Litigation Practice - 1970- 1979

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This page lists 147 cases, and was prepared on 28 October 2012.

Manchester Corporation -v- Connolly [1970] Ch 420
1970 CA Lord Diplock	Planning, Land, Litigation Practice	Casemap 1 Citers
	The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: "The writ of possession was originally a common law writ (although it is now regulated, as I say, by Ord. 45 r.3) under which it was ordered that the plaintiff recover possession of the land. Like other common law remedies it did not act in personam against the defendant. It authorised the executive power as represented by the sheriff to do certain things, perform certain acts, in this particular case to evict from land persons who are there and deliver possession of the land to the plaintiff. "

Gross -v- Lewis Hillman Ltd [1970] Ch 445
1970 CA Cross LJ	Litigation Practice	Casemap 1 Citers
	Where there has been no misdirection on an issue of fact by the trial judge the presumption is that his conclusion on issues of fact is correct. The Court of Appeal will only reverse the trial judge on an issue of fact when it is convinced that his view is wrong. In such a case, if the Court of Appeal is left in doubt as to the correctness of the conclusion, it will not disturb it.

Morris -v- Redland Bricks Ltd [1970] AC 652
1970 HL Lord Upjohn	Litigation Practice	Casemap 1 Cites 1 Citers
	The requirement of proof is greater for a party seeking a quia timet injunction than otherwise. Lord Upjohn: "A mandatory injunction can only be granted where the plaintiff shows a very strong probability upon the facts that grave danger will accrue to him in the future. As Lord Dunedin said in 1919 it is not sufficient to say "timeo". [A-G for Canada v Ritchie Contracting]. It is a jurisdiction to be exercised sparingly and with caution but in the proper case unhesitatingly." and "[T]he court must be careful to see that the defendant knows exactly in fact what he has to do and this means not as a matter of law but as a matter of fact, so that in carrying out an order he can give his contractors the proper instructions."

Associated Leisure (Phonographic Equipment Co) Ltd -v- Associated Newspapers Ltd [1970] 2 QB 450; [1970] 2 All ER 754
1970 CA Lord Denning MR	Defamation, Litigation Practice	Casemap 1 Citers
	The defendant sought to be allowed to amend its pleading to add justicfication. They now appealed against refusal. Held: The amendment was allowed. However, in general, in a libel action, if the defendant seeks at a late stage to amend his defence by adding a plea of justification, his application will be closely inquired into and it will be allowed where he has shown due diligence in making his inquiries and investigations, but it may well be refused if he has been guilty of delay or has not made proper inquiries earlier. Lord Denning MR said: "Like a charge of fraud, [counsel] must not put a plea of justification on the record unless he has clear and sufficient evidence to support it."

Whishaw -v- Stephens (on appeal from In re Gulbenkian's Settlement) [1970] AC 508
1970 HL Lord Upjohn	Litigation Practice	Casemap 1 Citers
	In a fixed non-charitable trust (as opposed to a discretionary trust) the court must be able to draw up a list of beneficiaries before a trust can be recognised. The modern approach of a court is not to reject any part of a legal document as meaningless without first trying hard to give it a sensible meaning.

Shepherd Homes Ltd -v- Sandham [1971] Ch 340
1971 Megarry J	Litigation Practice	1 Citers
	Megarry J said: "a high degree of assurance that at the trial it will appear that at the trial the injunction was rightly granted."

Brookfield Properties Limited -v- Newton [1971] 1 WLR 862
1971	Litigation Practice	Casemap 1 Citers
	An allegation of negligence against an architect in the design of a building arose out of the same or substantially the same facts as an allegation of negligence against him in respect of the supervision of the construction of the same building, so that even if it added a new cause of action, such an amendment would be allowed.

In re Field [1971] 1 WLR 555
1971 Goff J	Wills and Probate, Litigation Practice	Casemap 1 Citers
	The plaintiff had an order for maintenance against the deceased's estate. She brought proceedings in her own name against an insurance company which had wrongly paid a claim to the widow and not to the estate. The insurer sought a strike out. The court had previously refused to order the administrators to sue or alternatively that she should be at liberty to sue in her own name in the new proceedings. The personal representatives were already joined as formal defendants. Held. The court rejected the argument that a beneficiary could only sue where a court would direct the executor to sue. That test was not a definition of the circumstances in which the beneficiary could sue in his or her name. This was not such a case, because the widow was the only beneficiary apart from the plaintiff. Though the strike out was refused. the fact that an asset belonging to the estate could only be got in if the plaintiff sued the company could not, by itself, be a special circumstance "because, if it were, it would wholly abrogate the rule that special circumstances have to be shown." There were special circumstances for the reason that the alleged asset had been paid to the widow on the footing that it was not part of the estate. The widow could not be expected to litigate this question. The circumstances were similar to the case where the cause of action was held on a bare trust. The relevance of that was that this court had held that a beneficiary under a bare trust could bring proceedings in his own name and where the trustees refused to sue, joining the other beneficiaries as defendants: Harmer v Armstrong [1934] Ch 65. Goff J said: "She does not and, indeed, cannot ask for payment to herself, but she asks for payment to the administrators who are added as defendants for the purpose of regularising the proceedings and, by her writ and statement of claim, she expressly disclaims any relief as against them." Held. There were special circumstances entitling the former wife to make the claim, particularly because there were no other beneficiaries and the alleged asset had been paid to the widow on the footing that it was not part of the estate. Consequently "justice requires that the plaintiff, who is the only other person interested, should be allowed to have this question properly tried by the court."

Worcester Works Finance Ltd -v- Cooden [1972] 1 QB 210; [1971] 3 ALL ER 708
1971 CA Lord Denning MR, Phillimore LJ, Megaw LJ	Litigation Practice, Consumer
	A company which re-took possession of a car, which they had sold in exchange for a dishonoured cheque, had taken possession under a disposition. The meaning of disposition was dealt with differently by the three members of the Court of Appeal. Lord Denning said that the word "disposition" was a very wide word and cited what Stirling J. had said in Carter v Carter [1896] 1 Ch 62 at 67, that a disposition extends "to all acts by which a new interest (legal or equitable) in the property is effectively created ". Phillimore LJ said that "to constitute a disposition the dealing with the goods must go beyond the mere transfer or delivery of them: there must be some disposal which involved transfer of property". Megaw LJ said " "Disposition" must involve some transfer of an interest in property, in the technical sense of the word "property" as contrasted with mere possession." The Court of Appeal and the High Court was not bound to follow decisions of the court which the Privy Council had held to be wrongly decided. Lord Denning MR said: "although decisions of the Privy Council are not binding on this court, nevertheless when the Privy Council disapprove of a previous decision of this court, or cast doubt on it, then we are at liberty to depart from the previous decision. I am glad to depart from those earlier cases and to follow the Privy Council."

Attorney General -v- Chaudry [1971] 1 WLR 1614
1971 CA Lord Denning MR	Litigation Practice, Administrative	Casemap 1 Citers
	The court has jurisdiction to grant a civil law remedy by way of injunction in order to enforce the public law, except in cases where statute had expressly or by necessary implication removed the jurisdiction. Whenever Parliament has enacted a law and given a particular remedy for the breach of it, such remedy being in an inferior court, nevertheless the High Court always has reserve power to enforce the law so enacted by way of an injunction or declaration or other suitable remedy. The High Court has jurisdiction to ensure obedience to the law whenever it is just and convenient so to do.

Slough Estates Ltd -v- Slough Borough Council [1971] AC 958
1971 HL Lord Reid	Litigation Practice	Casemap 1 Citers
	Extrinsic evidence may be used to identify a thing or place referred to in a public document. Lord Reid said however that this was different from using evidence of facts known to the maker of the document but which are not common knowledge to alter or qualify the apparent meaning of words or phrases used in it. As he put it, members of the public, entitled to rely on a public document, ought not to be subject to the risk of its apparent meaning being altered by the introduction of extrinsic evidence.

Empresa Cubana de Fletes -v- Lagonisi Shipping Co. Ltd. (The Georgios C) [1971] 1 Ll R 7
1971	Litigation Practice	Casemap 1 Citers

Worcestershire Works Finance Limited -v- Cowden Engineering Limited [1971] 3 All ER 706
1971	Litigation Practice	Casemap 1 Citers
	The Privy Council, if it disapproves of a previous decision of the Court of Appeal, is at liberty to depart from it

Ascherberg, Hpwood and Crew Ltd -v- Casa Musicale Sonzogno di Petro Ostall SNC [1971] 1 WLR 1128
1971	Litigation Practice	Casemap 1 Citers
	A party seeking to rely upon foreign law has a duty to plead it.

Dowty Boulton Paul Ltd v Wolverhampton Corporation [1971] 1 WLR 204
1971	Litigation Practice	Casemap 1 Citers
	An order was sought to require the defendants to keep an airfield open as a going concern. Held: The order was refused. Pennycuick V-C: "It is very well established that the court will not order specific performance of an obligation to carry on a business." and "It is unnecessary in the circumstances to discuss whether damages would be an adequate remedy to the company."

Regina -v- Schildcamp [1971] AC 1
1971 HL Lord Upjohn	Litigation Practice	Casemap 1 Citers
	Lord Upjohn considered the duty of the court when considering an Act of Parliament: "The task of the court is to ascertain the intention of Parliament; you cannot look at the section, still less a subsection, in isolation, to ascertain that intention; you must look at all the admissible surrounding circumstances before starting to construe the Act."

The "Ferdinand Retzlaff" [1972] 2 Lloyd's Rep 120
1971 Brandon J	Litigation Practice	Casemap 1 Citers
	The plaintiff shipowners claimed damages for detention following a collision with the defendants' ship. There was an issue as to how long the ship repairs would have taken if they had been done at Bremen. The defendants adduced evidence on this point in the form of an exchange of letters. Held: In considering what weight to give to the letters under section 6(3) of the Civil Evidence Act 1968, the court identified relevant circumstances, and said also that it was necessary to take account of the fact that the evidence was unsworn and could not be tested by cross-examination. This was particularly important where the evidence related to hypothetical rather than actual facts. Brandon J said: "My view is quite simply that matters of this importance, in a case of this kind, should be proved by oral evidence, and that letters obtained at the time and in the way that these were obtained should have little weight attached to them. I cannot think that the Civil Evidence Act 1968, was intended, in general, to change the long established system by which seriously disputed central issues in civil cases are tried on oral evidence, given on oath and capable of being tested by cross-examination, and to substitute for it a system of trial on unsworn documents brought into existence by parties to the proceeding post litem mortam, and I do not think the Act should be used, or rather abused, so as to produce such a result."
	Civil Evidence Act 1968 6(3)

Becker -v- Teale [1971] 1 WLR 1475
1971 Davies LJ	Litigation Practice
	Davies LJ considered the approach to be taken when hearing an application for permission to bring proceedings by a person subject to a Grepe v Loam order restraining him in that regard. Davies LJ said: "In my view, the jurisdiction which is given by that section to a judge in chambers to give leave for the institution or continuance or proceedings by a vexatious litigant is a jurisdiction which should be very carefully and sparingly exercised. Ex hypothesi the litigant has already 'habitually and persistently and without any reasonable ground instituted vexatious legal proceedings'; and I think that there is a high onus cast on such a litigant when he or she applies to the judge for the leave mentioned in the section."

Regina -v- Schildkamp [1971] AC 1
1971 HL Upjohn L, Lord Reid	Crime, Litigation Practice	Casemap 1 Cites 1 Citers
	The defendant was accused of defrauding the company's creditors. Held: Not guilty. When interpreting a statute, the words of a heading cannot have equal weight with the words of the Act. The courts sometimes have to fill lacunae in legislation. Punctuation could be used as aids in cases of ambiguity as could the long title of the Act, headings and side note. Titles and cross-headings need to be treated with caution because they are not normally directly considered by Parliament and whilst they ought to indicate the scope of the sections which follow, there is always the possibility that the scope of one of these sections may have been widened, for example by amendment.

Purcell -v- F C Trigell Ltd [1971] 1 QB 359
1971 CA Wynn LJ, Buckley LJ	Litigation Practice	Casemap 1 Citers
	The court will not interfere with an existing consent order, save in circumstances in which it could interfere with a contract as a matter of substantive law.

Purcell -v- Triggle [1971] 2 All ER 1162
1971 CA Lord Justice Wynn	Litigation Practice	Casemap 1 Citers
	The only possible action to set aside an order made by consent would be an action in the original court for the order to be set aside "on grounds which would justify the setting aside of a contract entered into with knowledge of the material matters by legally competent persons"

Vendervell Trustees Ltd -v- White [1971] AC 912
1971 HL	Litigation Practice	Casemap 1 Citers
	Narrow interpretation of RSC Order 15 R 66

Comet Products UK Ltd –v- Hawkex Plastics [1971] 2 QB 67
1971 CA Lord Denning MR	Litigation Practice, Contempt of Court	Casemap 1 Citers
	The court was asked whether a defendant should be cross-examined on an affidavit sworn by him on an application by the plaintiff to commit him for contempt. The cross-examination was likely to cover issues in the action and on that basis it was held that it should not have been allowed. Lord Denning MR: "This case raises questions of some importance. Mr Sparrow [Counsel for the plaintiffs] submitted that in proceedings of this kind the defendant can be compelled to give evidence even against himself. Mr Sparrow pointed out that this is a case of civil contempt and not criminal. The difference is well known. A criminal contempt is one which takes place in the face of the court, or which prejudices a fair trial and so forth. A civil contempt is different. A typical case is disobedience to an order made by the court in a civil action. I cannot accept counsel's submission. Although this is a civil contempt, it partakes of the nature of a criminal charge. The defendant is liable to be punished for it. He may be sent to prison. The rules as to criminal charges have always been applied to such a proceeding. I see that Cross J in Yianni v Yianni, so decided; and furthermore we ourselves in this court, in Re Bramblevale Ltd, said that it must be proved with the same degree of satisfaction as in a criminal charge. It follows that the accused is not bound to give evidence unless he chooses to do so. In this connection I quote what Bowen LJ said in Redfern v. Redfern [1891] P 139 at 147, [1886-90] All ER Rep 524 at 528:- 'It is one of the inveterate principles of English law that a party cannot be compelled to discover that which, if answered, would tend to subject him to any punishment, penalty, forfeiture ... "no one is bound to incriminate himself'" This was not always the law in the case of civil contempt. In the days of Sir William Blackstone, 200 years ago, civil contempt was an exception to the general principle. In those days a plaintiff was entitled to deliver interrogatories to the defendant, which the defendant was bound to answer on oath. In his Commentaries (18th Edn, 1829, Bk4, page 287) Sir William Blackstone said that:- 'this method of making the defendant answer upon oath to a criminal charge, is not agreeable to the genius of the common law in any other instance"; and he went on to say at page 288:- 'by long and immemorial usage,[it] has now become the law of the land'. I am prepared to accept that such a rule did exist in the days of Sir William Blackstone. But I do not think it exists any longer today. The genius of the common law has prevailed. I hold that a man who is charged with contempt of court cannot be compelled to answer interrogatories or to give evidence himself to make him provide his guilt. I reject the submission that the defendant is a compellable witness in the contempt proceedings against him."

Fredericks and Pelhams Timber Buildings -v- Wilkins [1971] 1 WLR 1197
1971 QBD Roderick Evans J	Litigation Practice	Casemap 1 Citers

Skone -v- Skone and Another [1971] 1 WLR 812; [1971] 2 All ER 582
1971 HL Lord Denning, Lord Hodson	Litigation Practice	Casemap 1 Cites 1 Citers
	The husband appealed, seeking a new trial of a divorce petition following the discovery of fresh evidence consisting of a bundle of love letters from the co-respondent to the wife clearly showing that, contrary to his sworn evidence, he had committed adultery with her. Held: The House admitted the fresh evidence. Where a strong prima facie case of wilful deception is disclosed, a new trial will be ordered. Lord Denning said: "It is very rare that an application is made for a new trial on the ground that a witness has told a lie. The principles to be applied are the same as those when fresh evidence is sought to be introduced. In order to justify the reception of fresh evidence for a new trial, three conditions must be fulfilled: first it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial: second, the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive; third, the evidence must be such as is presumably to be believed, or in other words it must be apparently credible, although it need not be incontrovertible." Lord Hodson said: "Assuming, as I think your Lordships must for the purposes of this application, that the letters sought to be tendered as evidence are genuine, the basis of the judge's finding of fact at the trial has been falsified to such an extent that to leave matters as they are would, in my opinion, be unjust . . A strong prima facie case of wilful deception of the court is disclosed." and "The situation of the wife is or was, however, at the material times a peculiar one in that she was in the opposite camp in the sense that she was anxious not to do anything without the approval of the co-respondent, feeling that her interests were bound up with his. The petitioner was advised by counsel, as I have said, and I find it impossible to hold that in these circumstances it is right to hold that the petitioner failed to exercise due diligence in this matter."

