Litigation Practice - 1900- 1929

All matters relating to civil litigation practice. See also County Court Rules, Costs. More recent cases will also be found under the Civil Procedure Rules area.

These cases are extracted from a very large database. The entries on that database are now being published individually to the main swarb.co.uk website in a much improved form. As cases are published here, the entry here will be replaced by a link to the same case in that improved form on swarb.co.uk. In addition the swarb.co.uk site includes very substantial numbers of cases after 2000. Please take the time to look.  

This page lists 110 cases, and was prepared on 19 May 2014. These case are being transferred one by one to the main swarb.co.uk site which presents them better, with links to full text where we have it, and much improved cross referencing.
Parker -v- Schuller; CA 1901
Duke of Bedford -v- Ellis; HL 1901
Re Collyer-Bristow & Co [1901] 2 KB 839
1901

Arbitration, Litigation Practice Casemap
1 Citers
The issue was whether a bill of the solicitors employed to advise the Umpire was taxable and, if so, in which Division of the High Court
Harper -v- Inspector of Rutherglen (1903) 6 F 23
1903

Lord Trayner
Scotland, Litigation Practice
1 Citers
Lord Trayner said: "Every judgment of an inferior Court is subject to review, unless such review is excluded expressly or by necessary implication".
Bankes -v- Jarvis [1903] 1 KB 549
1903

Channell J
Equity, Litigation Practice Casemap
1 Citers
The plaintiff was his son's agent. The son purchased a veterinary surgeon's practice from the defendant, agreeing to pay the rent and indemnify the defendant against liability under a lease of premises from which the practice was carried on. The son then decided to leave the country, and gave the plaintiff authority to sell the practice. The plaintiff sold it on his son's behalf back to the defendant, in a second transaction. The defendant owed £50 under that second transaction, but the son owed the defendant £21 for rent and a further £30 for failure to perform covenants in the lease, under the first transaction. That was a quantified counterclaim for unliquidated damages. When the plaintiff sued the defendant for the £50, the defendant claimed to be able to set off the £5. Held. A claim for unliquidated damages may be set off against a claim for debt.
Channell J said: "The Judicature Act and more especially the Rules distinctly put an unliquidated claim on the same footing as a liquidated claim for the purpose of set-off and consequently the defendant's claim against the plaintiff's son, which, if liquidated, could have been pleaded before the Judicature Act as a set-off to the plaintiff's claim can now, although unliquidated be relied on as a defence to the extent of the claim."
Stevens -v- General Steam Navigation Co Ltd [1903] 1 KB 890
1903
CA
Stirling LJ
Litigation Practice Casemap

A re-enacting provision modified the original provision so as to include the words “all machinery or plant used in the process of loading or unloading of any ship in any dock, harbour or canal.” The provision introduced the word “harbour”. This was a very substantial change for those affected by it. Held: The proper approach to the construction of statutory provisions may change if Parliament directs that the provisions are to be construed in terms of a later, modified, enactment.
Stirling LJ stated: “The original and re-enacted clauses need not be identical, and the sole question is whether when the modification takes the form of extending and not narrowing the former provisions it amounts to a modification within the meaning of the Interpretation Act.”
Collins MR asked whether the introduction of the word “harbour” was “so radical an alteration of the previously existing section as not to fall within the term ‘modification’?” He concluded that the modified provision was re-enacted - “with the intention of altering the existing state of things by the modification of the Factory Act 1895. This intention of the Interpretation Act 1889, enabled the Legislature to carry out in the way in which it has been carried out, for in my opinion there is no reason to limit the word “modification”, which is equally applicable whether the effect of the alteration is to narrow or to enlarge the provisions of the former Act.”
Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd -v- Pontypridd Waterworks Co; HL 1903
Oliver -v- Nautilus Steam Shipping Co Ltd [1903] 2 KB 639
1903

Litigation Practice

Kent and Others (Liquidators of La Banque Ville-Marie) -v- La Communautu Des Soeurs De Charitu De La Providence and Others; PC 20-Mar-1903
E M Bowden's Patents Syndicate Ltd -v- Herbert Smith & Co; 1904
Sneade -v- Wotherton Barytes & Lead Mining Co [1904] 1 KB 295
1904

Lord Collins MR
Litigation Practice
1 Citers
An amendment of a writ or a pleading relates back to the original date of the document amended.
In re Nisbet and Potts' Contract; 1905
Meadows -v- Grand Junction Waterworks Company [1905] 21 TLR 538
1905

