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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 109 cases, and was prepared on 21 October 2013. 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.
Duke of Bedford -v- Ellis [1901] AC 1
1901
HL
Lord MacNaghten
Litigation Practice, Intellectual Property Casemap
1 Citers
Ellis and five others sued on behalf of themselves and all other growers of fruit, flowers, vegetables, roots or herbs to enforce rights conferred on them by the Covent Garden Act 1828 against the Duke of Bedford as the owner of the market. The Duke of Bedford obtained as trike out. The Court discharged that order on the undertaking of the plaintiffs to join the Attorney-General as a defendant. The Duke's appeal was dismissed.
Lord Macnaghten discussed whether the rule only applied to claims to some beneficial right of property and said "But it seems to me that there is no reason whatever for so restricting the rule, which was only meant to apply the practice of the Court of Chancery to all divisions of the High Court. The old rule in the Court of Chancery was very simple and perfectly well understood. Under the old practice the Court required the presence of all parties interested in the matter in suit, in order that a final end might be made of the controversy. But when the parties were so numerous that you could never "come at justice", to use an expression in one of the older cases, if everybody interested was made a party, the rule was not allowed to stand in the way. It was originally a rule of convenience: for the sake of convenience it was relaxed. Given a common interest and a common grievance, a representative suit was in order if the relief sought was in its nature beneficial to all whom the plaintiff proposed to represent. To limit the rule to persons having a beneficial proprietary interest would be opposed to precedent, and not, I think, in accordance with common sense."
Re Collyer-Bristow & Co [1901] 2 KB 839
1901

Arbitration, Litigation Practice Casemap

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
Parker -v- Schuller (1901) 17 TLR 299
1901
CA
A L Smith MR, Collins, Romer LJJ
Jurisdiction, Litigation Practice Casemap

The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the allegation was that the contract was broken by reason of a failure to deliver in Liverpool the goods that were the subject of the contract. Leave was given ex parte and upheld inter partes. The plaintiffs now conceded that the way that their claim had been advanced had been misconceived in that a CIF contract involves an obligation to deliver documents, not the goods to which the documents relate. The plaintiffs tried to persuade the Court to uphold the leave given to serve out on the basis of substituting for the original claim a claim for failure to deliver the relevant documents in Liverpool. Held: Permission was refused. A L Smith MR said: "It was not until the case came into this Court that the plaintiff set up another cause of action. That could not be allowed."
Collins LJ said: "an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed . . to set up another and a distinct cause of action which was not before the Judge upon the original application. It was clear from the affidavit that the only case made on the original application was that the defendants were bound to deliver the goods in this country, and that there was a breach of that contract here, and upon that representation alone leave was originally granted to issue the writ and serve notice thereof abroad."
Romer LJ said: "an application for leave to issue a writ for service out of the jurisdiction ought to be made with great care and looked at strictly. If a material representation upon which the leave was obtained in the first instance turned out to be unfounded, the plaintiff ought not to be allowed, when an application was made by the defendant to discharge the order for the issue of the writ and the service, to set up another and a distinct cause of action which was not before the judge upon the original application."
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."
Oliver -v- Nautilus Steam Shipping Co Ltd [1903] 2 KB 639
1903

Litigation Practice Casemap
1 Citers
Bwllfa and Merthyr Dare Steam Collieries (1891) Ltd -v- Pontypridd Waterworks Co; HL 1903
Stevens -v- General Steam Navigation Co Ltd [1903] 1 KB 890
1903
CA
Stirling LJ
Litigation Practice Casemap
1 Citers
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.”
Harper -v- Inspector of Rutherglen (1903) 6 F 23
1903

Lord Trayner
Scotland, Litigation Practice Casemap
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".
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 Casemap

An amendment of a writ or a pleading relates back to the original date of the document amended.
Watson -v- M'Ewan [1905] AC 480
1905
HL
Earl of Halsbury LC
Litigation Practice, Defamation, Scotland Casemap

A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent ("the wife") in respect of proposed proceedings against her husband for separation and aliment. He was subsequently retained by the husband in the same proceedings. In preparing his witness statement he included some very damaging allegations based on matters that he had learned when acting for the wife, which included allegations of taking morphine and planning to procure an abortion. He subsequently gave oral evidence of these matters in the court proceedings. The wife brought an action against him for breach of confidence and for slander, relying on both what was said to the husband's lawyers and what was said in court. Held: The appellant was immune. The public policy which renders the protection of witnesses necessary for the administration of justice must also and as a necessary consequence extend to the preliminary examination of witnesses to find out what they can prove. The privilege surrounding evidence actually given in a Court of Justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of Justice when what is intended to be stated in the court is narrated to them.

