swarb.co.uk - law index
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Litigation Practice - From: 1900 To: 1929
This page lists 114 cases, and was prepared on 04 April 2015.
Bullivant -v- Attorney-General for Victoria; PC 1900 -  AC 196;  2 QB 163
Parker -v- Schuller; CA 1901 - (1901) 17 TLR 299
Duke of Bedford -v- Ellis; HL 1901 -  AC 1
Re Collyer-Bristow & Co  2 KB 839
Arbitration, Litigation Practice
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 - (1903) 6 F 23
Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd -v- Pontypridd Waterworks Co; HL 1903 -  AC 426
Bankes -v- Jarvis; 1903 -  1 KB 549
Stevens -v- General Steam Navigation Co Ltd; CA 1903 -  1 KB 890
Oliver -v- Nautilus Steam Shipping Co Ltd  2 KB 639
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 -  UKPC 17;  AC 220
E M Bowden's Patents Syndicate Ltd -v- Herbert Smith & Co; 1904 -  2 Ch 86
Sneade -v- Wotherton Barytes & Lead Mining Co  1 KB 295
Lord Collins MR
An amendment of a writ or a pleading relates back to the original date of the document amended.
William Brandt's Sons & Co -v- Dunlop Rubber Co; HL 1905 -  AC 454
Kine -v- Jolly; CA 1905 -  1 Ch 480
Meadows -v- Grand Junction Waterworks Company  21 TLR 538
In re Nisbet and Potts' Contract; 1905 -  1 Ch 391
Watson -v- M'Ewan; HL 1905 -  AC 480
Horner -v- Franklin  1 KB 479
Stretton -v- Stubbs Ltd; CA 28-Feb-1905 - Times, 28 February 1905
Watson -v- McEwen; AB -v- CD; HL 28-Jul-1905 -  AC 480;  UKHL 1
Martin -v- Nadel  2 KB 26
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 -  1 KB 1
Swanson -v- Manson  ScotCS CSIH_6; 1907 SC 42
16 Jan 1907
Scotland, Litigation Practice
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."
[ Bailii ]
British Cash and Parcel Conveyors Ltd -v- Lamson Store Service Co Ltd; 1908 -  1 KB 1006
Brown -v- Dean; 1909 -  AC 373;  2 KB 573
Armour -v- Glasgow Royal Infirmary; 1909 - 1909 SC 916
Allan & Sons Bill Posting Limited -v- Edinburgh Magistrates; 1909 - 1909 SC 70
Leigh -v- Gladstone; 1909 - (1909) 26 TLR 139
Glasgow Navigation Co -v- Iron Ore Co; HL 1910 -  AC 293
Galbraith -v- Grimshaw and Baxter; CA 1910 -  1 KB 339
Rex -v- Earl of Crewe, Ex parte Sekgome; CA 1910 -  2 KB 576
In re Aktiebolaget Robertsfors and La Société Anonymes des Papeteries de l'Aa  2 KB 727
Litigation Practice, Jurisdiction
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.
Jones -v- Pacaya Rubber and Produce Co Ltd  1 KB 455 CA
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.'
Maass -v- Gas Light and Coke Co  2 KB 543
Interrogatories to the defendant asking what grounds he had for prosecuting will, as a rule, be refused.
Hirachand Punamchand -v- Temple; CA 1911 -  2 KB 11;  2 KB 330
Pena Copper Mines Ltd -v- Rio Tinto Co Ltd (1911) 105 LT 846
The court exercised its jurisdiction to make an order restraining the commencement of proceedings abroad.
Dyson -v- Attorney General; CA 1911 -  1 KB 410;  1 Ch 158
Lord Advocate -v- Walker Trustees; HL 1912 -  AC 95; 106 LT 194; 28 TLR 101
Russell -v- Stubbs Ltd; CA 1912 -  2 KB 200
Standing -v- Eastwood and Co  5 BWCC 268
Fletcher Moulton LJ
Jurisdiction, Litigation Practice
A court's jurisdiction cannot be created by the contract or consent of the parties.
Metropolitan Water Board -v- Johnson and Co  3 KB 900
In Re Hearn, De Bertodano -v- Hearn (No.1); ChD 1913 - (1913) 108 LT 452
Shackleton -v- Swift; CA 1913 -  2 KB 302
Russell -v- Stubbs Limited; HL 1913 - 1913 SC (HL) 13
Barham -v- Lord Huntingfield; CA 1913 -  2 KB 193
In Re Hearn; CA 2-Jan-1913 - (1913) 108 LT 737
In re Woking Urban District Council (Basingstoke Canal) Act 1911  1 Ch 300
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."
Lambert -v- Home  3 KB 86
A transcript of a case was "publici juris."
Princess Thurn and Taxis -v- Moffitt; 1914 - (1914) 31 TLR 2
Von Hellfield -v- E Rechnitzer and Mayer Frères & Co  1 Ch 748
Buckley Phillimore LJJ
Company, Litigation Practice
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."
Adam -v- Fisher  39 TLR 288
Litigation Practice, Defamation
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.
White -v- Barnes  WN 74
Guarantee Trust Co of New York -v- Hannay and Co; 1915 -  2KB 536
Reid -v- Cupper  2 KB 147
Buckley J, Pickford LJ
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.
