should be commenced in Zambia because that would be fairer for them in the conduct of their defence.

Sportswear Company Spa & Anor v Ghattaura (t/a "Gs3") [2005] EWHC 2087 (Ch) (03 October 2005)

Mon, 03 Oct 2005 00:00:00 GMT

Striking Out: Parts of defences to trade mark infringement actions in which the defendants relied on the EC Treaty (Nice) Art.81 were struck out because there was no sufficient nexus between the relief sought in the actions and the alleged breach of Art.81.

Tyndall v Battersea Dogs Home [2005] EWHC 90011 (Costs) (16 September 2005)

Fri, 16 Sep 2005 00:00:00 GMT

Staged premium - ATE: In the circumstances of the case, a staged premium in the sum of £1,890 paid in connection with after-the-event insurance obtained in relation to a fast track road traffic accident personal injury case was held to be reasonable, proportionate and recoverable.

Watson v General Medical Council [2005] EWHC 1896 (Admin) (26 August 2005)

Fri, 26 Aug 2005 00:00:00 GMT

Expert evidence – GMC proceedings: Fairness required that those who advise a tribunal on issues of fact, whether as experts or assessors, should do so openly, in the presence of the parties and in circumstances in which the parties have an opportunity to make submissions on that advice before the tribunal makes its decision.

Barrie Tonner + Maria Wynee or Tonner v. Reiach and Hall

Fri, 05 Aug 2005 00:00:00 GMT

Recall of Sist:

Szekeres v Alan Smeath & Co, High Ct (Ch D) 2/8/2005

Tue, 02 Aug 2005 00:00:00 GMT

Defective claim form – detailed assessment of costs: Although a claim form seeking the detailed assessment of bills of costs issued by a solicitor had contained defects, the claim form as served had been sufficient to commence the proceedings, since its effect had been to convey to the solicitor the message that the client had wanted the bills to be assessed within the statutory period. Accordingly, the costs judge had erred in refusing to make an order for detailed assessment of the bills on the basis of formal deficiencies.

Capewell v HM Customs & Excise & Anor [2005] EWCA Civ 964 (29 July 2005)

Fri, 29 Jul 2005 00:00:00 GMT

CPR r.69.7(2) – Remuneration of Receiver: It was held that CPR r.69.7(2) is confined to remuneration of a receiver, and the language of that rule cannot be expanded to include expenses of the receiver. In this case, the judge exercised his discretion under the rule and ordered Customs to pay remuneration of a receiver appointed under s.77(8) of the Criminal Justice Act 1988.

Bryen & Langley Ltd v Boston [2005] EWCA Civ 973 (29 July 2005)

Fri, 29 Jul 2005 00:00:00 GMT

Specifying agreement in writing not precluding prior informal agreement on same terms: The mere fact that two parties proposed in a letter that their agreement should be contained in a formal contract to be drawn and signed in the future did not preclude the conclusion that they had already informally contractually committed themselves on exactly the same terms.

Jones & Ors v Ceredigion County Council [2005] EWCA Civ 986 (28 July 2005)

Thu, 28 Jul 2005 00:00:00 GMT

’Leapfrog’ appeals procedure: The House of Lords’ refusal to entertain an appeal on a particular issue from the High Court under the ‘leapfrog’ procedure, pursuant to s.12 of the Administration of Justice Act 1969, did not preclude the appellant from appealing to the Court of Appeal on that particular issue, where the High Court judge had granted the appellant contingent permission to appeal to the Court of Appeal in relation to that issue. The 1969 Act should be construed so as to allow for the possibility of a partial grant of leave to appeal to the House of Lords.

Polestar Jowetts Ltd v Komori Ltd UK & Anor [2005] EWHC 1674 (QB) (26 July 2005)

Tue, 26 Jul 2005 00:00:00 GMT

Supply of Machinery (Safety) Regs 1992 & Health & Safety at Work etc Act 1974 – not purpose to confer civil right of action: It could not be inferred from the terms of the Supply of Machinery (Safety) Regulations 1992 and the scheme of the Health and Safety at Work etc Act 1974 that one of the purposes of the Regulations was to confer a right of civil action. If it had been intended to confer such a right, the Regulations would have clearly declared that they were being made under the 1974 Act.