McKenzie -v- McKenzie [1971] P 33; [1970] 3 WLR 472
1971	Litigation Practice	Casemap 1 Citers
	The court approved the use of an unpaid unqualified friend to a litigant to assist him in presenting his case when acting in person in a defended divorce case. Such friend would not be able address the court except with the express allowance by the court of an ad hoc right of audience.

Mulholland -v- Mitchell [1971] AC 666; [1971] 1 WLR 93
1971 HL Lord Hodson, Lord Wilberforce, Lord Pearson	Litigation Practice	Casemap 1 Citers
	The House was asked whether to re-open an assessment of damages where there had been a very marked change in the injured person's situation shortly after the trial. There was no suggestion of fraud. The Court of Appeal had decided to admit the fresh evidence with a view to reassessing the damages. Held. The appeal was dismissed. The circumstances were exceptional. The exercise by the Court of Appeal of its discretion to admit fresh evidence as to matters arising after the date of the trial was largely a matter of discretion and degree. The principle that there should be finality in litigation should be borne in mind and evidence could not be admitted of every change which might have occurred since trial. Lord Hodson said: "In this case I think that it can be fairly argued that the basis upon which the case was decided at the trial was suddenly and materially falsified by a dramatic change of circumstances. An appeal on the whole question of damages is pending and it would be unsatisfactory for the Court of Appeal to deal with that appeal without taking into account the falsification, if such there be, of the basis of the trial judge's award. In the absence of the fresh evidence, the Court of Appeal would be restrained from dealing with the reality of the case before it." Lord Wilberforce said: "I do not think that, in the end, much more can usefully be said than, in the words of my noble and learned friend, Lord Pearson, that the matter is one of discretion and degree ( Murphy [1969] 1 WLR 1023, 1036). Negatively, fresh evidence ought not to be admitted when it bears upon matters falling within the field or area of uncertainty, in which the trial judges's estimate has previously been made. Positively, it may be admitted if some basic assumptions, common to both sides, have clearly been falsified by subsequent events, particularly if this has happened by the act of the defendant. Positively, too, it may be expected that courts will allow fresh evidence when to refuse it would affront common sense, or a sense of justice. All these are only non-exhaustive indications; the application of them, and their like, must be left to the Court of Appeal. The exceptional character of cases in which fresh evidence is allowed is fully recognised by that Court." Lord Pearson explained the usual position saying: "The normal rule in accident cases is that the sum of damages falls to be assessed once and for all at the time of the hearing. When the assessment is made, the court has to make the best assessment it can as to events which may happen in the future. If further evidence as to the new events were too easily admitted, there would be no finality in litigation."

In Re Wykeham Terrace [1971] 1 Ch 204
1971 ChD Stamp J	Litigation Practice	1 Citers
	Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was effected by putting it through the letter box. Held. The application was refused. A person claiming an order of this court against another, except where a statute provides otherwise, cannot obtain that relief except in proceedings to which that other person is a party and after that other person has had the opportunity of appearing before this court and putting forward his answer to the claim. An order made ex parte will bind only those who are parties to or attending the proceedings. This principle is blurred where the action is an action for the recovery of land by reason of the process by which the judgment is executed. The sheriff acting pursuant to a writ of possession will be bound to turn out those he finds upon the land whether they are bound by the judgment or not. Stamp J: “No doubt a different and perhaps a better process . . could be provided to meet particular cases and more particularly a case where unknown persons are in occupation of land claimed by the Plaintiff”.

Norwich Pharmacal Co and others -v- Customs and Excise Commissioners [1972] 1 All ER 972
1972 ChD	Intellectual Property, Litigation Practice	Casemap 1 Citers

Re Taylor's Application [1972] 2QB 369
1972	Litigation Practice	Casemap 1 Citers
	If the approval of the litigation friend is required and it appears that the litigation friend is acting unreasonably in withholding his consent, steps can be taken to remove him and appoint another litigation friend in his place.

Moore -v- News of the World [1972] 1 QB 441
1972 CA Stephenson LJ, Lord Denning MR	Litigation Practice, Torts - Other	Casemap 1 Citers
	An article was published which the plaintiff said left readers with the false apprehension that she had written it. She claimed under the statutory tort of false attribution. Held: The judge was correct to direct the jury to make up their minds what the impression was to the reader. Confirming that a judge need not deal in detail with facts which were admitted by both parties when directing the jury in a defamation trial, “There were left out of the summing up, as out of every summing up which deserves the name, some of the things which one party, and probably both parties, would have liked put in; but there was no omission which could have led to a misunderstanding or injustice.” Lord Denning MR set out section 5 of the 1952 Act and said: "That is a very complicated section, but it means that a Defendant is not to fail simply because he cannot prove every single thing in the libel to be true. If he proves the greater part of it to be true, theneven though there is a smaller part not proved, nevertheless the Defendant will win as long as the part not proved does not do the Plaintiff much more harm."
	Copyright Act 1956 843 - Defamation Act 1952 5

Thomas Bishop Ltd -v- Helmville Ltd [1972] 1 QB 464
1972 CA Orr LJ	Litigation Practice	Casemap 1 Citers
	The court considered what was to be understood by a judgment which had been regularly obtained. Orr LJ (dissenting): "the point of time to be looked at in deciding whether the judgment was regularly obtained is the time when the judgment was given or signed, and if at that time there is nothing known to the court (or to the plaintiff whose duty it would be to communicate it to the court) which indicates that the relevant process has not been delivered in the ordinary course of post, it is to be deemed to have been so delivered for the purposes of that judgment, though it will be open to the defendant to apply to have that judgment set aside on the court's discretion on the ground, inter alia, that he was not served in time."

Fleet Mortgage and Investment Company Limited -v- Lower Maisonette [1972] 1 WLR 765
1972	Litigation Practice, Natural Justice	Casemap 1 Citers
	Natural justice required the High Court Rules to be construed as requiring the tenant to be given notice of the landlord's application for leave to issue a writ of execution following an alleged breach of a conditional possession order.

C H Giles & Co v Morris [1972] 1 WLR 307
1972 Megarry J	Litigation Practice	Casemap 1 Citers
	Megarry J considered why a court should be reluctant to create an obligation to continue a business where a court might be asked to judge compliance:: "difficulties of constant superintendence" were a "narrow consideration" because "there is normally no question of the court having to send its officers to supervise the performance of the order . . . . Performance . . . is normally secured by the realisation of the person enjoined that he is liable to be punished for contempt if evidence of his disobedience to the order is put before the court; . . ."

Palamisto General Enterprises SA -v- Ocean Marine Insurance Limited [1972] 2 WLR 1425
1972 CA Buckley LJ	Litigation Practice	Casemap 1 Citers
	"Where a party asserts his opponent's complicity in … criminal misconduct, the case is pre-eminently one in which not only the RSC (Ord. 18 r.12(1) and Ord. 72 r. 7(2)) but also fair treatment require that, so far as practicable, the matter shall be pleaded with particularity so that the party accused may know what case he has to meet. But even if the allegations in the present statement of claim fall short of asserting criminal misconduct, they undoubtedly impute conduct of a gravely improper character which call for no less clear particularisation ."

Jones -v- Secretary of State for Social Services [1972] AC 944
1972 HL	Litigation Practice	Casemap 1 Citers
	Unsatisfactory decisions of the highest court could cause uncertainty because lower courts tend to distinguish them on inadequate grounds.

In re Barrell Enterprises [1973] 1 WLR 19; [1972] 3 All ER 631
1972 CA Russell LJ	Litigation Practice	Casemap 1 Citers
	A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the successful party ought, save in the most exceptional circumstances, to be able to assume that the judgment is a valid and effective one. Here, the contemnor obtained from the court her release from custody but was ordered to pay the costs of her application for release. Russell LJ said: "When oral judgments have been given, either in a court of first instance or on appeal, the successful party ought save in most exceptional circumstances to be able to assume that the judgment is a valid and effective one. . The cases to which we were referred in which judgments in civil courts have been varied after delivery (apart from the correction of slips) were all cases in which some most unusual element was present . . In all these cases there were circumstances of a wholly exceptional character d. It is clearly not permissible for a party to ask for a further hearing merely because he has thought of a possible ground of appeal that he originally overlooked. The discovery of fresh evidence has never been suggested as a ground for reopening the argument before the Court of Appeal. If fresh evidence comes to light, of such a character as to call for further consideration of the issues, the right way to deal with the situation is by applying for leave to appeal to the House of Lords: see Murphy v. Stone-Wallwork (Charlton) Ltd [1961] 1 WLR 1023; or, if such appeal be not available in a contempt case, by application for release."

Regina -v- Lewes Justices ex parte Secretary of State for the Home Department [1973] AC 388; [1972] 2 All ER 1057
1972 HL Lord Simon of Glaisdale	Litigation Practice	Casemap 1 Citers
	Lord Simon of Glaisdale said: "the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that courts should have the fullest possible access to all relevant material . . but once the former public interest is held to outweigh the latter, the evidence cannot in any circumstances be admitted. It is not a privilege which may be waived . . by the Crown . . or by anybody else".

Lane -v- Willis [1972] I WLR 333; [1972] 1 All ER 430
1972 CA Sachs LJ	Litigation Practice	Casemap 1 Citers
	An order for the medical examination of a party to an action is an invasion of personal liberty, and and should only be granted when it is reasonable in the interests of justice so to order, and when the refusal of a medical examination is alleged to be unreasonable. The Court has jurisdiction to grant a stay whenever it was just and reasonable so to do and could do so where the Plaintiff's refusal was such as to prevent the just determination of the cause. Sachs LJ said: "[when] refusal of a medical examination is alleged to be unreasonable, the onus lies on the party who says that it is unreasonable and who applies for the order to show, on the particular facts of the case, that he is unable properly to prepare his claim (or defence) without that examination. The onus lies firmly on the applicant, as counsel for the defendants very rightly conceded."

Middlemiss & Gould v Hartley Corporation Pty Ltd [1972] 1 WLR 1643
1972 CA Lord Denning MR	Arbitration, Litigation Practice	Casemap 1 Citers
	The defendant challenged enforcement of an arbitration award. Held. The challenge had not been made in time, and the award was final and conclusive. Lord Denning MR said that an arbitration award is like a final judgment which should be enforced unless it can be shown to be invalid. Edmund Davies LJ

Norwich Pharmacal Co and others -v- Customs and Excise Commissioners [1972] 2 All ER 813
2 Jan 1972 CA Buckley LJ	Intellectual Property, Litigation Practice	1 Cites 1 Citers
	The plaintiffs sought discovery of the names of patent infringers from the defendant third party, submitting that by analogy with trade mark and passing-off cases, the Customs could be ordered to give discovery of the names. Held: Buckley LJ said: "If a man has in his possession or control goods the dissemination of which, whether in the way of trade or, possibly, merely by way of gifts (see Upmann v Forester (1883) 24 ChD 231) will infringe another's patent or trade mark, he becomes, as soon as he is aware of this fact, subject to a duty, an equitable duty, not to allow those goods to pass out of his possession or control at any rate in circumstances in which the proprietor of the patent or mark might be injured by infringement ensuing. The man having the goods in his possession or control must not aid the infringement by letting the goods get into the hands of those who may use them or deal with them in a way which will invade the proprietor's rights. Even though by doing so he might not himself infringe the patent or trade mark, he would be in dereliction of his duty to the proprietor. This duty is one which will, if necessary, be enforced in equity by way of injunction: see Upmann v Elkan (1871) LR 12 Eq 140 (1871) 7 Ch App 130. The man having possession or control may also be under a duty to give information in relation to the goods to the proprietor of the patent or mark: Upmann v Elkan ."

Cassell & Co Ltd -v- Broome and Another [1972] 2 WLR 645; [1972] AC 1027; [1972] UKHL 3
23 Feb 1972 HL Lord Hailsham of St Marylebone LC, Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Wilberforce, Lord Diplock and Lord Kilbrandon	Defamation, Damages, Litigation Practice, Constitutional	Casemap 1 Cites 1 Citers
	The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. The court of appeal had considered Rookes v Barnard to have been decided per incuriam. Held: It was not for the Court of Appeal to direct a judge to ignore a decision of the House of Lords. The Young case gave guidance to be followed where conflicting decisions existed. "The bad conduct of the Plaintiff himself may also enter into the matter, where he has provoked the libel, or where perhaps he has libelled the defendant in reply. What is awarded is thus a figure which cannot be arrived at by any purely objective computation. This is what is meant when the damages in defamation are described as being "at large"" Rookes v Barnard was correct. The defendants having calculated that they would receive more from extra sales than they might have to pay in damages, it was open to the court to award exemplary damages. If, but only if, the sum awarded by way of compensation was inadequate to punish the defendant, the jury might mark their disapproval of his conduct by awarding a larger sum. The award of exemplary damages always remains discretionary. Compensatory and exemplary damages are "as incompatible as oil and vinegar" Lord Morris of Borth-y-Gest said: "I do not think that the word "calculated" was used to denote some precise balancing process. The situation contemplated is where someone faces up to the possibility of having to pay damages for doing something which may be held to have been wrong but where nevertheless he deliberately carries out his plan because he thinks that it will work out satisfactorily for him." Lord Hailsham considered the role of guidance on levels of damages from the court of appeal: "The first, and paramount consideration in my mind is that the jury is, where either party desires it, the only legal and constitutional tribunal for deciding libel damages including the award of damages. I do not think the judiciary at any level should substitute itself for a jury, unless the award is so manifestly too large . . that no sensible jury properly directed could have reached the conclusion . . The point is that the law makes the jury and not the judiciary the constitutional tribunal, and if Parliament had wished the roles to be reversed in any way, Parliament would have said so at the time of the Administration of Justice (Miscellaneous Provisions) Act 1933 . . It may very well be that, on the whole, judges, and the legal profession in general, would be less generous than juries in the award of damages for defamation. But I know of no principle of reason which would entitle judges, whether of appeal or at first instance, to consider that their own sense of the proprieties is more reasonable than that of a jury, or which would entitle them to arrogate to themselves a constitutional status in this matter which Parliament has deliberately withheld from them, for aught we know, on the very ground that juries can be expected to be more generous on such matter than judges."
	Administration of Justice (Miscellaneous Provisions) Act 1933
	Link[s] omitted

Pritam Kaur -v- S Russell & Sons Ltd [1972] 1 All ER 306
1 Jun 1972 QBD Willis J	Limitation, Litigation Practice	Casemap 1 Cites 1 Citers
	The plaintiff sought damages following the death of her husband when working for the defendants. He had died on 5 September 1967 but the writ was not issued until Monday 7 September 1970. The applicable limitation period was 3 years, which the defendants relied upon. The plaintiff argued that since the writ could not be issued when the court office was closed, it was permissible to issue on the next day upon which the court was open. Held: 'In the absence of direct authority that the plaintiff under the statute of limitations should not be treated in a similar way to the tenant in Hodgson's case, that the principles of law applicable to him are those set out in the judgment of Russell LJ in that in the absence of any days of grace or extenuating rule this action is barred.'