Litigation Practice Casemap

William Brandt's Sons & Co -v- Dunlop Rubber Co; HL 1905
Kine -v- Jolly [1905] 1 Ch 480
1905
CA
Cozens-Hardy LJ
Litigation Practice


The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: "I think it is impossible to doubt that the tendency of the speeches in the House of Lords in Colls v. Home Electric Stores Ltd, is to go a little further than was done in Shelfer v. City of London Electric Lighting Co., and to indicate that as a general rule the Court ought to be less free in granting mandatory injunctions than it was in years gone by."
Watson -v- M'Ewan; HL 1905
Horner -v- Franklin [1905] 1 KB 479
1905

Litigation Practice

Stretton -v- Stubbs Ltd Times, 28 February 1905
28 Feb 1905
CA
Sir Richard Henn Collins MR, Matthew LJ
Defamation, Litigation Practice
1 Citers
(1905) The plaintiff, an artist had a judgment against him by a picture frame maker. It had been entered by consent under an agreement with the plaintiff's solicitor that no publicity should be given to the result of the action. Nevertheless, the defendants published the judgment in Stubbs' Weekly Gazette and the plaintiff said that their canvaser had gone round to tradesmen pointing out the importance of subscribing to the Gazette, directing their attention to the plaintiff's name and saying that he could not be worthy of credit. The jury returned a verdict for the plaintiff of £25. As part of his case the plaintiff had relied upon the contract between himself and the solicitor for the plaintiff in the City of London Court action that the judgment should not be made public. This contract was contained in two without prejudice letters. The offer was contained in a letter from the plaintiff and the acceptance in a letter from the solicitor. The judge permitted the second letter to be put in evidence and read but refused to admit the first letter which had contained admissions by the plaintiff that he was absolutely insolvent. Held: The first letter was to be read. Matthew LJ said that in his opinion "a letter written with regard to an action and marked 'without prejudice' was only privileged for the purpose of that particular action."
Watson -v- McEwen; AB -v- CD; HL 28-Jul-1905
Martin -v- Nadel [1906] 2 KB 26
1906
CA
Stirling LJ, Vaughan Williams LJ
Banking, Jurisdiction, Litigation Practice


A garnishee order was sought in England against the London branch of a German bank to attach a balance owed to the judgment debtor by the Berlin branch of the bank. Held: A garnishee order is of the nature of an execution, and is governed by the lex fori; and by international law an execution which has been carried into effect in a foreign country under foreign law, and has taken away part of a man's property, is not recognised as binding. Under the rules of international law the Bank could not set up, in an action in Berlin, the execution levied in this country in respect to this debt. If we consider the converse case it is clear that we should take that view of a similar transaction occurring abroad. An absolute order was refused because the garnishee bank was at risk of having to pay twice and the making of an order in such circumstances was "inequitable" and "contrary to natural justice". "On the facts of this case the debt of the bank to Nadel would be properly recoverable in Germany. That being so, it must be taken that the order of this Court would not protect the bank from being called on to pay the debt a second time."
Coles -v- Ravenshear; CA 1907
Swanson -v- Manson [1907] ScotCS CSIH_6; 1907 SC 42
16 Jan 1907
SCS
Lord Ardwall
Scotland, Litigation Practice Casemap
1 Citers
Lord Ardwall said that: "No person is entitled to subject another to the trouble and expense of a litigation unless he has some real interest to enforce or protect."
Link[s] omitted
British Cash and Parcel Conveyors Ltd -v- Lamson Store Service Co Ltd; 1908
Allan & Sons Bill Posting Limited -v- Edinburgh Magistrates 1909 SC 70
1909

Lord Low
Scotland, Litigation Practice
1 Citers
In asking whether an appeal was available, the presence or absence of a record of the decision at first instance is an indicator, since an appeal is more difficult without.
Leigh -v- Gladstone (1909) 26 TLR 139
1909

Litigation Practice, Prisons
Discovery was sought of medical reports prepared by the prison medical officer for the governor. Held: Such reports were not privileged from production.
Armour -v- Glasgow Royal Infirmary 1909 SC 916
1909