Strachan v. The Gleaner Company Ltd & Anor (Jamaica) [2005] UKPC 33 (25 July 2005)

Mon, 25 Jul 2005 00:00:00 GMT

Judicature (Civil Procedure Code) Law (Jamacia): The Supreme Court of Jamaica was not deprived of jurisdiction to set aside a judgment in default of defence under s.258 of the Judicature (Civil Procedure Code) Law (Jamaica), even though damages had been subsequently assessed and a final judgment had been entered. Further, it was held that where an order to set aside a default judgment had been made without jurisdiction, a judge of a co-ordinate jurisdiction had no power to set it aside.

Re A (A Child) CA (Civ Div) 14/7/2005

Thu, 14 Jul 2005 00:00:00 GMT

Appeal of decision to adjourn appeal hearing: It was held that there was no basis on which an appeal could possibly succeed against a judge's order adjourning an appeal for a limited period to enable the appellant to be heard, but refusing an adjournment for a substantial period on medical grounds.

Stokes Pension Fund v Western Power Distribution (South West) Plc [2005] EWCA Civ 854 (11 July 2005)

Mon, 11 Jul 2005 00:00:00 GMT

Offer to settle money claim: An offer to settle a money claim should usually be treated as having the same effect as a payment into court, provided the offer is expressed in clear terms, stated to be open for acceptance for at least 21 days, where it is a genuine offer, where the Defendant is ‘good for the money’ when the offer is made and provided the offer is otherwise in accordance with the substance of a ‘Calderbank’ offer.

Banerji v Devi, High Ct (Ch D) 29/6/2005

Wed, 29 Jun 2005 00:00:00 GMT

Civil Evidence – Decision not to issue letter of request: A decision not to order the issue of a letter of request under CPR r.34.13 was fundamentally flawed because without the letter of request the claimant would be denied the opportunity of relying on crucial evidence and would be denied justice.

Adami, R (on the application of) v Ethical Standards Officer of the Standards Board for England [2005] EWHC 1577 (Admin) (28 June 2005)

Tue, 28 Jun 2005 00:00:00 GMT

Power to order adjournment, remission or quash decision and remit matter where inadequate reasons for tribunal’s decision: Where a tribunal failed to give adequate reasons for its decision to find that a councillor had breached local government codes of conduct, the appellate court had jurisdiction to either order an adjournment, followed by remission to the tribunal, or to quash the decision and then remit the matter.

Business Environment Group Ltd. v Wendy Fair (Wembly) Ltd. & Anr, High Ct (Ch D) 27/6/2005

Mon, 27 Jun 2005 00:00:00 GMT

Interim Injunction for Nuisance: The claimant company had a reasonably good prospect of establishing at trial that the defendants' use of a highway had been unreasonable and an interim injunction was granted.

Cressey v E Timm & Son Ltd. & Anor [2005] EWCA Civ 763 (24 June 2005)

Fri, 24 Jun 2005 00:00:00 GMT

Limitation Act 1980, Ss. 11 & 14: The court held that the claim form had been issued within three years of the claimant's date of knowledge for the purposes of Ss. 11 and 14 of the Limitation Act 1980, where the claimant had been misinformed at the date of his accident, without any fault on his part, about the identity of his employer and had only discovered it later.

Barros Mattos Junior v & Ors [2005] EWHC 1323 (Ch) (24 June 2005)

Fri, 24 Jun 2005 00:00:00 GMT

Amending Particulars of Claim: The Claimant was permitted to make amendments to the particulars of claim where the amendments did not add new causes of action, but were founded on the same legal and factual basis as the existing claim and the amendments raised matters which were arguable at trial.

Bodor v Heal, High Ct (Ch D) 211/6/2005

Tue, 21 Jun 2005 00:00:00 GMT

Interim relief: The claimant was held entitled to the continuation of interim relief until trial, subject to fortifying her cross-undertaking in damages.