Pritam Kaur -v- S Russell & Sons Ltd [1973] 1 QB 336; [1973] 1 All ER 617; [1973] 2 WLR 147
2 Jun 1972 CA Lord Denning MR	Litigation Practice, Limitation	Casemap 1 Cites 1 Citers
	The plaintiff sought damages following the death of her husband when working for the defendant. The limitation period expired on Saturday 5 September 1970. The writ was issued on the Monday following. Held: The appeal succeeded. The writ was issued in time. Lord Denning MR said: "when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when time expires, then, if it turns out . . that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open". Lord Denning MR: "The defendants can say: "The plaintiff has three years in which to bring his action. If the last day is a Saturday or Sunday, or other dies non, he ought not to leave it until the last day. He ought to make sure and issue it the day before when the offices are open". The plaintiff can say: "The statute gives me three years in which I can bring my action. If I go into the offices on the last day, and find them closed, I ought not to be defeated on that account. I should be allowed to go next day when the offices are open. Otherwise I should be deprived of the three years which the statute allows me. Those arguments are so evenly balanced that we can come down either way. The important thing to do is to lay down a rule for the future so that people can know how they stand. In laying down a rule, we can look to parallel fields of law to see the rule there. The nearest parallel is the case where a time is prescribed by rules of court for doing any act. The rule prescribed in both the County Court and the High Court is this: If the time expires on a Sunday or any other day on which the court office is closed, the act is done in time if it is done on the next day on which the court office is open. I think we should apply a similar rule when the time is prescibed by statute for doing any act. By so doing, we make the law consistent in itself; and we avoid confusion to practitioners. So I am prepared to hold that, when a time is prescribed by statute for doing any act, and that act can only be done if the court office is open on the day when the time expires, then, if it turns out in any particular case that the day is a Sunday or other dies non, the time is extended until the next day on which the court office is open.

M & W Grazebrook Ltd v Wallens [1973] ICR 256
1973 Sir John Donaldson	Employment, Litigation Practice	Casemap 1 Citers
	Communications between the client and his non-lawyer representative, and communications between that representative and third party witnesses, are privileged despite the fact that the representative may have no professional qualification. Sir John Donaldson said: "Before industrial tribunals it is the rule, rather than the exception, for parties to be represented by persons other than lawyers. Indeed, it is the policy of Parliament to encourage such representation. If the law to be applied to industrial tribunals were not as stated in the note in the county court rules: "Communications not only with legal advisers, but with other agents, with an actual view to the litigation in hand, and the mode of conduct of it, also are privileged"], the position would arise that, for example, a personnel officer, when examining as a witness a works foreman, could, at the end of the works foreman's evidence, be called upon to hand over the proof of evidence from which he had been examining the witness. Obviously, that would be a wholly untenable situation."

McPhail -v- Persons, Names Unknown [1973] 3 All ER 393; [1973] Ch 447
1973 CA Lord Denning MR, Lawton LJ	Litigation Practice	Casemap 1 Cites 1 Citers
	The court was asked to make an order against persons unknown in order to recover land. Although an owner of land which was being occupied by squatters was entitled to take the remedy into his own hand, he was encouraged to go to a common law court and obtain an order that he "do recover" the land, and to issue a writ of possession immediately. The sheriff would execute the writ, although once the owner had obtained his order he was entitled to take possession at once by his own hand. Because he could lawfully take possession at once without the help of the court, the courts of common law never suspended the order for possession. Anyone who was squatting on the premises could be turned out at once. There was no provision for giving any time. Lord Denning said that a court of equity would never intervene in aid of someone wrongfully in possession of land so as to suspend an order for possession. "Seeing that in the case of a tenancy the owner is not entitled to regain possession himself by his own self-help, and that he is bound to come to the court to recover possession, it follows that the courts are able to fix a date on which possession shall be recovered. At any rate, the House of Lords has proceeded on that assumption (see J. & F. Stone Lighting and Radio Ltd. v. Levitt [1947] A.C. 209, 216); and Parliament has done likewise. Thus in section 138 of the County Courts Act 1888, Parliament said that at the end of a tenancy the judge may order possession to be given" either forthwith or on or before such day as the judge shall think fit to name; . . "That section was repealed by the County Courts Act 1934 and replaced by a simple provision in section 48 that "A county court shall have jurisdiction to hear and determine any action for the recovery of land . . " But the Act of 1934 was a consolidating Act. It did not alter the previous law. It certainly did not take away the power given by section 138 of the Act of 1888. It proceeded on the assumption that at the end of a tenancy a court has power to fix a date on or before which possession should be given. All the textbook writers, without exception, say that the county court has this power. Likewise in the Protection from Eviction Act 1964, Parliament in section 2 (1) said that when the court made an order for possession by the owner against the occupier: "...the court may suspend the execution of the order for such period, not exceeding 12 months from the date of the order, as the court thinks reasonable." That section was repealed by the Rent Act 1965 [section 52 and Schedule 7, Part 1], but Parliament cannot thereby have intended to take away the power of the court at the end of a tenancy to suspend the execution of its order. It simply left intact its previous power. If the county court has the power at the end of the tenancy to fix a date, then the High Court must have the like power. The County Courts Acts have always provided for the transfer of actions from the county court to the High Court, and vice versa, as for instance sections 49 and 50 of the County Courts Act 1959. It cannot be that, on such a transfer, the High Court has less power than the county court. In my opinion, therefore, when a tenancy has come to an end, the landlord is not entitled to take possession except by an order of the court: and, on making the order, the court has power to fix a date for possession." Lawton LJ said: "squatters were never able to enlist the aid of the Court of Chancery to resist a writ of possession and they cannot now. The position of tenants and licensees holding over may be different."
	Rules of the Supreme Court 113

In re S (F G) (Mental Health Patient) [1973] 1 WLR 178
1973 Ungoed Thomas J	Health, Litigation Practice	1 Citers
	The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act on the one hand and rules of court providing for the appointment of a next friend or guardian ad litem for a person under disability on the other. Held: Persons under disability under the rules of court, may include some incapable of managing and administering their property and affairs who were not "patients" for the purposes of the Mental Health Act. The rules of court did not contain or impose the requirement of judicial satisfaction after the consideration of medical evidence. There is no reason why the test of mental capacity, when applied to the power to pursue or defend legal proceedings, should necessarily lead to the same conclusion as it will when applied in order to determine whether the same person is or is not a patient within the Mental Health Act.
	Mental Health Act 1959 101

Rothermere -v- Times Newspapers Ltd [1973] 1 WLR 448
1973 CA Lord Denning MR	Defamation, Litigation Practice, Constitutional	Casemap 1 Citers
	The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury. Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated. Lord Denning MR said: "Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest -- and is then charged with libel -- then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents." and "the right given by our constitution to a Defendant who is charged with libel, either in criminal or civil proceedings. Every Defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the Defendant has ventured to criticise the government of the day, or those who hold authority or power in the state".
	Administration of Justice (Miscellaneous Provisions) Act 1933

Halifax Building Society -v- Clark [1973] Ch 307
1973 ChD Sir John Pennycuick V-C	Land, Litigation Practice
	In order to satisfy the requirements for obtaining statutory relief under the 1970 Act, the mortgagor had to be able to show that he was likely to be able to pay within the reasonable period referred to not only the arrears of instalments but also the principal sum due under the mortgage. Sir John Pennycuick V-C interpreted "any sums due under the mortgage" in sub-section (1) restrictively as the entire mortgage debt.
	Administration of Justice Act 1970 36(1)

John Zinc Co. Ltd. -v- Wilkinson [1973] RPC 717
1973 CA	Litigation Practice	Casemap 1 Citers
	Bearing in mind the seriousness of the allegation, proper and full particulars of an allegation of fraud must be set out in the pleadings.

Gunning -v- United Liverpool Hospitals’ Board of Governors [1973] 1 WLR 586
1973 CA Lord Denning MR	Litigation Practice	Casemap 1 Citers
	With regard to pre-action disclosure and the question of whether a party was 'likely' to be a party to subsequent proceedings, ‘likely’ must be given its more extended and open meaning because otherwise one of the fundamental purposes of the statute will have been undermined.

Morley London Developments Ltd v Rightside Properties Ltd (1973) 117 SJ 876
1973	Litigation Practice	Casemap 1 Citers
	It is open to a claimant to withdraw part of his claim without notice to the other side in order to take advantage of the administrative procedures provided by Order 19 rule 2 or, for that matter, Order 19 rule 3. But the judgment taken in such circumstances must make it clear on its face that the inappropriate claims have been abandoned.

Snelling -v- John Snelling [1973] 1 QB 79
1973	Litigation Practice	Casemap 1 Citers
	It can be an abuse of process for a party to bring proceedings on a cause against a defendant already released from liability for consideration.

Norwich Pharmacal Co and others -v- Customs and Excise Commissioners [1974] AC 133; [1973] 3 WLR 164; [1973] 2 All ER 943; [1973] UKHL 6; [1974] RPC 101; [1973] FSR 365
26 Jun 1973 HL Lord Reid, Lord Morris of Borth-y-Gest, Viscount Dilhorne, Lord Cross of Chelsea and Lord Kilbrandon	Litigation Practice, Information, Customs and Excise	Casemap 1 Cites 1 Citers
	The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their patents. Held: If someone, even innocently became involved in tortious acts committed by third parties, he became under a duty assist in discovery of the identity of the third party wrongdoers. How the information was acquired was not relevant. Duties of confidence owed by taxation authorities could be overborne if necessary. Lord Reid said: "So discovery to find the identity of a wrongdoer is available against anyone against whom the plaintiff has a cause of action in relation to the same wrong. It is not available against a person who has no other connection with the wrong than that he was a spectator or has some document relating to it in his possession. But the respondents are in an intermediate position. Their conduct was entirely innocent; it was in execution of their statutory duty. But without certain action on their part the infringements could never have been committed. Does this involvement in the matter make a difference?" to which he answered 'Yes'. Referring to the authorities, he said: "They seem to me to point to a very reasonable principle that if through no fault of his own a person gets mixed up in the tortious acts of others so as to facilitate their wrongdoing he may incur no personal liability but he comes under a duty to assist the person who has been wronged by giving him full information and disclosing the identity of the wrongdoers. I do not think that it matters whether he became so mixed up by voluntary action on his part or because it was his duty to do what he did. It may be that if this causes him expense the person seeking the information ought to reimburse him. But justice requires that he should co-operate in righting the wrong if he unwittingly facilitated its perpetration. I am the more inclined to reach this result because it is clear that if the person mixed up in the affair has to any extent incurred any liability to the person wronged, he must make full disclosure even though the person wronged has no intention of proceeding against him. It would I think be quite illogical to make his obligation to disclose the identity of the real offenders depend on whether or not he has himself incurred some minor liability. I would therefore hold that the respondents must disclose the information now sought unless there is some consideration of public policy which prevents that." Lord Kilbrandon: "There is no suggestion that in so doing he is pretending to exercise any right of relief against the discoverers. In my opinion, accordingly, the respondents, in consequence of the relationship in which they stand, arising out of their statutory functions, to the goods imported, can properly be ordered by the court to disclose to the appellants the names of persons whom the appellants bona fide believe to be infringing these rights, this being their only practicable source of information as to whom they should sue, subject to any special right of exception which the respondents may qualify in respect of their position as a department of state. It has to be conceded that there is no direct precedent for the granting of such an application in the precise circumstances of this case, but such an exercise of the power of the court seems to be well within broad principles authoritatively laid down. That exercise will always be subject to judicial discretion, and it may well be that the reason for the limitation in practice on what may be a wider power to order discovery, to any case in which the defendant has been 'mixed up with the transaction', to use Lord Romilly's words, or 'stands in some relation' to the goods, within the meaning of the decision in Post v Toledo, Cincinnati and St Louis Railroad Co (1887) 11 NERep 540, is that that is the way in which judicial discretion ought to be exercised."
	Link[s] omitted

Alfred Crompton Amusement Machines Ltd -v- Customs and Excise Commissioners [1974] AC 405; [1973] 2 All ER 1169
1974 HL Denning, Cross LL	Intellectual Property, Litigation Practice	Casemap 1 Cites 1 Citers
	An application was made to inspect documents held by the Customs and Excise Commissioners. The plaintiff sought to inspect the documents to discover whether calculations of taxes were correct. The Commissioners swore an affidavit identifying documents supplied to them by others containing confidential information about the affairs of persons other than the plaintiff who were not parties to the litigation. Much of the material appears to have been provided by those persons to the Commissioner of Customs and Excise pursuant to their statutory powers. Held: The Court had a discretion to order disclosure of the documents and a Court would do so "if it is in the public interest . . if either party wanted them before the Court, he would have to subpoena the third party to produce them." As to this ground of privilege, Lord Denning said: "Although the commissioners are not entitled to Crown privilege, they are, I think, entitled to claim privilege on another ground. The privilege is quite sufficiently claimed by Sir Louis Petch in his affidavit on the ground of confidence, but is not a privilege peculiar to the Crown. It is a privilege available to all litigants. It comes down to us from the Chancery Court. It is this; a party to litigation is not obliged to produce documents, or copies of documents, which do not belong to him, but which have been entrusted to his custody by a third party in confidence. It frequently happens that a party who thinks he may be involved in litigation goes to a friend who has a material document. The friend allows him in confidence to see it and take a copy of it. He takes a copy and hands it to his solicitor. The original document came into existence long before any litigation was contemplated. It was not prepared for the purpose of getting advice on it. If the party had been entrusted by the owner with the original, it would clearly be privileged from production, simply because it did not belong to him." Lord Denning then quotes some authorities and continues – “Likewise the copy in his hands is also privileged, because he was only allowed to take the copy in confidence, and it would be an abuse of that confidence to disclose it without the permission of the owner of the original.” Lord Cross said: "Here, on the other hand, one can well see that the third parties that have supplied this information to the commissioners because of their statutory powers would very much resent disclosure by the commissioner to the appellant and that it is not at all fanciful for Sir Louis to say that the knowledge that the commissioners cannot keep such information secret may be harmful to the official working of the Act. In a case where the considerations for and against disclosure appear to be fairly evenly balanced the court should I think uphold the claim for privilege on public interest and trust to the head of the department concerned to do whatever he can to mitigate the ill-effects of non-disclosure."
	Purchase Tax Act 1963

RCA Corporation -v- Reddingtons Rare Records [1975] 1 All ER 38; [1974] 1 WLR 1445
1974	Litigation Practice	Casemap 1 Cites

Rees -v- Sinclair [1974] 1 NZLR 180
1974 Sir Thaddeus McCarthy, P	Commonwealth, Litigation Practice	Casemap 1 Citers
	(New Zealand) The court discussed the indemnity given to witnesses: "The protection should not be given any wider application than is absolutely necessary in the interests of the administration of justice …" and "In the interests of the judicial process a witness should not be exposed to the risk of having his or her evidence challenged in another process."

Wallersteiner -v- Moir [1974] 1 WLR 991
1974 Buckley LJ	Litigation Practice, Company	Casemap 1 Citers
	The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an abuse of process where a Plaintiff issues a Writ and then maintains the action in being, neither desiring nor intending to bring it to trial, but merely hoping to place a gag upon his critics. The court is cautious about making declarations on the basis of admissions or concessions.

Buswell -v- Inland Revenue Commissioners [1974] 1 WLR 1631
1974 CA Orr LJ, Russell and Stamp LJJ	Taxes Management, Litigation Practice	Casemap 1 Citers

EMI -v- Pandit [1975] 1 WLR 302
3 Dec 1974 ChD Templeman J	Litigation Practice	Casemap 1 Citers
	The making of an order allowing the plaintiff's to execute a search on the other party's premises is in effect part of the process of discovery. Templeman J discussed the making of such orders ex parte: "if it appears that the object of the plaintiffs' litigation will be unfairly and improperly frustrated by the very giving of the notice which is normally required to protect the defendant, there must be exceptional and emergency cases in which the Court can dispense with the notice and, either under power in the rules to dispense with notice or by the exercise of its inherent jurisdiction make such a limited Order, albeit ex paste, as will give the plaintiffs the relief which they would otherwise be unable to obtain. In the present case I am satisfied that, if notice were given to the defendant, that would almost certainly result in the immediate destruction of the articles and information to which the plaintiffs are entitled . . I think it right to stress that, in my judgment the kind of order which is sought now can only be justified by a very strong case on the evidence and can only be justified where the circumstance are exceptional to this extent, that it plainly appears that justice requires the intervention of the Court in the manner which is sought and without notice, otherwise the plaintiffs may substantially be deprived of a remedy . . it must be shown that irreparable harm will accrue, or that there is a high probability that irreparable harm may accrue to the plaintiffs, unless the particular form of relief now sought is granted to them".