Scotland, Litigation Practice Casemap

Lord Ordinary, Lord Skerrington said that in the ordinary case the action could be brought only at the instance of the trustees. But the testamentary trustees had been called as defenders, and concurred with the Infirmary in maintaining that the money was properly paid. Consequently in those circumstances "the pursuers have a good and sufficient title to maintain this action to the effect of demanding that the money shall be repaid to the trustees."
Glasgow Navigation Co -v- Iron Ore Co; HL 1910
Galbraith -v- Grimshaw and Baxter; CA 1910
Rex -v- Earl of Crewe, Ex parte Sekgome; CA 1910
Brown -v- Dean [1910] AC 373
1910

Loreburn LC
Litigation Practice

In re Aktiebolaget Robertsfors and La Société Anonymes des Papeteries de l'Aa [1910] 2 KB 727
1910
CA
Litigation Practice, Jurisdiction
1 Citers
The court was asked to construe O.XI r.8A made in 1909 to extend the power to serve out of the jurisdiction to summonses, orders or notices. Held. The power was only exercisable in situations where service out of a writ was permissible under O.XI r.8 and so did not cover a summons to set aside an arbitration award.
Dyson -v- Attorney General [1911] 1 KB 410; [1912] 1 Ch 158
1911
CA
Fletcher Moulton LJ, Cozens Hardy MR
Litigation Practice Casemap
1 Citers
Fletcher Moulton LJ considered the rule allowing a case to be struck out as an abuse of process: "Now it is unquestionable that, both under the inherent power of the Court and also under a specific rule to that effect made under the Judicature Act, the Court has a right to stop an action at this stage if it is wantonly brought without the shadow of an excuse, so that to permit the action to go through its ordinary stages up to trial would be to allow the defendant to be vexed under the form of legal process when there could not at any stage be any doubt that the action was baseless. . . To my mind it is evident that our judicial system would never permit a plaintiff to be `driven from the judgment seat' in this way without any Court having considered his right to be heard, excepting in cases where the cause of action was obviously and almost incontestably bad."
Cozens Hardy MR said that a declaration might be granted where it would "guide (the parties') action in the future."
Jones -v- Pacaya Rubber and Produce Co Ltd [1911] 1 KB 455 CA
1911
CA
Buckley LJ
Litigation Practice

The court considered the standard of proof when considering an application for an interim injunction. There was a need to show that there is 'certainly a case to be tried.'
Pena Copper Mines Ltd -v- Rio Tinto Co Ltd (1911) 105 LT 846
1911

Litigation Practice Casemap
1 Citers
The court exercised its jurisdiction to make an order restraining the commencement of proceedings abroad.
Maass -v- Gas Light and Coke Co [1911] 2 KB 543
1911
CA
Litigation Practice Casemap
1 Citers
Interrogatories to the defendant asking what grounds he had for prosecuting will, as a rule, be refused.
Hirachand Punamchand -v- Temple; CA 1911
Lord Advocate -v- Walker Trustees; HL 1912
Russell -v- Stubbs Ltd; CA 1912
Standing -v- Eastwood and Co [1912] 5 BWCC 268
1912

Fletcher Moulton LJ
Jurisdiction, Litigation Practice Casemap
1 Citers
A court's jurisdiction cannot be created by the contract or consent of the parties.
In Re Hearn, De Bertodano -v- Hearn (No.1); ChD 1913
Metropolitan Water Board -v- Johnson and Co [1913] 3 KB 900
1913

Channel J
Litigation Practice
1 Citers
Shackleton -v- Swift [1913] 2 KB 302
1913
CA
Litigation Practice
1 Citers
The Act gave special protection to officers and others acting under its powers in cases where, although they might have misconstrued the Act, and although they might have done things which they had no jurisdiction to do, they had acted in good faith and in a reasonable manner. The burden on a defendant before obtaining a summary restraint of a plaintiff's case as an abuse of process is necessarily a severe one.
Lunacy Act, 1890 330
Russell -v- Stubbs Limited; HL 1913
Barham -v- Lord Huntingfield; CA 1913
In Re Hearn; CA 02-Jan-1913
White -v- Barnes [1914] WN 74
1914