Earl of Halsbury L said: "By complete authority, including the authority of this House, it has been decided that the privilege of a witness, the immunity from responsibility in an action when evidence has been given by him in a court of justice, is too well established now to be shaken." and "It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice--namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony."
"It appears to me that the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be stated in a Court of justice is narrated to them - that is, to the solicitor or writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply - that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, "I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box." If that could be done the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, "I shall not tell you anything; I may have an action brought against me tomorrow if I do; therefore I shall not give you any information at all." It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice - namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony." I

Horner -v- Franklin [1905] 1 KB 479
1905

Litigation Practice
1 Citers
Meadows -v- Grand Junction Waterworks Company [1905] 21 TLR 538
1905

Litigation Practice Casemap
1 Citers
William Brandt's Sons & Co -v- Dunlop Rubber Co; HL 1905
In re Nisbet and Potts' Contract [1905] 1 Ch 391
1905

Farwell J
Litigation Practice, Contract, Land Casemap
1 Citers
Where a party asserted he was a purchaser in good faith without notice and for value, the burden of proving all the elements of the defence is upon the purchaser. A title acquired by adverse possession was not paramount to, and did not destroy the equitable right of persons entitled to the benefit of prior restrictive covenants to enforce them against the land.
Farwell J said: "Covenants restricting the enjoyment of land, except of course as between the contracting parties and those privy to the contract, are not enforceable by anything in the nature of action or suit founded on contract. Such actions and suits alike depend on privity of contract, and no possession of the land coupled with notice of the covenants can avail to create such privity: Cox v. Bishop (1857) 8 De G.M. & G. 815. But if the covenant be negative, so as to restrict the mode of use and enjoyment of the land, then there is called into existence an equity attached to the property of such a nature that it is annexed to and runs with it in equity: Tulk v. Moxhay, 2 Ph. 774. This equity, although created by covenant or contract, cannot be sued on as such, but stands on the same footing with and is completely analogous to an equitable charge on real estate created by some predecessor in title of the present owner of the land charged. . . . effect is given to the negative covenant by means of the land itself. But the land cannot spend money on improving itself, and there is no personal liability on the owner of the land for the time being, because there is no contract on which he can be sued in contract."
Kine -v- Jolly [1905] 1 Ch 480
1905
CA
Cozens-Hardy LJ
Litigation Practice

1 Citers
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."
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 [1905] AC 480; [1905] UKHL 1
28 Jul 1905
HL
Lord Halbury LC
Litigation Practice
1 Cites

In respect of the indemnity given to witnesses, the phrase 'in office' can only refer to giving evidence. The only qualification to this is a prosecution for perjury or, possibly, an attempt to pervert the course of justice Lord Halbury LC: "The broad proposition I entertain no doubt about, and it seems to me to be the only question that properly arises here; as to the immunity of a witness for evidence given in a court of justice, it is too late to argue that as if it were doubtful. By complete authority, including the authority of this House [see Dawkins v Lord Rokeby (1875) LR 7HL 744] it has been decided that the privilege of a witness, the immunity from responsibility in an action where evidence has been given by him in a court of justice, is too well established now to be shaken. Practically I may say that in my view it is absolutely unarguable – it is settled law and cannot be doubted. The remedy against a witness who has given evidence which is false and injurious to another is to indict him for perjury; but for very obvious reasons, the conduct of legal procedure by courts of justice, with the necessity of compelling witnesses to attend, involves as one of the necessities of the administration of justice the immunity of witnesses from actions brought against them in respect of evidence they have given. So far the matter, I think, is too plain for argument."
[ Bailii ]
Martin -v- Nadel [1906] 2 KB 26
1906
CA
Stirling LJ, Vaughan Williams LJ
Banking, Jurisdiction, Litigation Practice Casemap


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
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
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."
Leigh -v- Gladstone (1909) 26 TLR 139
1909

Litigation Practice, Prisons
Discovery was sought of medical reports prepared by the prison medical officer for et governor. Held: Such reports were not privileged from production.
Allan & Sons Bill Posting Limited -v- Edinburgh Magistrates 1909 SC 70
1909