Grant -v- Southwestern and County Properties Ltd [1975] Ch 185
1975 ChD Walton J	Litigation Practice	Casemap 1 Citers
	The court had to decide whether a tape recording fell within the expression "document" in the Rules of the Supreme Court. Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording was accordingly a document.

Camilla Cotton Oil Co –v-Granadex SA [1975] 1LLR 470
1975 CA Lord Denning MR	Litigation Practice	Casemap 1 Cites 1 Citers

Nippon Yusen Kaisha -v- Karageorgis [1975] 1 WLR 1093
1975 CA Lord Denning MR	Litigation Practice	Casemap 1 Citers
	The plaintiff company had chartered a ship to the defendants. A large sum was now claimed for hire, and a string prima facie case made out. The charterers could not be found but there was evidence of funds at a bank in London. An ex parte application to grant an injunction restraining the charterers from disposing of or removing from the jurisdiction any of the assets which were within the jurisdiction was refused. The company appealed. Held. The appeal succeeded. The court 'rediscovered' its ability to make interim asset freezing orders.

Husband's of Marchwood Ltd -v- Drummond Walker Developments Ltd [1975] 1 WLR 603
1975	Litigation Practice	1 Citers
	The object of order 24 rule 16 is not to punish the offender for his conduct, but to secure the fair trial of the action in accordance with the due process of the Court.

F Hoffmann La Roche & Co A G -v- Secretary of State for Trade and Industry [1975] AC 295
1975 HL Lord Diplock, Lord Reid, Lord Wilberforce	Administrative, Litigation Practice	Casemap 1 Citers
	The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages. Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant "cannot be compelled to give an undertaking but if he will not give it he will not get the injunction." The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified. Lord Diplock: "The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages." and "The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant's benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction."
	Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2)

Regina -v- Wandsworth County Court ex parte Wandsworth London Borough Council [1975] 1 WLR 1314
1975	Litigation Practice	Casemap 1 Citers
	Where the court grants a writ of possession requiring the bailiff to put the claimant into possession of land, in principle, the bailiff will remove all those who are on the relevant land, irrespective of whether or not they were parties to the action.

Wallersteiner -v- Moir (No 2) [1975] QB 373; [1975] 1 All ER 849; [1975] 2 WLR 389
1975 CA Buckley LJ, Scarman LJ, Denning LJ	Litigation Practice, Legal Aid, Company	Casemap 1 Cites 1 Citers
	The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder. Held: A minority shareholder bringing a derivative action on behalf of a company could obtain the authority of the court to sue as if he were a trustee suing on behalf of a fund, with the same entitlement to be indemnified out of the assets against his costs and any costs he may be ordered to pay to the other party. The court said that the minority shareholder could make a Beddoe application in the same way as a trustee and so secure an assurance that he would not be personally liable for any costs. Since he was asserting the company's cause of action on the company's behalf, the Legal Aid provisions prevented the grant of legal aid. Denning LJ said of someone bringing an action on behalf of the company that "the minority shareholder, being an agent acting on behalf of the company is entitled to be indemnified by the company against all costs and expenses reasonably incurred by him in the course of the agency. It is analogous to the indemnity to which a trustee is entitled from his cestui que trust who is sui juris." As to the position of a solicitor in litigation, he said: 'It may be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements; first in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment; secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court, with a duty to the court to ensure that his client's case which he must of course present and conduct with the utmost of care of his client's interests, is also presented and conducted with scrupulous fairness and integrity. A barrister has similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations.' Scarman LJ said: "The indemnity is a right distinct from the right of a successful litigant to his costs at the discretion of the trial judge; it is a right which springs from a combination of factors - the interest of the company and its shareholders, the relationship between the shareholder and the company, and the court's sanction (a better word would be 'permission') for the action to be brought at the company's expense. It is a full indemnity such as an agent has who incurs expense in the authorised business of his principal." Buckley LJ said: "[T]here are circumstances in which a party can embark on litigation with a confident expectation that he will be indemnified in some measure against costs. A trustee who properly and reasonably prosecutes or defends an action relating to his trust property or the execution of the trusts is entitled to be indemnified out of the trust property. An agent is entitled to be indemnified by his principal against costs incurred in consequence of carrying out the principal's instructions . . The next friend of an infant plaintiff is prima facie entitled to be indemnified against costs out of the infant's estate . . It seems to me that in a minority shareholder's action, properly and reasonably brought and prosecuted, it would normally be right that the company should be ordered to pay the plaintiff's costs so far as he does not recover them from any other party. In all the instances mentioned the right of the party seeking indemnity to be indemnified must depend on whether he has acted reasonably in bringing or defending the action, as the case may be: see, for example, as regards a trustee, In re Beddoe, Downes v Cottam [1893] 1 Ch 557. It is true that this right of a trustee, as well as that of an agent, has been treated as founded in contract. It would, I think, be difficult to imply a contract of indemnity between a company and one of its members. Nevertheless, where a shareholder has in good faith and on reasonable grounds sued as plaintiff in a minority shareholder's action, the benefit of which, if successful, will accrue to the company and only indirectly to the plaintiff as a member of the company, and which it would have been reasonable for an independent board of directors to bring in the company's name, it would, I think, clearly be a proper exercise of judicial discretion to order the company to pay the plaintiff's costs. This would extend to the plaintiff's costs down to judgment, if it would have been reasonable for an independent board exercising the standard of care which a prudent business man would exercise in his own affairs to continue the action to judgment. If, however, an independent board exercising that standard of care would have discontinued the action at an earlier stage, it is probable that the plaintiff should only be awarded his costs against the company down to that stage . . There is a well established practice in Chancery for a trustee who has it in mind to bring or defend an action in respect of his trust estate to apply to the court for directions: see In re Beddoe, Downes v Cottam [1893] 1 Ch. 557. If and so far as he is authorised to proceed in the action, the trustee's right to be indemnified in respect of his costs out of the trust property is secure. If he proceeds without the authority of an order of the court, he does so at his own risk as to costs. It seems to me that a similar practice could well be adopted in a minority shareholder's action." Buckley LJ also discussed the role of a legal adviser in litigation and the nature of a contingency fee, saying: "A contingency fee, that is, an arrangement under which the legal advisers of a litigant shall be remunerated only in the event of the litigant succeeding in recovering money or other property in the action, has hitherto always been regarded as illegal under English law on the ground that it involves maintenance of the action by the legal adviser. Moreover where, as is usual in such a case, the remuneration which the adviser is to receive is to be, or to be measured by, a proportion of the fund or of the value of the property recovered, the arrangement may fall within that particular class of maintenance called champerty . . It may, however, be worthwhile to indicate briefly the nature of the public policy question. It can, I think, be summarised in two statements. First, in litigation a professional lawyer's role is to advise his client with a clear eye and an unbiased judgment. Secondly, a solicitor retained to conduct litigation is not merely the agent and adviser to his client, but also an officer of the court with a duty to the court to ensure that his client's case, which he must, of course, present and conduct with the utmost care of his client's interests, is also presented and conducted with scrupulous fairness and integrity. A barrister owes similar obligations. A legal adviser who acquires a personal financial interest in the outcome of the litigation may obviously find himself in a situation in which that interest conflicts with those obligations."

Yat Tung Investment Co Ltd -v- Dao Heng Bank Ltd [1975] AC 581
1975 PC Morris of Borth-y-Guest, Cross of Chelsea, Kilbrandon LL	Estoppel, Litigation Practice	Casemap 1 Cites 1 Citers
	A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration that the sale had been a sham and a fraud. That allegation was dropped, and judgement entered for the bank. It then began a second action, the current one. The bank sought to restrain the second action, saying it was an abuse. Held: The issues in this action should have been raised in the first. There had been opportunity to raise the the issues as to incorrect accounting. Not having challenged those matters in the first action, and having suffered judgment, it would be wrong to allow a second action, and an estoppel by record arose. "it becomes an abuse of process to raise in subsequent proceedings matters which could and therefore should have been litigated in earlier proceedings." However, litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject of litigation before the court

Tiverton Estates Ltd -v- Wearwell Ltd [1975] Ch 146
1975 CA Lord Denning MR, Stamp LJ, Scarman LJ	Land, Contract, Litigation Practice	Casemap 1 Cites 1 Citers
	"subject to contract" proposals remain in negotiation until a formal contract is executed. Lord Denning MR said: "for over a hundred years, the courts have held that the effect of the words "subject to contract" is that the matter remains in negotiation until a formal contract is executed" It was vital that the meaning and effect of the phrase must not be diluted. As to the required memorandum, it must contain a recognition of the existence of the prior contract and must state its terms. Lord Denning MR said: "These courts are masters of their own procedure and can do what is right even though it is not contained in the rules." Stamp LJ said that a memorandum must, to satisfy the section, recognise the contract.
	Law of Property Act 1925 40

Greater London Council -v- Jenkins [1975] 1 WLR 155
1975	Litigation Practice, Landlord and Tenant	Casemap 1 Citers
	A landlord is entitled to use the summary proceedings under Order 113 if he can demonstrate his right to do so, and the court has no discretion to deny such use merely on the grounds that the proceedings are rapid and summary and that the defendants did not enter as squatters.

Bestobell -v- Bigg [1975] FSR 421
1975	Litigation Practice	Casemap 1 Cites 1 Citers
	The rule in Bonnard preventing prior restraint in defamation proceedings applies also in the context of an allegation of malicious falsehood.

Miliangos -v- George Frank (Textiles) Ltd [1975] QB 487
1975 CA Lord Denning MR	Litigation Practice	Casemap 1 Cites 1 Citers
	The court looked at what makes a case decided per incuriam: "a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision." (Lord Denning MR)

Consul Development Pty Ltd -v- DPC Estates Pty Ltd (1975) 132 CLR 373
1975 Gibbs J	Litigation Practice	Casemap 1 Citers
	Gibbs J: "The question whether the remedy which the person to whom the duty is owed may obtain against the person who has violated the duty is proprietary or personal may sometimes be one of some difficulty. In some cases the fiduciary has been declared a trustee of the property which he has gained by his breach; in others he has been called upon to account for his profits and sometimes the distinction between the two remedies has not, it appears, been kept clearly in mind."

Mothercare -v- Robson Books [1975] FSR 466
1975 Megarry VC	Litigation Practice	Casemap 1 Citers
	When the court has to decide whether there is a serious issue between the parties for the purposes of granting an injunction, what the court had to do was to consider the prospects of success and consider whether they existed either in substance or reality.

Associated Portland Cement Manufacturers Ltd -v- Teigland Shipping A/S (The Oakworth) [1975] 1 Ll Rep 581
1975	Litigation Practice	Casemap 1 Citers

Mareva Compania Naviera SA -v- International Bulkcarriers SA [1975] 2 Lloyd's Rep 509; [1980]1 All ER 213
1 Feb 1975 CA	Litigation Practice	Casemap 1 Citers
	An ex parte order was sought by the plaintiff to restrain the defendant dispersing his assets. Held. The court granted the ad personam order requested making use of the jurisdiction given to it by the 1925 Act: "A mandamus or an injunction may be granted or a receiver appointed by an interlocutory order of the court in all cases in which it shall appear to the court to be just or convenient." The order could be made even though it dealt with assets in which the plaintiff claimed no direct right.
	Supreme Court of Judicature (Consolidation) Act 1925 45(1)

American Cyanamid Co -v- Ethicon Ltd (1) [1975] 2 WLR 316; [1975] AC 396; [1975] UKHL 1
5 Feb 1975 HL Lord Diplock, Viscount Dilhorne, Lord Cross of Chelsea, Lord Salmon and Lord Edmund-Davies	Litigation Practice, Intellectual Property	1 Cites 1 Citers
	The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of Appeal. Held: The questions which applied when looking for an interim injunction in patent infringement cases were no different from those in other cases. The court must first look to the balance of convenience. There was no rule that the court must first look for the prospects of success of either party. The court must be satisfied the claim 'is not frivolous or vexatious; in other words, that there is a serious question to be tried'. Where there was any doubt about damages being adequate compensation for the grant or withholding of an injunction, the court should preserve the status quo. The judge's assessment of that balance of convenience was not to be disturbed.
	Link[s] omitted

Colledge -v- Crossley Times, 18 March 1975
18 Mar 1975 CA	Litigation Practice	Casemap 1 Citers
	The Master of the Rolls discussed undertakings given to support injunctions: ". that it was unfortunate that the undertaking in damages was not put into the original order. It was an automatic undertaking which was invariably inserted when an interim injunction was granted. If afterwards at the trial there was shown to be no right to the injunction the plaintiff would have to pay damages as the price of getting the interim injunction. Undoubtedly the failure to include the undertaking came within the slip rule. The undertaking should be inserted."

Anton Piller -v- Manufacturing Processes Ltd [1976] Ch 55; [1976] 1 All ER 779; [1975] EWCA Civ 12; [1976] 2 WLR 162; [1976] RPC 719; [1976] FSR 129
8 Dec 1975 CA Lord Denning MR, Ormrod LJ, Shaw LJ	Litigation Practice	Casemap 1 Cites 1 Citers
	The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search order (as opposed to a criminal search warrant), where the court had in effect ordered ex parte the defendant to allow the plaintiff entry to his premises to inspect documents. The plaintiff appealed against refusal of such an order. Held: The appeal succeeded, and the order made. This type of order requires an applicant to satisfy four essential pre-conditions: that there is an extremely strong prima facie case; that the damage which they will suffer will be serious; that there is clear evidence that the respondents have in their possession some damaging documents or other material; and that there is a real possibility that the material might be destroyed before any application inter partes could be brought. Lord Denning MR said: "Let me say at once that no court in this land has any power to issue a search warrant to enter a man's house so as to see if there are papers or documents there which are of an incriminating nature, whether libels or infringements of copyright or anything else of the kind. No constable or bailiff can knock at the door and demand entry so as to inspect papers or documents. The householder can shut the door in his face and say 'Get out'. That was established in the leading case of Entick v Carrington (1765) 2 Wils.K.B.275. None of us would wish to whittle down that principle in the slightest. But the order sought in this case is not a search warrant. It does not authorize the plaintiff’s solicitors or anyone else to enter the defendants’ premises against their will. It does not authorize the breaking down of any doors, nor the slipping in by a back door, nor getting in by an open door or window . . The plaintiffs must get the defendants’ permission. But it does do this: It brings pressure on the defendants to give permission. It does more. It actually orders them to give permission – with, I suppose, the result that if they do not give permission, they are guilty of contempt of court."
	Link[s] omitted

Re Golden Chemicals Limited [1976] Ch 300
1976 Brightman J	Litigation Practice	Casemap 1 Citers
	A Minister of the Crown need not exercise his own discretion personally, even when the exercise of his powers involves a serious invasion of a subject's civil rights.

Minnesota Mining & Manufacturing Co -v- Johnson & Johnson [1976] RPC 671
1976	Litigation Practice	1 Citers
	The court will normally only refuse a stay pending appeal against the award of an injunction if the successful injunctor is willing to give a cross-undertaking in damages should the appeal be successful

Regina -v- Greater London Council ex Parte Blackburn [1976] 1 WLR 550
1976	Litigation Practice	Casemap 1 Citers

Re Lord Cable [1976] 3 All ER 417
1976 Slade J	Litigation Practice	Casemap 1 Citers
	Slade J said: "I add one further observation in relation to the evidentiary position. American Cyanamid Co. v. Ethicon Ltd. may have led prospective plaintiffs to the belief, perhaps partially justified, that it is not necessary for them to adduce affidavit evidence in support of a motion for an interlocutory injunction of such a precise and compelling nature as might have been required before that decision. Nevertheless, in my judgment it is still necessary for any plaintiff who is seeking interlocutory relief to adduce sufficiently precise factual evidence to satisfy the court that he has a real prospect of succeeding in his claim for a permanent injunction at the trial. If the facts adduced by him in support of his motion do not by themselves suffice to satisfy the court as to this, he cannot in my judgment expect it to assist him by inventing hypotheses of fact on which he might have a real prospect of success."