Litigation Practice Casemap
1 Cites
Adam -v- Fisher [1914] 39 TLR 288
1914

Buckley J
Litigation Practice, Defamation
1 Cites
1 Citers
There were two possible reasons why a newspaper might be treated differently from another organisation in defamation proceedings, in that discovery of the source of information will not be ordered. First, it might be expected that it was the purpose of such an interrogatory to sue the informant, which would be improper, and second that it would be against the public interest.
Lambert -v- Home [1914] 3 KB 86
1914
CA
Cozens-Hardy MR
Litigation Practice
A transcript of a case was "publici juris."
Von Hellfield -v- E Rechnitzer and Mayer Frères & Co [1914] 1 Ch 748
1914
CA
Buckley Phillimore LJJ
Company, Litigation Practice Casemap

A French partnership did not carry on business within the UK. It was sued in its firm name in respect of a contract signed in the name of the firm. The evidence of French law did not establish that the French partnership was a totally separate legal entity from the individual partners in it, although it was a legal person for the purpose of service of legal proceedings upon it. Held: The Court upheld the judge's order setting aside the writ which named the firm as the defendant on the ground that Ord 48A did not apply and that the writ was not properly issued naming the firm as a defendant.
Phillimore LJ: "According to our modern practice there are three classes who can sue, or appear to writs, - persons, corporations, and firms. The introduction of partnerships is comparatively modern and since the Judicature Act, but the fact is merely for convenience of nomenclature and of service; the results are in the end the same as if the individuals composing them sued or were sued by their individual names. It is clear from the case of Dobson v Festi, Rasini & Co (1) that some similar procedure now obtains in Italy, and it appears from this case that some similar procedure now exists in France. That may well be, but our law, being very careful how it interferes with the rights of foreigners, has not allowed service to be effected upon individuals who are engaged in a foreign partnership by serving the partnership as in England. The foreign partners cannot be sued by their firm name, and there is nothing to enable service upon some manager carrying on business for the partners or service on one as service on the rest."
and "They are not enough for this purpose; they are not enough to shew - which is necessary for this purpose - that a société en nom collectif is like a corporation in this respect, not merely that it has a separate persona, but that it has a separate ownership of property and separate liability from the ownership or liability by or of the persons composing the aggregation. I can conceive certain cases of bodies of which one might be doubtful whether they were corporations or not; and upon a writ properly framed alleging that the body sued was a separate entity, and making it clear that no relief was sought against any individual opposing that entity any more than it would be against shareholders in a corporation, I can conceive it being possible to suggest that such a body might be treated as a corporation and might be sued and served as a corporation. But this is on the face of it apparently a partnership, and the affidavit of service of the writ plainly and boldly describes it as a partnership. The rules of English law provide that our ancient process in respect of English people should remain in respect of foreigners."
Princess Thurn and Taxis -v- Moffitt (1914) 31 TLR 2
1914

Litigation Practice Casemap
1 Citers
The subject of an enemy state registered in the United Kingdom under the Aliens Registration Act 1914 as an alien was entitled to sue in England.
In re Woking Urban District Council (Basingstoke Canal) Act 1911 [1914] 1 Ch 300
1914
CA
Phillimore LJ
Litigation Practice
1 Citers
The court discussed why marginal notes are not to be used as an aid for stautory interpretation: "I am aware of the general rule of law as to marginal notes, at any rate in public general Acts of Parliament; but that rule is founded, as will be seen on reference to the cases, upon the principle that those notes are inserted not by Parliament nor under the authority of Parliament, but by irresponsible persons."
Guarantee Trust Co of New York -v- Hannay and Co; 1915
Reid -v- Cupper [1915] 2 KB 147
1915

Buckley J, Pickford LJ
Litigation Practice Casemap

A judge was entitled to make an order setting off one party's costs in an action against the other party's costs in a different action by reliance not on the language of Order LXV r 14, but on the old discretionary practice of the courts. The court described the courts 'equitable jurisdiction to do what was fair' when they were considering whether to allow one judgment to be set off against another.
Porter -v- Freudenberg [1915] 1 KB 857
1915