Guaranty Trust Co of New York -v- Hannay & Co; CA 1915 -  2 KB 536
Porter -v- Freudenberg  1 KB 857
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  KB 21
Litigation Practice, Constitutional
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
Norman -v- Mathews; 1916 - (1916) 85 LJ KB 857
Asiatic Petroleum Co Ltd -v- Anglo-Persian Oil Co Ltd; CA 1916 -  1 KB 822
Webster -v- Bakewell Rural District Council (No 2); 1916 - (1916) 115 LT 678; (1916) LJ Ch 89; (1916) 80 JP 437; (1916) 14 LGR 1109
Ex parte Stott; 1916 -  1 KB 7
Bradford Corporation -v- Myers; HL 1916 -  1 AC 242
Blair -v- Haycock Cattle Co. (1917) 34 TLR 39
Lord Finlay LC
Aberconway v- Whetnall; 1918 - (1918) 87 LJ Ch 524
Schetky -v- Cochrane and the Union Funding Co; 1918 -  1 WWR 821
Arkadelphia Milling -v- St Louis Southwestern Railway; 1918 - (1918) 249 US 134
Hip Foong Hong -v- H. Neotia & Co; PC 1918 -  AC 888
Jones -v- S E and Chatham Railway; 1918 - (1918) 87 LJ KB 775
Clarke -v- Edinburgh and District Tramways Co; HL 1919 - 1919 SC (HL) 35
Re Boks & Co v Peters, Rushton & Co Ltd  1 KB 491
Arbitration, Litigation Practice
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".
Bourne -v- Keane; HL 1919 -  AC 815
Raja Setrucherla Ramabhadraraju -v- Maharajah of Jeypore All India Reports 1919 PC 150
Rodriguez -v- Speyer Brothers  AC 59
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.
In re Clay; Clay & Booth; CA 1919 -  1 Ch 66
The Ansonia; 1920 - (1920) 2 Ll L Rep 123
Hohler -v- Aston  2 Ch 420
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.
O'Rourke -v- Darbishire; HL 1920 -  AC 581
French -v- Champkin; 1920 -  1 KB 76
Joachimson -v- Swiss Bank Corporation  3 KB 110;  37 TLR 534
Litigation Practice, Banking
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.
Atlantic Shipping & Trading Co -v- Louis Dreyfus & Co; HL 1921 -  2 AC 250;  10 Ll Rep 703
Barton -v- Fincham; CA 1921 -  2 KB 291
Cape Brandy Syndicate -v- Inland Revenue Commissioners  1 KB 64
Rowlatt J, Lord Sterndale MR, Lord Atkinson
Income Tax, Litigation Practice
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."
in re Prior  3KB 333
The court considered its equitable powers of funds it held as security.
In re Mahmoud and Ispahami  2 KB 716
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.
Russian Commercial & Industrial Bank -v- British Bank of Foreign Trade  2 AC 438
Litigation Practice, Scotland
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."
Viscountess Rhondda's Claim  2 AC 339
Viscount Haldane, Lord Birkenhead LC
Litigation Practice, Constitutional, Discrimination
(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
Ellis -v- Deheer; 1922 -  2 KB 113
Secretary of State for Home Affairs -v- O'Brien; 1923 -  AC 603
Everett -v- Islington Guardians; 1923 -  1 KB 45 T
Secretary of State for Home Affairs -v- O'Brien; HL 1923 -  AC 603
Swiss Bank Corporation -v- Boehmische Industrial Bank; CA 1923 -  1 KB 673
Pinnock Bros -v- Lewis and Peat Ltd; 1923 -  1 KB 690
Mersey Docks and Harbour Board -v- Proctor; HL 1923 -  AC 253
Regina -v- Secretary of State for Home Affairs, Ex parte O'Brien; CA 1923 -  2 KB 361
George Hudson Ltd -v- Australian Timber Workers' Union; 1923 - (1923) 32 CLR 413
Performing Right Society Limited -v- London Theatre of Varieties Limited; HL 1924 -  AC 1;  All ER Rep Ext 794
Slack -v- Leeds Industrial Co-operative Society Ltd; CA 1924 -  2 Ch 475
Knight -v- Knight  Ch 835
Lord Strathcona Steamship Co Ltd -v- Dominion Coal Co Ltd  AC 108
Hoystead -v- Commissioner of Taxation; PC 1926 -  AC 155;  All ER 56; (1926) 42 TLR 207; 67 ER 313
Owners of Steamship Hontestroom -v- Owners of Steamship Sagaporack; HL 1927 -  AC 37
Re The Hontestroom; HL 1927 -  AC 37
Friern Barnet UDC -v- Adams; CA 1927 -  2 Ch 25
Richardson -v- Richardson  P 228,
Jurisdiction, Litigation Practice
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  44 RPC 151
Evidence, Litigation Practice
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
Commonwealth, Litigation Practice
(New South Wales)
Practice Note  WN 290
2 Jan 1927
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; 1-Nov-1927 - (1927) 71 SJ 911;  WN 276; (1927) 64 LJNC 431
Ormond Investment Co Ltd -v- Betts; HL 1928 -  AC 143
Coleshill -v- Manchester Corporation; 1928 -  1 KB 776
Graigola Merthyr Co Ltd -v- Swansea Corporation; 1928 -  1 Ch 31
Conquer -v- Boot; CA 1928 -  2 KB 336;  All ER 120
Macleay -v- Macdonald; IHCS 1928 - 1928 SC 776
In re British Reinforced Concrete Engineering Co Ltd  45 TLR 186
Practice on incapacity of the judge during a trial.
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