The Eschersheim [1976] 1 WLR 430
1976 HL Lord Diplock	Litigation Practice	Casemap
	Where a statute was passed in order to give effect to an international convention, if the statute and the convention differ in their language, the statute should be construed in the same sense as the convention "if the words of the statute are reasonably capable of bearing that meaning".

Regina -v- Bloomsbury & Marylebone County Court ex parte Villerwest Limited [1976] 1 WLR 362
1976	Litigation Practice	Casemap 1 Citers

Senior -v- Holdsworth [1976] QB 23
1976 Lord Denning MR	Litigation Practice	Casemap 1 Citers
	A subpoena requiring the production of documents had been served. Held: A witness ought not to be required to comply with a letter of request if it appeared to the court “that the request is irrelevant, or fishing, or speculative, or oppressive".

Tetra Molectric Limited -v- Japan Imports Limited [1976] RCC 541
1976 CA Buckley LJ, Orr LJ, Sir John Pennycuick	Litigation Practice	Casemap 1 Citers
	The court had allowed another company to be added as respondent to an appeal by a plaintiff against the judge's decision against a patent's validity. "Sub-paragraph (ii) of paragraph (b) widens the discretion of the court to a great extent, for now the court may add any person such as is described in that sub-paragraph if the question or issue involved is one which in the opinion of the court it would be just and convenient to determine as between the applicant and the present party to the proceedings as well as between the parties to the proceedings themselves."
	Rules of eth Supreme Court O15 r6

Canada Enterprises Corp Ltd v Macnab Distilleries Ltd [1987] 1 WLR 813n
1976 CA	Litigation Practice	Casemap 1 Citers
	"inexpedient" in the rule, simply means unjust.
	RSC Order 47 R 1

Camilla Cotton Oil Co –v-Granadex SA [1976] 2LLR 10
1976 HL Lord Wilbeforce	Litigation Practice	Casemap 1 Citers
	The jurisdiction to gant a negative declaration was not as confined as suggested by Pickford LJ, but his words "warn us that we must apply some careful scrutiny"

Regina -v- A Circuit Judge (sitting at Norwich County Court) ex parte Wathen (1976) 33 P & CR 423
1976 QBD Watkins J	Litigation Practice, Landlord and Tenant	Casemap 1 Citers
	Lessors claimed for arrears of rent, forfeiture of the lease and possession of the premises. The lessee admitted the arrears, advanced no defence and did not seek an adjournment. The judge, of his own motion, adjourned the hearing because the lessee, although without means at the time, had an expectation of receiving certain monies under a trust of an uncertain amount at an uncertain date. The hearing was resumed at the adjourned date, and the judge adjourned it for a second time. The lessors applied for an order of mandamus requiring the judge to hear and determine the claim. Held: The judge had been entitled to adjourn the action under the section, on the first occasion, but not on the second. The word "shall" required the judge to proceed forthwith to judgment for a plaintiff who had without doubt established his claim to relief under the section. Nevertheless, the judge was entitled to adjourn the claim provided that he was acting "judicially". On the facts of that case, in adjourning the claim on the first occasion, the judge was acting judicially: "The view that I have formed is that, paying particular regard to section 191 of the County Courts Act 1959, the judge cannot be criticised for taking it into his own hands on the first occasion to adjourn the matter on the basis that he was not then in a position to be able to decide with any degree of accuracy the time which he would give to the lessee to fulfil the term relating to the rent, having regard to the additional factor that he could not impose a term of less than 28 days anyway" and "the allowance of time is a discretionary matter", although this did not diminish the force of the use of the word "shall" in the section. For this reason: "I do not believe that a judge can inevitably be criticised for not proceeding to judgment forthwith, for example, on the first occasion when the matter comes before him if something of materiality remains uncertain as a matter of evidence. To adjourn a case on virtually the same ground again is, however, I think impermissible. A judge, faced with the problems which confronted the judge here, should act strictly in accordance with the law as laid down in section 191 and give the plaintiff the relief which he seeks."
	County Courts Act 1959 191(1)

New Zealand Institute of Agriculture Science Inc -v- Ellesmere County [1976] 1 NZLR 630
1976 Cooke J	Litigation Practice, Commonwealth	Casemap 1 Citers
	(New Zealand High Court) Cooke J: "Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance."

Practice Direction (Judgments: Foreign Currency) [1976] 1 WLR 83
1976	Litigation Practice	Casemap 1 Citers

Glass (Cardiff) -v- Jardean Properties [1976] CLY 2151
1976	Litigation Practice	Casemap 1 Citers

Farrell -v- Alexander [1977] AC 59; [1976] UKHL 5; [1976] 2 All ER 721
24 Jun 1976 HL Lord Wilberforce	Litigation Practice	Casemap 1 Citers
	The House considered the construction of a consolidation Act. Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the consolidation Act is unclear, or cannot be resolved by classical methods of construction. Self-contained statutes, whether consolidating previous law or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot solve. Lord Wilberforce said: "self-contained statutes, whether consolidating previous law, or so doing with amendments, should be interpreted, if reasonably possible, without recourse to antecedents, and that the recourse should only be had when there is a real and substantial difficulty or ambiguity which classical methods of construction cannot resolve."
	Link[s] omitted

McPhee -v- Heatherwick 1977 SLT (Sh Ct) 46
1 Jul 1976 Sheriff Macphail	Scotland, Litigation Practice	Casemap
	(Glasgow Sheriff Court) The court asked whether, when a prior action had been disposed of by dismissal, it was or was not always open to a pursuer to raise a new action. Held: The defender's plea of res judicata was sustained.

James Buchanan & Company Ltd -v- Babco Forwarding and Shipping (UK) Ltd [1976] EWCA Civ 9; [1977] QB 208
2 Dec 1976 CA Lord Denning MR, Roskill LJ, Lawton LJ	Damages, Litigation Practice	Casemap 1 Cites 1 Citers
	A trailer full of whisky had been stolen. Four fifths of its retail value was excise duty. Because it was to have been exported, duty had not been paid. On the theft the owners had had to pay the duty. The owners sued the carriers for the loss, but the court had to decide the value of the cargo. Held: At common law the carriers would have to pay the full losses, but the 1965 Act imported the European Convention. Lord Denning discussed the principles applicable in interpreting international conventions. Lord Denning discussed the correct approach to interpretation of an international convention.
	Carriage of Goods by Road Act 1965
	Link[s] omitted

Suthendran -v- Immigration Appeal Tribunal [1977] AC 359; [1977] Imm AR 44; [1976] 3 All ER 611
1977 HL	Litigation Practice, Immigration	Casemap

Fitzleet Estates Ltd -v- Cherry [1977] 1 WLR 1345
1977 HL Lord Wilberforce, Lord Salmon and Lord Keith	Litigation Practice, Constitutional	1 Cites 1 Citers
	The House was invited to depart from its own precedent set eleven years before: (Lord Wilberforce) "There is therefore nothing left to the appellant but to contend - as he frankly does - that the 1965 decision is wrong. This contention means, when interpreted, that three or more of your Lordships ought to take the view which appealed then to the minority. My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view, which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate, two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it."

Riddick -v-Thames Board Mills Ltd [1977] 3 All ER 677; [1977] 3 WLR 63; [1977] QB 881
1977 CA Lord Denning MR, Stephenson LJ	Litigation Practice	Casemap 1 Citers
	An action was brought by a disgruntled former employee. He had been summarily dismissed and had been escorted from the premises of his employers. In the first action he claimed damages for wrongful arrest and false imprisonment based on the latter conduct. That action was settled on terms that included the withdrawal of the allegations of wrongful arrest and false imprisonment. The plaintiff then brought a second action for damages for defamation "flowing from the wrongful manner" of his dismissal. That action was struck out on the basis that it was in respect of the same matters that had been the subject of the first action. He then brought a third action, again for defamation, acting in person. This was based on an internal report to the defendant's chief personnel manager, made after his dismissal, which alleged that he had not been up to his job. This had come to the plaintiff's knowledge as a result of being disclosed in the earlier litigation. The employer objected to that use of the document. Held: The plaintiff should not have been permitted to make use of the memorandum disclosed in the earlier litigation to found his claim for defamation. It was an abuse of the court process. There was an implied understanding, or undertaking, that documents disclosed in court should not be used for any ulterior or collateral purpose. Lord Denning MR said: "The principle was stated in a work of the highest authority 93 years ago by Bray J., Bray on Discovery, 1st ed. (1885), p.238: 'A party who has obtained access to his adversary's documents under an order for production has no right to make their contents public or communicated them to any stranger to the suit:…nor to use them or copies of them for any collateral object… If necessary an undertaking to that effect will be made a condition of granting an order:…' Since that time such an undertaking has always been implied, as Jenkins J. said in Alterskye v. Scott [1948] 1 All E.R. 469, 471. A party who seeks discovery of documents gets it on condition that he will make use of them only for the purposes of that action, and no other purpose." Stephenson LJ said: "There may be cases in which a plaintiff would be justified in bringing an action on a document disclosed in an earlier action. I do not say that it could never be done without abusing the process of the court. But generally speaking it would be an abuse of its process and in the circumstances of this case the plaintiff's use of this memorandum is an improper use which the court should not countenance." Waller LJ said: "In my opinion it is highly desirable that there should be no discouragement to full and frank disclosure on discovery. If there be a risk that disclosures may produce new causes of action parties may be deterred from disclosing the document."

Goldsmith -v- Sperrings Ltd [1977] 1 WLR 478; [1977] 2 All ER 566
1977 CA Denning MR, Scarman LJ, Bridge LJ	Litigation Practice, Torts - Other	Casemap 1 Cites 1 Citers
	The plaintiff commenced proceedings for damages for libel and an injunction against the publishers, the editors and the main distributors of Private Eye. In addition, he issued writs against a large number of other wholesale and retail distributors of the paper for the same relief. Some of the distributors applied for an order that the actions against them should be stayed or dismissed as an abuse of process of the court on the ground that the plaintiff's purpose in pursuing the actions against them was not to protect his reputation but for the collateral purpose of destroying the paper by cutting off its retail outlets. Held: (Lord Denning MR dissenting) A court may prevent an abuse of process when that process is predominantly being used as a means of obtaining an advantage for which the proceedings were not intended. Lord Denning MR (dissenting) said: "In a civilised society, legal process is the machinery for keeping and doing justice. It can be used properly or it can be abused. It is used properly when it is invoked for the vindication of men's rights or the enforcement of just claims. It is abused when it is diverted from its true course so as to serve extortion or oppression: or to exert pressure so as to achieve an improper end. When [the process of the court] is so abused, it is a tort, a wrong known to the law. The judges can and will intervene to stop it. They will stay the legal process, it they can, before any harm is done. It they cannot stop it in time, and harm is done, they will give damages against the wrongdoer . . Sometimes abuse can be shown by the very steps being taken in the courts . . At other times the abuse can only be shown by extrinsic evidence that the legal process is being used for and improper purpose. On the face of it, in any particular case, the legal process may appear to be entirely proper and correct. What may make it wrongful is the purpose for which it is used." and "A criminal libel is so serious that the offender should be punished for it by the state itself. He should either be sent to prison or made to pay a fine to the state itself. Whereas a civil libel does not come up to that degree of enormity." and "The distributors of newspapers and periodicals are nothing more than conduit pipes in the channel of distribution. They have nothing whatever to do with the contents. They do not read them – there is no time to do so. Common sense and fairness require that no subordinate distributor – from top to bottom – should be held liable for a libel contained in it unless he knew or ought to have known that the newspaper or periodical contained a libel on the plaintiff himself: that is to say, that it contained a libel on the plaintiff which could not be justified or excused: and I should have thought that it was for the plaintiff to prove this. And the Restatement bears this out: see Restatement, Torts 1965 Supplement, section 581, Comment. I have read every case cited in the textbooks on this subject and I find that a subordinate distributor has never been held liable to a plaintiff except when prior knowledge of the libel has been brought home to him." Scarman LJ said: "to pass judgment on the respondent's purpose upon a preliminary application, [to] prevent him bringing to trial actions in each of which . . he is pleading a cause of action recognised by the law. It is right, therefore, that to obtain before trial the summary arrest of a plaintiff's proceedings as an abuse of the process of the court, the task of satisfying the court that a stay should be imposed is, and should be seen to be, a heavy one. Unless the court is satisfied, a stay is a denial of justice by the court – a situation totally intolerable . . the defendants have to show that the plaintiff seeks a collateral advantage for himself beyond what the law offers. In a phrase, the plaintiff's purpose has to be shown to be not that which the law by granting a remedy offers to fulfil, but one which the law does not recognise as a legitimate use of the remedy sought, see In re Marjory." Bridge LJ said that, for Lord Evershed's general rule in Majory, the phrase "collateral advantage" cannot embrace every advantage sought or obtained by a litigant which is beyond the court's power to grant him. One can certainly go so far as to say that, when a litigant sues to redress a grievance, no object which he may seek to obtain can be condemned as a collateral advantage if it is reasonably related to the provision of some form of redress for that grievance. On the other hand, if it can be shown that a litigant is pursuing an ulterior purpose unrelated to the subject matter of the litigation and that, but for the ulterior purpose, he would not commence proceedings at all, that is an abuse of process.

Denne -v- Denne (1977) CAT 4743
1977	Costs, Litigation Practice	Casemap 1 Citers
	Where the parties, having settled their case, agreed for a costs judge to fix the costs, there was no appeal from his judgment.

Birkett -v- James [1978] AC 297; [1977] 2 All ER 801; [1977] 3 WLR 38
1977 HL Lord Diplock	Litigation Practice	Casemap 1 Cites 1 Citers
	The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and (b) such delay has given rise to a substantial risk that it is not possible to have a fair trial of the issues or is such as is likely to cause or to have caused prejudice to the defendants. In addition the court has a general inherent power to strike out an action in cases of a deliberate failure to comply with a peremptory order of the court. Again, however, the power is a discretionary one albeit a narrowly circumscribed one. It does not matter whether it is the plaintiff or his lawyers at fault, the effect on the defendant is the same. Lord Diplock said: "delay will give rise to a substantial risk that it is not possible to have a fair trial of the issues in the action or is such as is likely to cause or to have caused serious prejudice to the defendants either as between themselves and the plaintiff or between each other or between them and a third party".

Herbert Berry Associates Ltd -v- Inland Revenue Commissioners; re Herbert Berry [1977] 1 WLR 1437; [1977] 1 All ER 161
1977 HL Lord Simon of Glaisdale, Lord Russell	Litigation Practice, Insolvency, Landlord and Tenant	Casemap 1 Cites 1 Citers
	The principle to the effect that the court should exercise its discretion to restrain a distress levied by a landlord before the commencement of a winding-up only where there were special circumstances rendering it inequitable that he should be permitted to do so, applies also to a distress levied by the Crown under a statutory duty. Lord Russell: "Finally section 325 cannot avail the liquidator: .... It was suggested that distraint was a form of execution; but Parliament has quite clearly distinguished distress and execution: see section 228 of the 1948 Act" and "So far as concerns section 325 I cannot conceive a more deliberate restriction to two only of methods of proceeding - I use the word in a non-technical sense - against the property of a company." S61 TMA 1970 and s319 CA 1948 could quite easily sit together. Section 61 imposes on the collector a statutory duty to distrain. Under section 319(7), a distraint (even if completed by sale) within 3 months of the winding-up order charges the distrained goods or their proceeds of sale with the preferential debts. Subject to that, and the discretion of the court to restrain completion of an uncompleted distress, the distrainor keeps the good distrained. Accordingly, in a voluntary winding-up, the distraint, even if incomplete, was permitted to disturb the pari passu distribution of preferential debts. The distrained assets are not assets of the company available for distribution within sections 302 or 319(5). There was a need for a lis to support an application for an asset freezing injunction. "The primary sense of action as a term of legal act is the invocation of the jurisdiction of the court by writ."
	Companies Act 1948 325 - Taxes Management Act 1970 61

Fulham (orse Fullam) -v- Newcastle Chronicle and Journal Ltd and Another [1977] 1 WLR 651
1977 CA Lord Denning MR, Scarman LJ	Litigation Practice, Defamation	Casemap 1 Citers
	A local newspaper circulating in Teesside, where the claimant had been appointed deputy headmaster of a school, published an article in 1973 saying of the claimant that he was a former Roman Catholic priest who had left his parish in the Salford diocese and later married and it was claimed of him that he "went off very suddenly from the parish where he was a curate about seven years ago". In fact he had given up the priesthood in 1962, married in 1964, and his wife had a child in 1965. Held: Only a reader with special knowledge of the facts, either of the date of the claimant's marriage or of that of the birth of his child, could derive an adverse impression from the article and that it was unlikely that readers with such special knowledge lived in the area of the newspaper's circulation. That being so, the claimant was bound to identify readers whom he alleged knew of those facts. Scarman LJ said that sometimes facts relied upon to support an innuendo may be sufficiently widely known to enable the claimant to rely on a presumption or inference that some readers will have known them, and "there may well be cases in which it would not be necessary to plead more than the fact of publication by a newspaper and the extrinsic circumstances, leaving it to be inferred that there would be readers with knowledge of the facts". Lord Denning MR stated that it was "just possible" that someone "had jumped to the conclusion that before he left the Salford diocese, and while still a priest, he [the claimant] had married and fathered a child. But such a person would be so rare and so exceptional that the case on legal innuendo would not stand a chance unless that person was called".