Litigation Practice Casemap
1 Citers
A British citizen or neutral who is voluntarily resident in the enemy country is to be treated as an alien enemy when the question is asked as to his entitlement to bring proceedings in England.
In Re Boaler [1915] KB 21
1915
CA
Scrutton J
Litigation Practice, Constitutional Casemap
1 Citers
The court was asked whether the 1896 Act which permitted a court to make an order that a person could not institute proceedings without the leave of the court, applied to the institution of criminal proceedings. Held: It did not. Scrutton J said: "In the case of this statute the legislature clearly intends to interfere with some rights of persons, and uses words capable of extension to rights of litigation in criminal matters, but in my opinion more suitable to the subject-matter of rights of litigation in civil matters only. In my view, looking at the enacting part of the statute only, the presumption against the interference with the vital rights and liberties of the subject entitles, even compels, me to limit the words to the meaning which effects the least interference with those rights." but "The object of the court is, from the words used, construed in reference to the subject-matter in which they are used, to get at the intention of the legislature and give effect to it. When the legislature has used general words capable of a larger and a narrower meaning, those words may be restricted by innumerable presumptions all designed to give effect to the reasonable intent of the legislature."
"One of the valuable rights of every subject of the King is to appeal to the King in his Courts if he alleges that a civil wrong has been done to him, or if he alleges that a wrong punishable criminally has been done to him, or has been committed by another subject of the King. This right is sometimes abused and it is, of course, quite competent to Parliament to deprive any subject of the King of it either absolutely or in part. But the language of any such statute should be jealously watched by the Courts, and should not be extended beyond its least onerous meaning unless clear words are used to justify such extension."
Vexatious Actions Act 1896
Ex parte Stott; 1916
Webster -v- Bakewell Rural District Council (No 2); 1916
Norman -v- Mathews (1916) 85 LJ KB 857
1916

Lush J
Litigation Practice
1 Citers
The court set out the criteria for assessing whether an action was frivolous in law: "It must appear that his alleged cause of action is one which on the face of it is clearly one which no reasonable person could properly treat as bona fide, and contend that he had a grievance which he was entitled to bring before the Court."
Bradford Corporation -v- Myers; HL 1916
Asiatic Petroleum Co Ltd -v- Anglo-Persian Oil Co Ltd; CA 1916
Blair -v- Haycock Cattle Co. (1917) 34 TLR 39
1917

Lord Finlay LC
Litigation Practice Casemap

Arkadelphia Milling -v- St Louis Southwestern Railway (1918) 249 US 134
1918

International, Litigation Practice Casemap
1 Citers
(United States Supreme Court) A wrongful injunction had restrained a State Railroad Commission from enforcing its shipping tariffs. Two frequent shippers were also enjoined as representative defendants. The injunction was directed against "the Commissioners . . . the individual shippers named as defendants, and all other patrons of the road in the shipment of freight." It was dissolved on appeal. So the injunction had compelled the "patrons of the road" to overpay. Held: The question was whether there could be a restitutionary claim on their behalf as a class. There could be because they were the class that were injuncted.
Hip Foong Hong -v- H. Neotia & Co [1918] AC 888
1918
PC
Lord Buckmaster, Viscount Dunedin, Blanesburgh, Warrington of Clyffe, and Tomlin LL
Litigation Practice Casemap
1 Citers
An appellate Court has inherent power to set aside a judgment obtained through fraud. Lord Buckmaster described how an appellate court should deal with an allegation that an earlier judgment had been obtained by fraud: "Where a new trial is sought upon the ground of fraud, procedure by motion and affidavit is not the most satisfactory and convenient method of determining the dispute. The fraud must be both alleged and proved; and the better course in such a case is to take independent proceedings to set aside the judgment upon the ground of fraud, when the whole issue can be properly defined, fought out, and determined, the motion for a new trial is also an available weapon and in some cases may be more convenient." and
"It is a charge of fraud that is the sole reason supporting the judgment now under appeal. Viewed simply as a matter of procedure, the course taken was irregular. It has long been a settled practice of the court that the proper method of impeaching a completed judgment on the ground of fraud is by action in which, as in any other action based on fraud, the particulars of the fraud must be exactly given and the allegation established by the strict proof such a charge requires." and
"A judgment that is tainted and affected by fraudulent conduct is tainted throughout, and the whole must fail."
Aberconway v Whetnall (1918) 87 LJ Ch 524
1918

Eve J
Litigation Practice

1 Citers
Lord Aberconway and others sought to recover for themselves and all other subscribers to a fund for the benefit of the defendant the amounts they had collectively subscribed on the grounds that they were induced to do so by misrepresentation. Held. Insofar as the claim was made in a representative capacity it was misconceived because it could not be said that: "the donors to the fund have a common interest and a common grievance when the very existence of the grievance depends on facts which may differ in each individual case."
Jones -v- S E and Chatham Railway (1918) 87 LJ KB 775
1918