Oem Plc. v Schneider & Ors, High Ct (Ch D) 26/5/2005

Thu, 26 May 2005 00:00:00 GMT

Amending Particulars of Claim: The claimant was permitted to amend its particulars of claim where the company's claim for recovery of money had and received, as formulated in the proposed amended particulars of claim, was sufficiently clear to enable the defendants to understand the nature of the case and plead to it.

Seal v South Wales Police [2005] EWCA Civ 586 (19 May 2005)

Thu, 19 May 2005 00:00:00 GMT

Mental Health Act 1983, s.139(2) – Requirement to obtain leave to commence proceedings: Failure to obtain the leave of the High Court under s. 139(2) of the Mental Health Act 1983 before commencing civil proceedings was held to have rendered those proceedings a nullity.

Roberts & Anor v Williams & Anor [2005] EWCA Civ 1086 (18 May 2005)

Wed, 18 May 2005 00:00:00 GMT

Admission of late evidence: Where the appellants had sought to adduce late evidence in the form of a witness statement in support of their defence to the claim, the court held that the evidence could be adduced, as it had not raised any new issues and the trial judge was entitled to have all the evidence available on the issue in dispute.

Narden Services Limited v. Inverness Retail and Business Park Limited + Jaymarke Developments Limited + Alan Baxter Wilson + Paul Doherty + James Shaw

Tue, 17 May 2005 00:00:00 GMT

Recovery of Documents/Procedure:

Double Isle Ventures Ltd. v Watford Petroleum Ltd, High Ct (Ch D) 28/04/2005

Thu, 28 Apr 2005 00:00:00 GMT

Application for Summary judgment / Strike out: The court dismissed the claimant's application for summary judgment or to strike out the defence because if the defendant's allegations were established at trial they would in fact provide a defence.

O'Brien v Chief Constable of South Wales Police [2005] UKHL 26 (28 April 2005)

Thu, 28 Apr 2005 00:00:00 GMT

Admissibility of Similar Fact Evidence: It was incorrect that similar fact evidence was only admissible in a civil case if it was likely to be reasonably conclusive of a primary issue in the proceedings or, alternatively, if it had enhanced relevance so as to have substantial probative value. The correct test was whether the evidence was potentially probative in the proceedings.

Tankaria & Ors v Morgan & Ors [2005] EWHC 3282 (Ch) (20 April 2005)

Wed, 20 Apr 2005 00:00:00 GMT

Application for Committal for Contempt of Court: The claimant’s application seeking committal of the first defendant for contempt of court for non-compliance with an order requiring delivery up of documents was unsuccessful in light of unchallenged evidence that the defendant had been ill and had inadequate resources to satisfy the order in time. The court held that the actions of a defendant subsequent to service of a notice of an application to commit could not be considered as part of the charge against her, although it might influence any penalty ordered.

Burgin v Sheffield City Council & Anor [2005] EWCA Civ 482 (14 April 2005)

Thu, 14 Apr 2005 00:00:00 GMT

Limitation Act 1980, s.11 & Exercise of Discretion: The judge had not erred in the exercise of his discretion in disapplying s.11 of the Limitation Act 1980 and allowing a time-barred personal injury claim against a local authority employer to proceed. He had correctly directed himself and emphasised the need to have regard to all the circumstances. It was held that there was no prejudice caused by the delay, either by virtue of the fact a potential witness had died or that the determination of apportionment between the local authority and a subsequent employer were affected.

Branch & Ors v Department for Constitutional Affairs [2005] EWHC 550 (QB) (08 April 2005)

Fri, 08 Apr 2005 00:00:00 GMT

Civil Procedure & Human Right Act 1998, s.6: The court held that the claimants' claims against the defendant department in respect of prior court decisions disclosed no reasonable grounds. In principle, there were other remedies available in respect of all the matters complained of. The claimants had access to justice by means of appeal procedures and, if those appeals failed, there was nothing in the European Convention on Human Rights 1950 that required or permitted a collateral attack on those decisions to be made in the form of proceedings for breach of s.6 of the Human Rights Act 1998.