Rio Tinto Zinc Corporation -v- Westinghouse Electric Corporation, Re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 (No 2) [1977] 3 All ER 717; [1978] AC 547
1977 HL Lord Denning, Lord Diplock, Roskill L	Litigation Practice	Casemap 1 Cites 1 Citers
	The court considered a claim that a party was not compelled to give evidence where it might incriminate him: "No one is bound to furnish information against himself. It [the common law] says: 'If a witness claims the protection of the court, on the ground that the answer would tend to incriminate himself and there appears reasonable ground to believe that it would do so, he is not compellable to answer." and "once it appears that a witness is at risk, then "great latitude should be allowed to him in judging for himself the effect of any particular question": see Reg. v. Boyes (1861) 1 B. & S. 311, 330. It may only be one link in the chain, or only corroborative of existing material, but still he is not bound to answer if he believes on reasonable grounds that it could be used against him. It is not necessary for him to show that proceedings are likely to be taken against him, or would probably be taken against him. It may be improbable that they will be taken, but nevertheless, if there is some risk of their being taken - a real and appreciable risk - as distinct from a remote or insubstantial risk, then he should not be made to answer or to disclose the documents." Lord Diplock said: "Classes of documents provided the description of the class is sufficiently clear, may be required to be produced on subpoena duces tecum." Roskill LJ added: "It cannot, I think, be right in these cases for the court to attempt a quantitive assessment of the probability one way or the other of the risk of proceedings ultimately being taken, and then to seek to draw the line, one way where the probabilities in the view of the court are thought to be more or less evenly balanced and the other where the balance is more disparate. It is not for the court to resolve problems of this kind by calculating odds. I think that the right question is to ask that posed by Shaw LJ on Friday afternoon. Can exposure to the risk of penalties (or in other cases to the risk of prosecution for a criminal offence) be regarded as so far beyond the bounds of reason as to be no more than a fanciful possibility?"

Woodward -v- Hutchins [1977] 2 All ER 751; [1977 1 WLR 760
1977 CA Lord Denning MR, Bridge LJ	Litigation Practice, Media, Information	Casemap 1 Citers
	An injunction was sought to restrain publication of confidential information about a well-known pop group, starring Tom Jones and Engelbert Humperdinck. As the group's press agent, the defendant's role had been to see that the group received favourable publicity. However, after parting company, amicably, with the group, the defendant disclosed "no doubt, for a very considerable reward" to the Daily Mirror "secrets" about the group, including episodes of allegedly discreditable nature involving drink, sex and other matters. Held: (ex tempore) The injunction was discharged. The group had sought publicity, giving one view of themselves. Lord Denning MR: 'If a group of this kind seek publicity which is to their advantage, it seems to me that they cannot complain if a servant or employee of theirs afterwards discloses the truth about them. If the image which they fostered was not a true image, it is in the public interest that it should be corrected. In these cases of confidentaial information it is a question of balancing the public interest in maintaining the confidence agaiinst the public nterest in knowing the truth." Bridge LJ: "It seems to me that those who seek and welcome publicity of every kind bearing upon their private lives so long as it shows them in a favourable light are in no position to complain of an invasion of their privacy which shows them in an unfavourable light."

Metzger -v- Department of Social Security [1977] 3 All ER 444
1977 Megarry VC	Litigation Practice	Casemap 1 Citers
	A court's declaration should constitute only what it has found after proper argument.

The Ampthill Peerage Case [1977] AC 547
1977 HL Lord Wilberforce, Lord Simon of Glaisdale	Litigation Practice, Children	Casemap 1 Citers
	There was a dispute about the legitimacy of an heir to the title. New evidence had been discovered after the trial. Held: The House considered whether a new trial of an action might be ordered after discovery of new evidence: "The law knows, and we all know, that sometimes fresh material may be found, which perhaps might lead to a different result, but, in the interests of peace, certainty and security it prevents further enquiry. It is said that in doing this, the law is preferring justice to truth. That may be so: these values cannot always coincide. The law does its best to reduce the gap. But there are cases where the certainty of justice prevails over the possibility of truth . . and these are cases where the law insists on finality." However: "For a policy of closure to be compatible with justice, it must be attended with safeguards: so the law allows appeals: so the law, exceptionally, allows appeals out of time, so the law still more exceptionally allows judgments to be attacked on the ground of fraud." Having a particular status in law means "the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities." (Lord Simon of Glaisdale) Lord Wilberforce considered the status of legitimacy: "There can hardly be anything of greater concern to a person than his status as the legitimate child of his parents: denial of it, or doubts as to it, may affect his reputation, his standing in the world, his admission into a vocation, or a profession, or into social organisations, his succession to property, his succession to a title. It is vitally necessary that the law should provide a means for any doubts which may be raised to be resolved, and resolved at a time when witnesses and records are available. It is vitally necessary that any such doubts once disposed of should be resolved once and for all and that they should not be capable of being reopened whenever, allegedly, some new material is brought to light which might have borne upon the question."

Gleeson -v- J Wippell & Co Ltd [1977] 1 WLR 510
1977 ChD Sir Robert Megarry VC	Litigation Practice	Casemap 1 Citers
	The court considered the circumstances giving rise to a plea of res judicata, and proposed a test of privity in cases which did not fall into any recognised category. "Second, it seems to me that the sub-stratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that having due regard to the subject matter in dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in the proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest". Thus in relation to trust property I think there will normally be a sufficient privity between the trustees and their beneficiaries to make a decision that is binding on the trustees also binding on the beneficiaries, and vice versa." " but "Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicion. A defendant ought to be able to put his own defence in his own way and to call his own evidence."

Pearson -v- Naydler [1977] 1 WLR 899; [1977] 3 All ER 531
1977 Megarry V-C	Costs, Litigation Practice	Casemap 1 Citers
	That the staute required it to be likely that a company might find it difficult to pay costs before allowing a requirement for security for costs, indicated that an order may be expected to cause difficulty. However the court will not allow an impoverished company to use its inability to pay costs as a weapon against a more prosperous company.

Rustenburg -v- PanAm [1977] 1 Lloyd's Rep 564
1977 Ackner J	Litigation Practice	1 Citers
	Theft, was alleged against persons who were not party to the action. The court considered whether the allegation should be allowed to go ahead to trial without them having opportunity to take part.

Ansah -v- Ansah [1977] Fam 138
1977 CA Ormrod LJ, Stamp LJ and Sir John Pennycuick	Family, Litigation Practice	Casemap 1 Citers
	Ormrod LJ: "Orders made ex parte are anomalies in our system of justice which generally demands service or notice of the proposed proceedings on the opposite party: see Craig v Karssen [1943] KB 256, 262. Nevertheless, the power of the court to intervene immediately and without notice in proper cases is essential to the administration of justice. But this power must be used with great caution and only in circumstances in which it is really necessary to act immediately." Such circumstances tend to occur more frequently in family disputes than in other types of litigation: "but even in such cases the court should only act ex parte in an emergency when the interests of justice or the protection of the applicant or a child clearly demands immediate intervention by the court. Such cases should be extremely rare, since any urgent application can be heard inter partes on two days' notice to the other side… Circumstances, of course, may arise when prior notice cannot be given to the side; for example, cases where … a spouse, usually the wife, is so frightened of the other spouse that some protection must be provided against a violent response to service of proceedings, but the court must be fairly satisfied that such protection is necessary."

D -v- National Society for the Prevention of Cruelty to Children [1978] AC 171; [1977] 2 WLR 201; [1977] 1 All ER 589; [1977] UKHL 1
2 Feb 1977 HL Lord Simon of Glaisdale, Lord Diplock, Lord Hailsham of St. Marylebone	Defamation, Litigation Practice	Casemap 1 Cites 1 Citers
	Immunity from disclosure of their identity should be given to those who gave information about neglect or ill treatment of children to a local authority or the NSPCC to that which the law allowed to police informers. Lord Simon of Glaisdale said: "I cannot leave this particular class of relevant evidence withheld from the court without noting, in view of an argument for the respondent, that the rule can operate to the advantage of the untruthful or malicious or revengeful or self-interested or even demented police informant as much as of one who brings information from a high-minded sense of civic duty. Experience seems to have shown that though the resulting immunity from disclosure can be abused the balance of public advantage lies in generally respecting it." Lord Diplock explained the rationale of the rule in Marks v Beyfus as being plain: if the identity of informers were too readily liable to be disclosed in a court of law the sources of information would dry up and the police would be hindered in their duty of preventing and detecting crime. Lord Hailsham of St. Marylebone said: "The categories of public interest are not closed, and must alter from time to time whether by restriction or extension as social conditions and social legislation develop".
	Link[s] omitted

In re Westinghouse Uranium Contract [1978] AC 547; [1978] 1 All ER 434
1978 HL Lord Wilberforce, Lord Fraser	Litigation Practice	Casemap 1 Cites 1 Citers
	“The fact, if it be so, that evidence so obtained may be used in other proceedings and indeed may be central in those proceedings is no reason for refusing to allow it to be requested” Lord Fraser said: “in judging the nature of the letters rogatory as a whole in the court must look at them in the unamended form in which they were received by the American Court” A 'fishing expedition' is clearly impermissible in an application of request under the Act. The court supported the distinction between "a process by way of discovery and testimony for that purpose" and "testimony for the trial itself": "which it is in fact is not to be determined by the drafting of Westinghouse’s lawyers but objectively by the nature of the testimony sought. The fact that any evidence obtained is intended to be put in at the trial is quite consistent with the inquiry extending (impermissibly) to trains of inquiry which might produce such evidence."
	Evidence (Proceedings In Other Jurisdictions) Act 1975

Transmountana Armadora -v- Atlantic Shipping [1978] 1 Ll R 391
1978 Donaldson J	Litigation Practice, Arbitration	Casemap
	Donaldson J discussed the nature of a sealed offer in arbitration proceedings: "Although the respondents' offer of settlement has been referred to as an 'open offer', this is a misnomer. Offers of settlement in arbitral proceedings can be of three kinds, namely, 'without prejudice', 'sealed' and 'open'. A 'without prejudice' offer can never be referred to by either party at any stage of the proceedings, because it is in the public interest that there should be a procedure whereby the parties can discuss their differences freely and frankly and make offers of settlement without fear of being embarrassed by these exchanges if, unhappily, they do not lead to a settlement. A 'sealed offer' is the arbitral equivalent of making a payment into Court in settlement of the litigation or of particular causes of action in that litigation. Neither the fact, nor the amount, of such a payment into Court can be revealed to the Judge trying the case until he has given judgment on all matters other than costs. As it is customary for an award to deal at one and the same time both with the parties' claims and with the question of costs, the existence of a sealed offer has to be brought to the attention of the arbitrator before he has reached a decision. However, it should remain sealed at that stage and it would be wholly improper for the arbitrator to look at it before he has reached a final decision on the matters in dispute other than as to costs, or to revise that decision in the light of the terms of the sealed offer when he sees them."

Cretanor Maritime Co Ltd -v- Irish Marine Management Ltd [1978] 1 WLR 966; [1978] 3 All ER 164; (1978) 1 Lloyds Rep 425
1978 CA Buckley LJ	Litigation Practice	Casemap 1 Citers
	A freezing order is relief in personam and creates no proprietary rights in the assets from time to time subject to it. Buckley LJ said that where an injunction required assets up to a stated value to be kept within the jurisdiction: "There must always, in theory at least, be a possibility that the charterers may at some time have assets in excess of that value within the jurisdiction, in which event they would be free to remove from the jurisdiction at their choice any asset representing the excess or part of it." A court may also intervene when such an injunction causes real and unwarranted harm either to a party or to a stranger to the suit.

Rasu Maritima -v- Pertamina [1978] QB 644
1978 CA Lord Denning MR	Litigation Practice	Casemap 1 Citers
	Foreign attachment as an interlocutory process is the origin of the Mareva injunction

Stock -v- Frank Jones (Tipton) Ltd [1978] 1 WLR 231; [1978] 1 All ER 948
1978 HL Lord Simon of Glaisdale, Lord Scarman, Viscount Dilhorne	Litigation Practice	Casemap 1 Citers
	Where the words of a statute are clear, it is not open to the court to limit, change or disregard that meaning on the ground that the result of the legislation as drafted would be anomalous or absurd. Lord Simon of Glaisdale said as to an argument based on the anomaly of the result of a statutory interpretation: "A court would only be justified in departing from the plain words of the statute were it satisfied that: (1) there is clear and gross balance of anomaly; (2) Parliament, the legislative promoters and the draftsman could not have envisaged such an anomaly, could not have been prepared to accept it in the interests of a supervening legislative objective; (3) the anomaly can be obviated without detriment to the legislative objective; (4) the language of the statute is susceptible of the modification required to obviate the anomaly." and "But it is essential to bear in mind what the court is doing. It is not declaring Parliament has said X, but it obviously meant Y, so we will take Y as the effect of the statute. Nor is it declaring Parliament has said X having situation A in mind, but if Parliament had had our own forensic situation B in mind, the legislative objective indicates that it would have said Y. So we will take Y as the effect of the statute as regards B. What the court is declaring is Parliament has used words which are capable of meaning either X or Y, although X may be the primary natural and ordinary meaning of the words, the purpose of the provision shows that the secondary sense, Y, should be given to the words. So, too, when X produces injustice, absurdity, anomaly or contradiction. The final task of construction is still, as always, to ascertain the meaning of what the draftsman has said rather than to ascertain what the draftsman meant to say. But if the draftsmanship is correct, these should coincide, so that if the words are capable of more than one meaning it is a perfectly legitimate intermediate step in construction to choose between potential meanings by various tests (statutory objective, justice, anomaly, etc) which throw light on what the draftsman meant to say." Lord Scarman said: "Mr. Yorke for the appellants sought to give the words a meaning other than their plain meaning by drawing attention to what he called the "anomalies" which would result from giving effect to the words used by Parliament. If the words used be plain, this is, I think, an illegitimate method of statutory interpretation unless it can be demonstrated that the anomalies are such that they produce an absurdity which Parliament could not have intended, or destroy the remedy established by Parliament to deal with the mischief which the Act is designed to combat . . If the words used by Parliament are plain, there is no room for the "anomalies" test, unless the consequences are so absurd that, without going outside the statute, one can see that Parliament must have made a drafting mistake." Viscount Dilhorne said: "It is now fashionable to talk of a purposive construction of a statute, but it has been recognised since the 17th century that it is the task of the judiciary in interpreting an Act to seek to interpret it "according to the intent of them that made it" (Coke 4 Inst. 330). If it were the case that it appeared that an Act might have been better drafted, or that amendment to it might be less productive of anomalies, it is not open to the court to remedy the defect. That must be left to the Legislature. The appellants contend that in view of the anomalies which they say would result from the interpretation the respondent seeks to have placed on the paragraph, to have paragraph 8 (2) read as if it said: "who also took part and at the date of the dismissal were taking part in that action." As Stephenson L.J. said in the Court of Appeal, the paragraph does not so provide. "It is a strong thing to read into an Act of Parliament words which are not there, and in the absence of clear necessity it is a wrong thing to do" said Lord Mersey in Thompson v. Goold & Co. [1910] A.C. 409, 420. "we are not entitled to read words into an Act of Parliament unless clear reason for it is to be found within the four corners of the Act itself" Said Lord Loreburn L.C. in Vickers, Sons & Maxim Ltd. v. Evans [1910] A.C. 444, 445. . . The existence of anomalies, if they exist, cannot limit the meaning to be attached to clear language in a statute."