Litigation Practice
1 Citers
It is a general rule of evidence that statements may be used against a witness as admissions but that counsel is not entitled to bring evidence of statements on other occasions by the witness to confirm the testimony.
Schetky -v- Cochrane and the Union Funding Co [1918] 1 WWR 821
1918

Commonwealth, Litigation Practice Casemap


(Court of Appeal in British Columbia) The court ordered oral discovery to be given to a defendant of negotiations between the plaintiff and another defendant in the action but held that on the trial there would be no higher right to use the statements or admissions than that which a party to the negotiations would have who sought to introduce them in evidence.
Clarke -v- Edinburgh and District Tramways Co; HL 1919
Bourne -v- Keane; HL 1919
In re Clay; Clay & Booth; CA 1919
Raja Setrucherla Ramabhadraraju -v- Maharajah of Jeypore All India Reports 1919 PC 150
1919
PC
Litigation Practice Casemap
1 Citers
Rodriguez -v- Speyer Brothers [1919] AC 59
1919

Viscount Haldane
Litigation Practice Casemap
1 Citers
The courts will not give assistance to proceedings which, if successful would lead to the enrichment of an alien enemy, and therefore would tend to provide his country with the sinews of war. An enemy alien has no standing to commence proceedings here. However, because the rule is one of public policy, it does not apply if the case discloses no mischief against which the rule was intended to guard.
Re Boks & Co v Peters, Rushton & Co Ltd [1919] 1 KB 491
1919
CA
Scrutton LJ
Arbitration, Litigation Practice
1 Citers
The alternative procedure for seeking enforcement of an arbitrator's award is by an action upon the award. The procedure is to be used only in "reasonably clear cases".
O'Rourke -v- Darbishire; HL 1920
French -v- Champkin; 1920
Hohler -v- Aston [1920] 2 Ch 420
1920

Sargant J
Wills and probate, Litigation Practice, Contract

A Mrs. Aston agreed with her nephew Mr. Hohler to make provision for her niece and her husband, Mr. and Mrs. Rollo. Mrs. Aston died before doing so. Mr. Hohler and Mr. And Mrs. Rollo sued the executors of Mrs. Aston for specific performance Held: The action succeeded. Sargant J: "the third parties, of course, cannot themselves enforce a contract made for their benefit but the person with whom the contract is made is entitled to enforce the contract." Mr. Hohler took no benefit under the contract but was allowed to recover.
The Ansonia; 1920
Barton -v- Fincham; CA 1921
In re Mahmoud and Ispahami [1921] 2 KB 716
1921

Litigation Practice Casemap

A failure to plead an allegation in a later appeal where the facts at issue had been covered in the trial need not be fatal to that ground being added.
Atlantic Shipping & Trading Co -v- Louis Dreyfus & Co; HL 1921
Joachimson -v- Swiss Bank Corporation [1921] 3 KB 110; [1921] 37 TLR 534
1921
CA
Atkin LJ
Litigation Practice, Banking
1 Citers
The service of the order nisi binds the debt in the hands of the garnishee - that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the customer demands payment by the bank. The court set out the legal characteristics of a bank account.
Cape Brandy Syndicate -v- Inland Revenue Commissioners [1921] 1 KB 64
1921
CA
Rowlatt J, Lord Sterndale MR, Lord Atkinson
Income Tax, Litigation Practice Casemap

Rowlatt J said: "In a taxing Act one has to look merely at what is clearly said. There is no room for any intendment. There is no equity about a tax. There is no presumption as to a tax. Nothing is to be read in, nothing is to be implied" and "subsequent legislation, if it proceeded on an erroneous construction of previous legislation, cannot alter the previous legislation".
Lord Sterndale MR said: "I quite agree that subsequent legislation, if it proceed upon an erroneous construction of previous legislation, cannot alter that previous legislation; but if there be any ambiguity in the earlier legislation, then the subsequent legislation may fix the proper interpretation which is to be put upon the earlier."
Lord Atkinson: "Where the interpretation of a statute is obscure or ambiguous, or readily capable of more than one interpretation, light may be thrown on the true view to be taken of it by the aim and provisions of a subsequent statute."
Russian Commercial & Industrial Bank -v- British Bank of Foreign Trade [1921] 2 AC 438
1921
HL
Lord Dunedin
Litigation Practice, Scotland Casemap
1 Citers
The court considered how the court should exercise any jurisdiction to make declarations. Held: The House (Lord Dunedin) referred, with approval, to the approach taken by the Scottish Courts, identifying three propositions, namely that the question must be real and not a theoretical question; the person raising it must have a real interest to raise it; and he must be able to secure a proper contradictor ie someone presently existing who has a true interest to oppose the declaration sought.
Lord Dunedin spoke of the Scottish action of declarator: "The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought."
in re Prior [1921] 3KB 333
1921
CA
Litigation Practice