Sayers & Ors v Smithkline Beecham Plc & Ors, High Ct, 8/4/2005

Fri, 08 Apr 2005 00:00:00 GMT

Case Management – Discontinuation of claims: The court made orders in relation to the case management of litigation relating to the MMR/MR vaccine and, in particular, as to the discontinuation of claims by certain claimants, also approving the terms of settlement offered to certain claimants.

Howells & Anor v Dominion Insurance Company Ltd [2005] EWHC 552 (QB) (07 April 2005)

Thu, 07 Apr 2005 00:00:00 GMT

CPR r.19.6 – Representative Proceedings & Enforcement: The CPR does not require permission to be given for proceedings to be begun or continued by or against any one or more persons representing persons with the same interest in the proceedings. In cases falling within CPR r.19.6, the rule itself provides the authority of the person who is represented. Thus, the decision that a judgment could not be enforced against individual club members who had been represented in the proceedings by two of their number, on the basis that they had not authorised the litigation, was wrong. A judgment against the representative claimants was in fact binding against all the represented members and enforceable against the individual members.

Martin v Kaisary & Anor [2005] EWHC 531 (QB) (05 April 2005)

Tue, 05 Apr 2005 00:00:00 GMT

Joining Defendant NHS Trust – Limitation Act 1980, Ss.11 & 14: The claimant’s claim against an NHS Trust was held not to be statute-barred where the application to join the Trust as a defendant had been made within three years of the claimant's date of knowledge for the purposes of Ss. 11 & 14 of the Limitation Act 1980.

Helen Macleand Mackintosh or Petrie and Others v. North Mile Co-Operative Limited

Thu, 24 Mar 2005 00:00:00 GMT

Expenses/Additional Fee:

Colin Scott and Others v. Justin Vieregge

Tue, 22 Mar 2005 00:00:00 GMT

Fatal Road Accident/Damages/Issues

Stuart Andrew McPhee v. W.J.M. Wilson Q.P.M. Chief Constable fo Central Scotland Police

Fri, 18 Mar 2005 00:00:00 GMT

Vicarious Liability:

NABB Brothers Ltd v Lloyds Bank International (Guernsey) Ltd [2005] EWHC 405 (Ch) (18 March 2005)

Fri, 18 Mar 2005 00:00:00 GMT

Service out of the Jurisdiction: An order permitting service out of jurisdiction was set aside. The claimant had failed to demonstrate that England was in fact the appropriate forum for determining a dispute relating to alleged fraudulent transfers from London bank accounts to a trust established under Guernsey law.

Hall & Ors v Save Newchurch Guinea Pigs (Campaign) & Ors [2005] EWHC 372 (QB) (17 March 2005)

Thu, 17 Mar 2005 00:00:00 GMT

Interim injunction under Supreme Court Act 1981, s.37(1): The court continued an interim injunction restraining animal rights activists from pursuing a course of conduct which was held to amount to harassment of the "protected persons" who ran or supplied a guinea pig breeding farm. However, the court declined to impose a 200km² exclusion zone around the farm, as it had not been satisfied that the creation of an exclusion zone was reasonably necessary for the protection of the protected persons' rights.

Mora Shipping Inc v AXA Corporate Solutions Assurance S.A. & Ors [2005] EWHC 315 (Comm) (16 March 2005)

Wed, 16 Mar 2005 00:00:00 GMT

The Claimant failed to establish that the Court has jurisdiction to hear the claim and the defendant insurers were therefore entitled to the relief sought, namely or issue and service of the claim form to be set aside. The UK had no connection with the factual issues in the case, although it was technically the place of performance of the contractual obligations.

Ifone Ltd v Davies & Anr, High Ct (Ch Div)

Tue, 15 Mar 2005 00:00:00 GMT

The Court will not order a speedy trial unless it is convinced that there are pressing reasons to justify doing so and the Court must take into account the needs of the other litigants involved. Save in exceptional circumstances, an order for specific disclosure would always come after the parties have made general disclosure. In fact, the instant application had been misconceived as it was not restricted to documents which related to the issues.