Gouriet -v- Union of Post Office Workers [1978] AC 435; [1977] UKHL 5; [1977] 3 All ER 70
1978 HL Lord Wilberforce, Lord Diplock	Employment, Litigation Practice
	The claimant sought an injunction to prevent the respondents calling on its members to boycott of mail to South Africa. The respondents challenged the ability of the court to make such an order. Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers to grant interlocutory injunctions whenever they thought it convenient to do so. As to the exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal law, there must be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area. Lord Diplock: "Authorities about the jurisdiction of the courts to grant declaratory relief are legion. The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used …. Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights. The only kind of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event . . . But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not of anyone else." As to the right to bring private prosecutions, they are "a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law." Lord Wilberforce noted that the right to bring a private prosecution was "a valuable constitutional safeguard against inertia or partiality on the part of authority."
	Supreme Court of Judicature (Consolidation) Act 1925
	Link[s] omitted

B -v- B [1978] 3 WLR 624; [1978] Fam181
1978 Dunn J	Litigation Practice, Family	Casemap 1 Citers
	Whilst a party must disclose all documents in his possession, custody or power the court has a discretion whether to order inspection. "Custody" in RSC Ord 24 was held "to refer to documents which are in the physical holding of a party but not in his personal capacity, rather qua company director/agent or similarly".

Rasu Maritima SA -v- Perusahaan (the Pertamina) [1978] 1 QB 644
1978 CA Lord Denning MR	Litigation Practice	Casemap 1 Cites 1 Citers
	Section 45 of the 1925 Act gives the court a very wide discretion to grant an injunction.
	Supreme Court of Judicature (Consolidation) Act 1925 45

Chocoladefabriken Lindt & Sprungli AG and another -v- The Nestlé Co Ltd [1978] RPC 287
1978 Megarry V-C	Litigation Practice	1 Citers
	Megarry V-C said that the mere failure to use the expression 'without prejudice' is not decisive of whether the letter is such. The question is whether the letters were written in an attempt to compromise actual or pending litigation and, if so, whether it can be inferred from their terms and their whole context that they contained an offer in settlement for which the party who made the offer can claim privilege which prevents the acknowledgments from being relied upon for the purposes of the Act. Megarry V-C said: "From the authorities put before me by Mr Prescott, it seems plain that the courts favour the protection of discussions which take place between actual or prospective litigants with a view to avoiding the expense and burden of litigation, and are very ready to hold that discussions made with this purpose are inadmissible in evidence. Men ought to be able to attempt to "buy their peace" without prejudicing their positions if the attempt fails and hostilities break out or continue. The mere failure to use the expression "without prejudice" does not conclude the matter. The question is whether there is an attempt to compromise actual or impending litigation, and whether from the circumstances the court can infer that the attempt was in fact to be covered by the "without prejudice" doctrine."

B-v- B (Matrimonial Proceedings: Discovery) [1978] Fam 181
1978 Dunn LJ	Family, Litigation Practice	Casemap 1 Citers
	The wife applied for ancillary relief, and sought disclosure from a third party. Held: "It is another feature of such proceedings that one party, usually the wife, is in a situation quite different from that of ordinary litigants. In general terms, she may know more than anyone else about the husband's financial position … She may … know, from conversations with the husband in the privacy of the matrimonial home, the general sources of his wealth and how he is able to maintain the standard of living that he does. But she is unlikely to know the details of such sources or precise figures, and it is for this reason that discovery now plays such an important part in financial proceedings in the Family Division. Applications for such discovery cannot be described as "fishing" for information, as they might be in other divisions. The wife is entitled to go "fishing" in the Family Division within the limits of the law and practice."

James Buchanan and Co Ltd -v- Babco Forwarding and Shipping (UK) Ltd [1978] AC 141
1978 HL Lord Wilberforce, Lord Salmon, Lord Dilhorne	Litigation Practice	Casemap 1 Cites 1 Citers
	A consignment of whisky was stolen whilst on consignemt from a bonded warehouse under CMR terms for Teheran. In bond, it was worth £7,000, and on export no excise duty was to be paid. Being stolen in the course of transit, excise duty of £30,000 became payable. The plaintiffs claimed to recover the value including the duty, under Article 23.2 of the CMR. Held: The liability to excise duty constituted 'other charges' under Article 23.4. The English text of the convention was incorporated through a schedule. A parallel Fench text had equal authenticity. The process of statutory interpretation required the court directly to interpret the English text of the convention while recognising that another authentic text existed. The court could interpret the statute on broad principles of general acceptation, assisted if need be by reference to the French text, without the need for a preliminary test of ambiguity. Lord Wilberforce said that an international convention should be interpreted: 'unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.'
	Customs and Excise Act 1952 85

Notham -v- London Borough of Barnet [1978] 1 All ER 1243
1978 CA Lord Denning MR	Litigation Practice	1 Citers
	The purposive approach to the interpretation of statutes will "promote the general legislative purpose underlying the provisions"

Smith -v- Inner London Education Authority [1978] 1 All ER 411
1978 CA Lord Denning MR, Browne LJ	Litigation Practice	Casemap 1 Cites 1 Citers
	Lord Denning MR doubted the applicability of the criteria in American Cyanamid to public law proceedings. It is appropriate at the interface of public law and private law for the public interest to be taken into account as one of the factors in the balance of convenience. Browne LJ said: "where a defendant is a public authority performing duties to the public one must look at the balance of convenience more widely, and take into account the interests of the public in general to whom these duties are owed. I think this is an example of the "special factors" affecting the balance of convenience which are referred to by Lord Diplock in American Cynamid Co v. Ethicon Ltd [1975] 1 All ER 504 at 511, [1975] AC 396 at 408."

Loose -v- Williamson [1978] 3 All ER 89; [1978] 1 WLR 639
1978	Litigation Practice	Casemap 1 Cites

Mediterranea Reffineria Siciliana Petroli SpA -v- Mabanaft GmbH Court of Appeal transcript 816
2 Jan 1978 CA Templeman LJ	Litigation Practice, Equity	Casemap 1 Citers
	The plaintiff sought orders to assist it in tracing the product of a cargo of oil, delivery of which was alleged to have been obtained from the plaintiff without the production of bills of lading, Mr. Justice Mocatta had made a sweeping order requiring directors and an employee of the defendant company to make full disclosure of certain specified facts on affidavits and directed that one of them should file an affidavit of documents. The defendant appealed. Held. The appeal failed. Templeman LJ said: "The court of equity has never hesitated to use the strongest power to protect and preserve a trust fund in interlocutory proceedings on the basis that, if the trust fund disappears by the time the action comes to trial, equity will have been invoked in vain."

Davis -v- Johnson [1979] AC 264; [1978] 1 All ER 1132; [1978] UKHL 1; [1978] 2 WLR 553
2 Jan 1978 HL Lord Diplock, Viscount Dilhorne, Lord Kilbrandon, Lord Salmon, Lord Scarman	Litigation Practice, Family	Casemap 1 Cites 1 Citers
	The court were asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent. Held: The operation of the doctrine of precedent in the Court of Appeal so far as civil matters were concerned had been "clear and unassailable" for more than 30 years. As to Young v Bristol Aeroplane: "The rule as expounded in the Bristol Aeroplane case was not new in 1944. It had been acted upon on numerous occasions and had, as recently as the previous year, received the express confirmation of this House of Viscount Simon LC, with whose speech Lord Atkin agreed: see Perrin –v- Morgan .... Although prior to 1944 there had been an occasional deviation from the rule, which was why a court of six was brought together to consider it, there has been none since. It has been uniformly acted upon by the Court of Appeal and re-affirmed, notably by a Court of Appeal of five, of which Lord Denning as Denning LJ was a member, in Morelle –v- Wakeling .... The rule was also been uniformly accepted by this House as being correct. Because until recently it has never been questioned, the acceptance of the rule has generally been tacit in the course of recounting the circumstances which have rendered necessary an appeal to your Lordships' House." The House re-affirmed the rules of stare decisis. As to whether it was correct to look to debates in Parliament: (Lord Scarman) "There are two good reasons why the courts should refuse to have regard to what is said in Parliament or by Ministers as aids to the interpretations of a statute. First, such material is an unreliable guide to the meaning of what is enacted. It promotes confusion not clarity... Secondly, counsel are not permitted to refer to Hansard in argument. So long as this rule is maintained by Parliament (it is not the creation of the judges) it must be wrong for the judge to make any judicial use of proceedings in Parliament for the purpose of interpreting statutes."
	Domestic Violence and Matrimonial Proceedings Act 1976
	Link[s] omitted

London & County Securities Ltd -v- Caplin Unreported, 26 May 1978
26 May 1978 ChD Templeman J	Litigation Practice	Casemap 1 Citers
	The court made a Mareva order with ancillary disclosure orders for the purpose of enabling the plaintiffs to trace property acquired by the defendant and so take steps to seize that property if it derived from their assets.

Nea Karteria Maritime Co Ltd -v- Atlantic & Great Lakes Steamship Corporation (No 2) [1981] Comm LR 138
11 Dec 1978 Mustill J	Litigation Practice, Legal Professions	Casemap 1 Cites 1 Citers
	The court considered disclosure of a legally privileged note of an interview: "I believe that the principle underlying the rule of practice exemplified by Burnell v British Transport Commission is that, where a party is deploying in court material which would otherwise be privileged, the opposite party and the court must have an opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood." and "Where a person is deploying in court material which would otherwise be privileged, the opposite party and the court must have the opportunity of satisfying themselves that what the party has chosen to release from privilege represents the whole of the material relevant to the issue in question. To allow an individual item to be plucked out of context would be to risk injustice through its real weight or meaning being misunderstood. . . I would describe that as the cherry picking aspect." and "The key word here is 'deploying'. A mere reference to a privileged document in an affidavit does not of itself amount to a waiver of privilege, and this is so even if the document referred to is being relied on for some purpose, for reliance in itself is said not to be the test. Instead, the test is whether the contents of the document are being relied on, rather than its effect. The problem is acute in cases where the maker of an affidavit or witness statement has to give details of the source of his information and belief, in order to comply with the rules of admissibility of such affidavit or witness statement. Provided that the maker does not quote the contents, or summarise them, but simply refers to the document's effect, there is apparently no waiver of privilege. This benevolent view has not been extended to the case where the maker refers to the document in order to comply with the party's need to give full and frank disclosure, eg on a without notice (ex parte) application."

Bastick -v- James Lane (Turf Accountants) Ltd [1979] ICR 778
1979 Crane J	Employment, Litigation Practice	Casemap 1 Citers
	The court considered an appeal against a refusal of an adjournment of proceedings before the industrial tribunal when criminal proceedings on the same issues were pending. Held: The court refused to interfere with the exercise of his dicretion by the industrial tribunal chairman. Crane J said: "Now we think that when we, in this appellate tribunal, approach a consideration of the validity of a decision by an industrial tribunal, or by the appropriate officer of an industrial tribunal, upon a matter of discretion, we must look for two things, the discovery of either of which would be sufficient to entitle us to overturn the exercise of that discretion. Either we must find, in order so to do, that the tribunal, or its chairman, has taken some matter which it was improper to take into account or has failed to take into account some matter which it was necessary to take into account in order that discretion might be properly exercised; or, alternatively if we do not find that, that the decision which was made by the tribunal, or its chairman, in the exercise of its discretion, was so far beyond what any reasonable tribunal or chairman could have decided that we are entitled to reject it as perverse."

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331
1979 Deane J	Commonwealth, Litigation Practice	Casemap 1 Citers
	(Federal Court of Australia) Deane J interpreted a statute using the word 'substantial' saying that it "is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision."

Quazi -v- Quazi [1979] 3 All ER 897 HL(E); [1979] 3 WLR 833; [1980] AC 744
1979 HL Lord Scarman, Lord Fraser, Lord Diplock, Lord Salmon	Litigation Practice, Family, International	Casemap 1 Citers
	The husband had pronounced a talaq in Pakistan, in accordance with the 1961 Muslim Family Ordinance. The question was whether the English court had jurisdiction on the wife's petition to dissolve the marriage and make consequential orders relating to a house in Wimbledon in which the wife was living with their son and which belonged to the husband, and to make provision for their financial support. Held: The talaq was to be recognised under the 1971 Act. Consequently there was no subsisting marriage and no power in the English court to make financial provision. If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it: the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory construction, is a useful servant but a bad master. Lord Diplock said that the framework of compulsory registration, backed by penal sanctions, and the fact that without performance of the Regulations the Talaq did not take effect, amounted to proceedings. Lord Scarman rejected W's submission that other proceedings required to be if not judicial at least quasi judicial, advised a mor eliberal approach, saying that that the Act (and the Convention from which it derived) must be construed broadly so that the proceedings test is met by any act or acts officially recognised as leading to the divorce in the country in which it was obtained and itself recognised by the law of that country as an effective divorce. Lord Salmon construed the phrase 'other proceedings' widely as "any proceedings other than judicial proceedings" provided they were effective, as required by the Act, under the laws of the country in which they were obtained.
	Recognition of Divorces and Legal Separations Act 1971

Floor -v- Davis (Inspector of Taxes) [1980] AC 695; [1979] 2 WLR 830
1979 HL Viscount Dilhorne, Lord Wilberforce	Litigation Practice, Corporation Tax	Casemap 1 Cites 1 Citers
	The House considered whether the meaning of the phrase 'a person having control' extended to control by more than one person. This depended on whether the word “person” in the singular was to be construed as including the plural. Held: The House applied the 1889 Act. A permissible aid to construction of a stautute is to ask whether, if the defined meaning is used in a particular provision, that provision would be unworkable or produce a result that Parliament could not have intended would be produced. Viscount Dilhorne said that if a construction of a provision was "unworkable, or if not workable [leads] to a result that Parliament could not have intended, then it can be concluded that an intention contrary to the application of the Interpretation Act appears." and "It must be borne in mind that the Interpretation Act is to apply unless a contrary intention is shown. It is not the case that an intention that the Act should apply has to be shown for it to apply." Lord Wilberforce said: "It does not require authority to establish that the Act is one for the convenience of drafting: 'for further shortening the language used in Acts of Parliament', nor that a contrary intention may be gathered from the sense an intention of the Act in question. Though the Act appears to state a presumption this is not a strong one. Speaking of the common law presumption (which applied before the Interpretation Act 1889) that 'person' in an Act of Parliament includes 'corporations' Lord Blackburn said in Pharmaceutical Society v London and Provincial Supply Association Ltd (1880) 5 App Cas 857, 869: 'Circumstances, and indeed circumstances of a slight nature in the context, might show in which way the word is to be construed in an Act of Parliament ... whenever you can see that the object of the Act requires that the word "person" shall have the more extended or less extended sense, then, whichever sense it requires, you should apply the word in that sense . .' I do not think that the Act intends to apply any different test."
	Finance Act 1965 45 Sch7 15(2) - Interpretation Act 1889 1(1)