The court considered its equitable powers of funds it held as security.
Ellis -v- Deheer; 1922
Viscountess Rhondda's Claim [1922] 2 AC 339
1922
HL
Viscount Haldane, Lord Birkenhead LC
Litigation Practice, Constitutional, Discrimination Casemap
1 Cites

(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act. Held: It is incorrect for a court to draw conclusions from such elements of the Parliamentary history of the legislation as the proposal and rejection of amendments. It is the sole right of the Committee to decide who was entitled to receive the Writ of Summons and Lord Lyndhurst said that if a person is entitled to a writ, but the Crown does not issue one, then his remedy is to petition the House.
Lord Birkenhead LC said: "The rule that the words of an instrument shall be taken most strictly against the party employing them - verba chartarum fortius accipiuntur contra proferentem - does not apply to the Crown such a grant is construed most strictly against the grantee and most beneficially for the Crown, so that nothing will pass to the grantee but by clear and express words." It was the duty of the Committee for Privileges to consider whether she was entitled to receive a Writ of Summons: "The writ is not to be issued capriciously or withheld capriciously at the pleasure of the Sovereign or of this House. It is to be issued, or withheld, according to the law relating to the matter, and if, under that law, it appears that there is a debt of justice to the petitioner in that matter, the writ will issue and, if not, it cannot issue."
Lord Lyndhurst said: "If a Writ of Summons is improperly withheld, your Lordships can insist upon its being issued. You may address the Crown for that purpose if you think proper. If that address to the Crown is unavailing, there is a remedy that in a remarkable case has been resorted to and which was effectual to attain its object. The Peers in Parliament, in that case, refused to proceed to business until the Writ of Summons was issued and until the House was properly constituted, and the historian who records this fact says that the means adopted were so effectual that the King was induced to issue the Writ of Summons and that the abuse of which they complained never occurred again. That is a remedy when the Writ of Summons is withheld. On the other hand, when a party has obtruded himself upon the House in which he has no right to sit, the remedy is equally plain. It is your duty to direct your Officers to refuse to administer the oaths, or allow the party to take his seat."
Sex Disqualification (Removal) Act 1919
Secretary of State for Home Affairs -v- O'Brien; HL 1923
George Hudson Ltd -v- Australian Timber Workers' Union; 1923
Pinnock Bros -v- Lewis and Peat Ltd; 1923
Swiss Bank Corporation -v- Boehmische Industrial Bank; CA 1923
Regina -v- Secretary of State for Home Affairs, Ex parte O'Brien; CA 1923
Mersey Docks and Harbour Board -v- Proctor; HL 1923
Secretary of State for Home Affairs -v- O'Brien; 1923
Everett -v- Islington Guardians; 1923
Performing Right Society Limited -v- London Theatre of Varieties Limited [1924] AC 1
1924
HL
Viscount Finlay, Viscount Cave LC, Lord Sumner
Intellectual Property, Contract, Litigation Practice Casemap
1 Citers
The parties, the plaintiff who was the equitable assignee of performing rights and the infringing defendant, joined specific issue on the absence of the legal owner of the rights. Held: His absence was critical. Viscount Finlay said: "Except under very special circumstances the ordinary rule should be observed, that the legal owner should be a party to the proceedings…But whatever may be the balance of convenience, the established rules of practice should be adhered to, even in cases, of which I think the present is one, when their observance in all probability will serve no useful purpose. The parties have joined battle on the applicability to the present case of this particular rule of practice, and we must decide according to law, however much we may regret that success in the action should depend on mere technicality which has no relation to the merits of the case."
Viscount Cave LC said: "That an equitable owner may commence proceedings alone, and may obtain interim protection in the form of an interlocutory injunction is not in doubt; and is, I think, the rule of the Supreme Court, that, in general, when a plaintiff has only an equitable right in the thing demanded, the person having the legal right to demand it must in due course be made, a party to the action: Daniells' Chancery Practice (7th ed), Vol 1, p 172. If this were not so, a defendant after defeating the claim the equitable claimant might have to resist like proceedings by the legal owner or by persons claiming under him as assignees for value without notice of any prior equity, and proceedings might be indefinitely and oppressively multiplied. No doubt the rule does not apply to a mortgagor at least since the passing of section 25(6) of the Judicature Act 1873; and there may be special reasons, were, it will not be enforced as in William Brandt's Sons & Co v Dunlop Rubber Co [1905] AC 454, where the defendant disclaimed any wish to have the legal owners made parties."
Knight -v- Knight [1925] Ch 835
1925