B v B, CA (Civ Div)

Thu, 10 Mar 2005 00:00:00 GMT

It was held not to be an abuse of process for a claimant to claim damages from a defendant in respect of sexual abuse which she had suffered where she had previously brought proceedings, seeking an injunction and damages, from the same defendant, where those previous proceedings had been effectively disposed of by the parties’ undertakings. On the facts, the claim for damages in the previous proceedings had been included for technical reasons and the present claim contained matters which had not been determined by the previous proceedings. The court’s overriding concern was to ensure that, one way or another, the claimant’s undetermined claims should be justly tried.

Boodoosingh v Ramnarace (Trinidad and Tobago) [2005] UKPC 9 (8 March 2005)

Tue, 08 Mar 2005 00:00:00 GMT

Fresh evidence which related to the question of whether the respondent had lied at trial and deliberately inflated his claim for loss of earnings was an insufficient basis for an appeal against the trial judge’s conclusive finding against the appellant for assault and battery. Even if the appellant had been able to demonstrate to the requisite standard of proof that the respondent had deliberately inflated his claim, it would not have been right to set aside the entire judgment. As far as liability was concerned, it was not a close run case. The appellant had shot the respondent in the face whilst trying to rob his wife’s bar.

Mandrake Holdings Ltd. & Anor v Countrywide Assured Group Plc [2005] EWHC 311 (Ch) (08 March 2005)

Tue, 08 Mar 2005 00:00:00 GMT

The duty of the court was to apply the law as it stood and permission was refused to amend the particulars of claim to add an additional head of damages which was not maintainable in established law.

Barnes v Handf Acceptances Ltd & Ors, CA (Civ Div)

Mon, 07 Mar 2005 00:00:00 GMT

It was an abuse of process for the claimant to bring a new claim against the defendant where that claim was expressed in the same way as previously unsuccessful claims brought in the county court and high court against the same defendant.

Steinberg v Pritchard Englefield (A Firm) & Anor [2005] EWCA Civ 288 (03 March 2005)

Thu, 03 Mar 2005 00:00:00 GMT

The defendant, who had not attended the original trial, failed to show on appeal that there had been any error of law or principle in the judge’s decision to grant summary judgment to the claimant on the grounds that, on the basis of the information before him, there was no defence to the claimant’s libel action.

Skanska Construction UK Ltd. v Egger (Barony) Ltd. [2005] EWHC 284 (TCC) (02 March 2005)

Wed, 02 Mar 2005 00:00:00 GMT

Determination of quantum issues – construction contract: On the arguments that were advanced before the trial judge, and upon the evidence that was before him at the trial of issues surrounding the quantum of a claim arising out of a construction contract, it was clear that the judge was fully entitled to make the awards in the terms that he did and in the sums that he did.

Forrester Ketley & Co v Brent [2005] EWCA Civ 270 (01 March 2005)

Tue, 01 Mar 2005 00:00:00 GMT

The judge was fully entitled to make an unless order, requiring the appellant to provide a clear and concise statement of his defence and counterclaim and pay outstanding costs orders within a reasonable time, particularly in light of the history of the case. The judge was also entitled to subsequently strike out the defence and counter-claim, the appellant having failed to comply with the unless order.

Colman v Scott & ors, High Court, 9/02/02

Sat, 09 Feb 2002 00:00:00 GMT

In the last issue of PI Brief Update, we reported the following about this case: “Claims against officers and employees of the General Medical Council were struck out as a clear abuse of process where the claimant had previously brought unsuccessful claims arising from the same or similar grievances against the GMC itself.” We have since had drawn to our attention an order of the Court of Appeal of 26/1/07 involving the Claimant's original case against the GMC. That order makes clear that the Claimant agreed to withdraw her Taylor v Lawrence application on the basis that the GMC did not claim its costs in that application and further the Court of Appeal (which had before them the pleadings in Colman v Scott & ors) stayed the enforcement of existing costs orders the GMC had against the Claimant for three months “in order to enable possible to negotiations to take place between the parties and their representatives with a view to disposing of all the litigation between the parties.”