Lord Low
Scotland, Litigation Practice Casemap

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.
In re Aktiebolaget Robertsfors and La Société Anonymes des Papeteries de l'Aa [1910] 2 KB 727
1910
CA
Litigation Practice, Jurisdiction Casemap
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.
Glasgow Navigation Co -v- Iron Ore Co; HL 1910
Rex -v- Earl of Crewe, Ex parte Sekgome; CA 1910
Galbraith -v- Grimshaw and Baxter; CA 1910
Brown -v- Dean [1910] AC 373
1910

Loreburn LC
Litigation Practice

Pena Copper Mines Ltd -v- Rio Tinto Co Ltd (1911) 105 LT 846
1911

Litigation Practice

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
1 Citers
Interrogatories to the defendant asking what grounds he had for prosecuting will, as a rule, be refused.
Jones -v- Pacaya Rubber and Produce Co Ltd [1911] 1 KB 455 CA
1911
CA
Buckley LJ
Litigation Practice Casemap

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.'
Hirachand Punamchand -v- Temple; CA 1911
Dyson -v- Attorney General [1911] 1 KB 410; [1912] 1 Ch 158
1911
CA
Fletcher Moulton LJ, Cozens Hardy MR
Litigation Practice
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."
Russell -v- Stubbs Ltd; CA 1912
Lord Advocate -v- Walker Trustees; HL 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.
Shackleton -v- Swift [1913] 2 KB 302
1913
CA
Litigation Practice Casemap

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
In Re Hearn, De Bertodano -v- Hearn (No.1); ChD 1913
Barham -v- Lord Huntingfield; CA 1913
Russell -v- Stubbs Limited; HL 1913
Metropolitan Water Board -v- Johnson and Co [1913] 3 KB 900
1913

Channel J
Litigation Practice Casemap
1 Citers
In Re Hearn; CA 02-Jan-1913
Adam -v- Fisher [1914] 39 TLR 288
1914

Buckley J
Litigation Practice, Defamation Casemap
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.
White -v- Barnes [1914] WN 74
1914

Litigation Practice Casemap

In re Woking Urban District Council (Basingstoke Canal) Act 1911 [1914] 1 Ch 300
1914
CA
Phillimore LJ
Litigation Practice

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."
Princess Thurn and Taxis -v- Moffitt (1914) 31 TLR 2
1914

Litigation Practice
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.
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."
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
1 Citers
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
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 Casemap
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
1 Citers
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 Casemap
1 Cites

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 Casemap
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
1 Cites

(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 [1919] AC 815
1919
HL
Lord Buckmaster
Litigation Practice
1 Citers
". . . The construction of a statute of doubtful meaning, once laid down and accepted for a long time, ought not to be altered unless your Lordships could say positively that it was wrong and productive of inconvenience."
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] 1KB 76
1920

Litigation Practice
The word adapt means to "alter so as to make apt".
Hohler -v- Aston [1920] 2 Ch 420
1920

Sargant J
Wills and probate, Litigation Practice, Contract
1 Citers
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 [1921] 2 KB 291
1921
CA
Bankes LJ, Atkin LJ
Litigation Practice Casemap

Where the court lacks jurisdiction, jurisdiction cannot be conferred merely by the consent of the parties. Atkin LJ said: "but apart from such an admission the Court cannot give effect to an agreement, whether by way of compromise or otherwise, inconsistent with the provisions of the Act."
In re Mahmoud and Ispahami [1921] 2 KB 716
1921

Litigation Practice
1 Citers
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 [1921] 2 AC 250; [1922] 10 Ll Rep 703
1921
HL
Lord Dunedin
Litigation Practice, Damages

Lord Dunedin: "My Lords in these commercial cases it is I think of the highest importance that authorities should not be disturbed and if your lordships find that a certain doctrine has been laid down in former cases and presumably acted upon you will not be disposed to alter that doctrine unless you think it clearly wrong."
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
1 Citers
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
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 Casemap
1 Citers
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


(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
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

Lord Strathcona Steamship Co Ltd -v- Dominion Coal Co Ltd [1926] AC 108
1926
HL
Litigation Practice
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

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

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 [1928] AC 143
1928
HL
Lord Buckmaster
Land, Litigation Practice

1 Citers
The House considered the interpretation of a statute dealing with public rights of navigation. Held: ‘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’
Lord Buckmaster said of the statement by Lord Sterndale in Cape Brandy: ‘That is, in my opinion, an accurate expression of the law, if by ‘any ambiguity’ is meant a phrase fairly and equally open to divers meanings’.
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
1 Cites

Practice on incapacity of the judge during a trial.

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