Litigation Practice
1 Citers
Lord Strathcona Steamship Co Ltd -v- Dominion Coal Co Ltd [1926] AC 108
1926
HL
Litigation Practice Casemap
1 Citers
Owners of Steamship Hontestroom -v- Owners of Steamship Sagaporack; HL 1927
Richardson -v- Richardson [1927] P 228,
1927
KBD
Hill J
Jurisdiction, Litigation Practice Casemap
1 Citers
A bank owed debts to a judgment debtor customer on accounts held both in London and in Africa. It was accepted that the former were subject to a garnishee order. The dispute concerned the latter. Held: The bank is no doubt indebted to the judgment debtor and the bank is within the jurisdiction. The Order deals with the case where 'any other person is indebted to the judgment debtor and is within the jurisdiction". But both in principle and upon authority, that means 'is indebted within the jurisdiction and is within the jurisdiction'. The debt must be properly recoverable within the jurisdiction. In principle, attachment of debts is a form of execution, and the general power of execution extends only to property within the jurisdiction of the Court which orders it. A debt is not [properly] within the jurisdiction if it cannot be recovered here. The court was accordingly of opinion that moneys held by the bank to the credit of the judgment debtor at the African branches cannot be made the subject of a garnishee order, for they are not a debt recoverable within the jurisdiction." The court went on to hold that, if he was wrong in that conclusion, he would exercise his discretion against the making of an order.
Scott Paper Co -v- Drayton Paper Works Ltd [1927] 44 RPC 151
1927

Clauson J
Evidence, Litigation Practice Casemap
1 Citers
Parties to litigation should 'be encouraged fully and frankly to put their cards on the table.'
Nicholson -v- Southern Star Fire Insurance Co Ltd (1927) 28 SR (NSW) 124
1927

Commonwealth, Litigation Practice
(New South Wales)
Re The Hontestroom; HL 1927
Friern Barnet UDC -v- Adams [1927] 2 Ch 25
1927
CA
Lord Hanworth MR
Litigation Practice Casemap

The plaintiff sought the cost of certain streetworks from the relevant frontagers. They did not know their names and issued a writ against "the owners of" certain land clearly identified by name. It was pointed out that only owners of that land at the date of the completion of the works could be liable. In order to cover that point the plaintiff sought to amend the description by adding "at the time of the completion of the works. Held: Leave to amend was properly refused. A writ cannot be issued in the terms proposed referring to the parties sought to be summoned in this vague way. The procedure established by the Act necessarily implies even if it does not expressly state that it is necessary to an action that the defendants should be named. The writ, in not naming the defendants, but merely describing them as the owners of adjoining property, is bad. The plaintiffs do not know, and the writ does not state, whether any one of the defendants is a lunatic, or an infant, or is residing abroad, or is under any kind of disability, in each of which cases some special directions or some special procedure might be required
Judicature Act 1873
Practice Note [1927] WN 290
2 Jan 1927

Tomlin J
Litigation Practice Casemap
1 Cites
1 Citers
Tomlin J set out the appropriate practice on attaching a private schedule to an order made by consent. The schedule records the terms of the settlement agreed between the parties but which terms are not ordered by the court and are not enforceable as a judgment.
Dashwood -v- Dashwood; 01-Nov-1927
Ormond Investment Co Ltd -v- Betts; HL 1928
Coleshill -v- Manchester Corporation; 1928
Graigola Merthyr Co Ltd -v- Swansea Corporation; 1928
Macleay -v- Macdonald; IHCS 1928
Conquer -v- Boot; CA 1928
In re British Reinforced Concrete Engineering Co Ltd [1929] 45 TLR 186
1929

McKinnon J
Litigation Practice Casemap

1 Citers
Practice on incapacity of the judge during a trial.