NWL Ltd -v- Woods [1979] 1 WLR 1294; [1979] ICR 867; [1979] 3 All ER 614
1979 HL Lord Scarman, Lord Diplock	Employment, Litigation Practice	1 Cites
	The phrase "trade dispute" was defined by reference to (i) the parties to it and (ii) the subject matter. Lord Scarman referred to the legislative history of attempts to regulate strike actions by trades unions: "It is wrong to attempt to construe any section or subsection of these Acts without reference to their legislative purpose. And it is also necessary to have regard to the history of the statute law and the case law since 1906 for a full understanding of them. This history I would summarise as a shifting pattern of Parliamentary assertions and judicial responses—a legal point counter-point which has been more productive of excitement than of harmony." Lord Fraser considered the basis for granting interlocutory injunctions. The strength of the prima facie case is one a factor of which to take account in weighing the competing considerations. Lord Diplock spoke of the basis for granting interlocutory injunctions: ". . . when properly understood, there is in my view nothing in the decision of this House in American Cyanamid Company v. Ethicon Limited to suggest that in considering whether or not to grant an interlocutory injunction the judge ought not to give full weight to all the practical realities of the situation to which the injunction will apply. American Cyanamid Company v. Ethicon Limited, which enjoins the judge on an application for an interlocutory injunction to direct his attention to the balance of convenience as soon as he has satisfied himself that there is a serious question to be tried, was not dealing with a case in which the grant or refusal of an injunction at that stage would, in effect, dispose of the action finally in favour of which ever party was successful in the application, because there would be nothing left on which it was in the unsuccessful party's interest to proceed to trial. . ." Cases of this kind are exceptional, but when they do occur they bring into the balance of convenience an important additional element. In assessing whether what is compendiously called the balance of convenience lies in granting or refusing interlocutory injunctions in actions between parties of undoubted solvency the judge is engaged in weighing the respective risks that injustice may result from his deciding one way rather than the other at a stage when the evidence is incomplete. On the one hand there is the risk that if the interlocutory injunction is refused but the plaintiff succeeds in establishing at the trial his legal right for the protection of which the injunction has been sought he may in the meantime have suffered harm and inconvenience for which an award of money can provide no adequate recompense. On the other hand there is the risk that if the interlocutory injunction is granted but the plaintiff fails at the trial the defendant may in the meantime have suffered harm and inconvenience which is similarly irrecompensable. The nature and degree of harm and inconvenience that are likely to be sustained in these two events by the defendant and the plaintiff respectively in consequence of the grant or the refusal of the injunction are generally sufficiently disproportionate to bring down, by themselves, the balance on one side or the other; and this is what I understand to be the thrust of the decision of this House in American Cyanamid v. Ethicon Limited. Where, however, the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other". And "Where ... the grant or refusal of the interlocutory injunction will have the practical effect of putting an end to the action because the harm that will have been already caused to the losing party by its grant or its refusal is complete and of a kind for which money cannot constitute any worthwhile recompense, the degree of likelihood that the plaintiff would have succeeded in establishing his right to an injunction if the action had gone to trial, is a factor to be brought into the balance by the judge in weighing the risks that injustice may result from his deciding the application one way rather than the other."

Harmony Shipping Co SA -v- Saudi Europe Line Limited [1979] 1 WLR 1380
1979 CA Lord Denning MR	Litigation Practice	Casemap 1 Citers
	One party objected to the use of the same expert handwriting witness by its opponent. Held: There is no property in an expert witness and any contract purporting to impose an obligation to give evidence for only one side in a dispute would be contrary to public policy. Lord Denning MR: "There being no such property in a witness, it is the duty of a witness to come to court and give his evidence in so far as he is directed by the judge to do so." and "Many of the communications between the solicitor and the expert witness will be privileged. They are protected by legal professional privilege. They cannot be communicated to the court except with the consent of the party concerned . . subject to that qualification it seems to me that an expert witness falls into the same position as a witness to fact. The court is entitled, in order to ascertain the truth, to have the actual facts which he has observed adduced before it and to have his independent opinion on those facts."

Singh -v- Nazeer [1979] Ch 474
1979 Sir Robert Megarry VC	Land, Litigation Practice	Casemap 1 Citers
	Once an order for specific performance has been made by the court, the parties have put it into the hands of the court as to how the contract is to be carried out. The provisions of the order regulate how the contract is to be carried out. The completion notice procedure available under the contract is no longer intended to be applicable: the working out, variation or cancellation of the order is a matter for the court on application made to it .

Siskina (owners of Cargo lately on Board) -v- Distos Compania Naviera SA [1979] AC 210; [1979] 3 WLR 818; [1979] 3 All ER 803
1979 HL Lord Diplock	Arbitration, Litigation Practice	Casemap 1 Cites 1 Citers
	An injunction was sought against a Panamanian ship-owning company to restrain it from disposing of a fund, consisting of insurance proceeds, in England. The claimant for the injunction was suing the company in a Cyprus court for damages and believed the company to have no other assets from which to meet the hoped-for damages award than the fund in England. No proprietary claim was, or could have been, made by the claimant to the fund. Held: The Court could not grant interlocutory relief when the substantive proceedings were taking place abroad. English courts had no jurisdiction to grant a freezing injunction in a case in which there was no claim for substantive relief before the English courts. Lord Diplock said: "A right to obtain an interlocutory judgment is not a cause of action. It cannot stand on its own. It is dependent upon there being a pre-existing cause of action against the defendant arising out of an invasion, actual or threatened by him, of a legal or equitable right of the plaintiff for the enforcement of which the defendant is amenable to the jurisdiction of the court. The right to obtain an interlocutory injunction is merely ancillary and incidental to the pre-existing cause of action. It is granted to preserve the status quo pending the ascertainment of the court of the rights of the parties and the grant to the plaintiff of the relief to which his cause of action entitles him, which may or may not include a final injunction." and ""To come within the sub-rule the injunction sought in the action must be part of the substantive relief to which the plaintiff's cause of action entitles him; and the thing that it is sought to restrain the foreign defendant from doing in England must amount to an invasion of some legal or equitable right belonging to the plaintiff in this country and enforceable here by a final judgment for an injunction." and “The general rule is that the jurisdiction of the English Court over persons is territorial. It is restricted to those upon whom its process can be served within the territorial limits of England and Wales. To this general rule there are some exceptions. These are now to be found in Order 11 of the Rules of the Supreme Court which have statutory force by nature of section 99 of the Supreme Court of Judicature (Consolidation) Act 1925. Order 11 permits the High Court to grant leave to a plaintiff to serve its process upon a person outside the territorial limits of England and Wales in those cases, but only in those cases, that are specified in sub-rules (a) to (o) of rule 1(1) or in rule 2 . . In several of the cases specified in sub-rules (a) to (o) the jurisdiction exercisable over foreigners by the High Court is wider than that which is recognized in English law as being possessed by courts of foreign countries. These are ‘exorbitant’ jurisdictions which run counter to the normal rules of comity among civilized nations. For this reason it has long been held that where there is any room for doubt as to their meaning the provisions of the sub-rules are to be strictly construed in favour of the foreigners : The Hagen [1908] P.189, 201 per Farwell L.J. and it is in my view equally well settled now that it is not permissible in any action commenced by service of process on a person out of the jurisdiction to litigate any claim that does not fall within one or other of sub-rules (a) to (o).” The purpose of a freezing order is "…to ensure that there will be a fund available within the jurisdiction to meet any judgment obtained by a Plaintiff in the High Court against a Defendant who does not reside within the jurisdiction and has no place of business here." As to the 1925 Act: "That sub-section, speaking as it does of interlocutory orders, presupposes the existence of an action, actual or potential, claiming substantive relief which the High Court has jurisdiction to grant and to which the interlocutory orders referred to are but ancillary. This factor has been present in all previous cases in which Mareva injunctions have been granted …. it is not present in this."
	Rules of the Supreme Court Order 11 Rule 1 - Judicature Act 1925 45(1)

Third Chandris Shipping Corporation -v- Unimarine SA [1979] QB 645
1979 CA Lord Denning MR, Mustill J	Litigation Practice	Casemap 1 Cites 1 Citers
	The court gave guidelines for the granting of Mareva injunctions as follows: "(i) The plaintiff should make full and frank disclosure of all matters in his knowledge which are material for the judge to know. . (ii) The plaintiff should give particulars of his claim against the defendant, stating the ground of his claim and the amount thereof, and fairly stating the points made against it by the defendant. (iii) The plaintiff should give some grounds for believing that the defendant has assets here . . (iv) The plaintiff should give some grounds for believing that there is a risk of the assets being removed before the judgment or award is satisfied. (v) The plaintiff must, of course, give an undertaking in damages -- in case he fails in his claim or the injunction turns out to be unjustified in a suitable case this should be supported by a bond or security: and the injunction only granted on it being given, or undertaken to be given". Mustill J noted that such applications were being made at a rate of about twenty per month.

Jones -v- Wrotham Park Settled Estates [1980] AC 74; [1979] 1 All ER 286; [1979] 2 WLR 132
1979 HL Diplock L	Litigation Practice	Casemap 1 Citers
	An attempt to determine the meaning of an enactment should not cross the boundary between construction and legislation: "My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language used would lead to results which would clearly defeat the purposes of the Act. But in doing so the task on which a court of justice is engaged remains one of construction; even where this involves reading into the Act words which are not expressly included in it. Kammins Ballrooms Co Ltd v. Zenith Investments (Torquay) Ltd [1971] A.C. 850 provides an instant of this; but in that case the three conditions that must be fulfilled in order to justify this course were satisfied. First, it was possible to determine from a consideration of the provisions of the Act read as a whole precisely what the mischief was that it was the purpose of the Act to remedy; secondly, it was apparent that the draftsman and Parliament had by inadvertence overlooked, and so omitted to deal with, an eventuality that required to be dealt with if the purpose of the Act was to be achieved; and thirdly, it was possible to state with certainty what were the additional words that would have been inserted by the draftsman and approved by Parliament had their attention been drawn to the omission before the Bill was passed into law. Unless this third condition is fulfilled any attempt by a court of justice to repair the omission in the Act cannot be justified as an exercise of its jurisdiction to determine what is the meaning of a written law which Parliament has passed. Such an attempt crosses the boundary between construction and legislation. it becomes an usurpation of a function which under the constitution of this country is vested in the legislature to the exclusion of the courts."

Jefferson Ltd -v- Bhetcha [1979] 1 WLR 898
1979 CA Megaw LJ	Litigation Practice	1 Cites 1 Citers
	The plaintiffs brought a claim to recover monies appropriated by a former employee who was also facing prosecution for offences in connection with the same matters. The defendant sought a stay of the application for summary judgement. Held: The application for summary judgement should proceed. The issue of a stay to prevent civil proceedings when criminal prosecutions arising out of the same events are also pending is a matter of discretion to be exercised by reference to the competing considerations. It is not a matter of a rule. The court had a discretion to stay the civil proceedings or to adjourn an application for summary judgment having regard to the concurrent criminal proceedings. One factor to be taken into account was whether there was "a real danger of causing injustice in the criminal proceedings", for example if publicity might influence potential jurors in the criminal proceedings or if disclosure of the defence might enable prosecution witnesses to prepare a fabrication of evidence or might lead to interference with witnesses.

Prudential Assurance Co Ltd -v- Newman Industries Ltd [1979] 3 All ER 838; [1981] Ch 29
1979 ChD Vinelott J	Litigation Practice	Casemap 1 Citers
	Members of the defendant company had approved in general meeting, of an acquisition of the assets of another company in which its directors were substantially interested. The shareholders' approval was given on the basis of a circular. The action was commenced against the directors by the Prudential as a minority shareholders' action alleging that the circular was tricky and misleading. It sought damages for conspiracy. Held. Vinelott J said: "These cases, in my judgment, establish two propositions. First, no order will be made in favour of a representative plaintiff if the order might in any circumstances have the effect of conferring on a member of the class represented a right which he could not have claimed in a separate action or of barring a defence which the defendant could have raised in such proceedings. Secondly, no order will be made in favour of a representative plaintiff unless there is some element common to the claims of all members of the class which he purports to represent." He also said:"The second condition is that there must be an "interest" shared by all members of the class. In relation to a representative action in which it is claimed that every member of the class has a separate cause of action in tort, this condition requires, as I see it, that there must be a common ingredient in the cause of action of each member of the class. In the present case that requirement is clearly satisfied." and "As drafted the order which the plaintiff seeks in its representative capacity is for a declaration that the plaintiff in its personal capacity as a shareholder in Newman Industries and on behalf of itself and all other shareholders in Newman Industries who like the plaintiff have suffered damage is entitled to damages against the defendants, Bartlett and Laughton, for conspiracy. The practical effect of such a declaration would, it seems to me, be no greater and no less than the effect of declarations, first, that the circular was tricky and misleading; secondly, that the individual defendants conspired to procure its circulation in order to procure the passing of the relevant resolution; and thirdly, that in so doing they conspired either to injure the plaintiff and the other shareholders at that date or to commit an unlawful act, or to induce a breach by the first defendant company of its contractual duty to the shareholders. It would, I think, be better that those declarations, which constitute the common element of any claim by any member of the class for damages for conspiracy, should be so spelt out. Further, I can see no reason for defining the class of shareholders of the first defendant company at July 29, 1975, as being those "who like the plaintiff have suffered damage and are entitled to damages." The words I have cited appear to me to be unnecessary and undesirable. The members of the class who share a common interest in obtaining the declarations I have outlined are shareholders other than the second and fourth defendants as at July 29. A person coming within that class will be entitled to rely on the declarations as res judicata, but will still have to establish damage in a separate action."

Science Research Council -v- Nassé; Science Research Council -v- Nasse [1979] ICR 921; [1979] 3 All ER 673; [1980] AC 1028; [1979] 3 WLR 762; [1979] UKHL 9
1 Nov 1979 HL Templeman, Salmon, Watkins LJJ	Employment, Litigation Practice, Discrimination	Casemap 1 Cites 1 Citers
	Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination. Held: The court ought not to order breach of properly given confidences unless it is necessary in the interests of justice. Lord Salmon said: "If the tribunal is satisfied that it is necessary to order certain documents to be disclosed and inspected in order fairly to dispose of the proceedings, then, in my opinion, the law requires that such an order should be made; and the fact that the documents are confidential is irrelevant. The law has always recognised that it is of the greatest importance from the point of view of public policy that proceedings in the courts or before the tribunals shall be fairly disposed of. This, no doubt, is why the law has never accorded privilege against discovery and inspection of confidential documents which are necessary for fairly disposing of the proceedings."
	Employment Protection Act 1975 - Sex Discrimination Act 1975 - Race Relations Act 1976 - European Convention of Human Rights 6
	Link[s] omitted

Burmah Oil Ltd -v- Governor and Company of the Bank of England & another [1980] AC 1090; [1979] UKHL 4
1 Nov 1979 HL Lord Edmund-Davis, Lord Keith of Kinkel	Litigation Practice
	The House considered an application for discovery of sensitive documents. Lord Edmund-Davis: "A judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?" and "But it has been suggested that the position is otherwise where the 'class' claim is not challenged. I see no reason why this should be so once it is postulated that the 'withheld' class documents are 'likely' to contain material substantially useful to the party seeking discovery. That qualification is necessary for what is no more that a 'fishing expedition' ought not to be advanced by the judge's having a peep to see whether they contain an attractive catch." Lord Keith of Kinkel: "There can be no doubt that the court has the power to inspect the documents privately. This was clearly laid down in Conway v Rimmer ...I do not consider that the exercise of such power, in cases responsibly regarded by the court as doubtful, can be treated as itself detrimental to the public interest."
	Link[s] omitted

London and Clydeside Estates -v- Aberdeen District Council [1980] SC (HL) 1; [1980] 1 WLR 182; [1979] UKHL 7
8 Nov 1979 HL Lord Hailsham of Saint Marylebone LC, Lord Wilberforce, Lord Fraser of Tullybelton, Lord Russell of Killowen, Lord Keith of Kinkel	Scotland, Litigation Practice, Administrative	Casemap 1 Cites 1 Citers
	The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused. Held: The House considered the consequences of a failure to comply with a procedural requirement, and the different classes of such requirements: 'The contention was that in the categorisation of statutory requirements into "mandatory" and "directory", there was a subdivision of the category "directory" into two classes composed (i) of those directory requirements "substantial compliance" with which satisfied the requirement to the point at which a minor defect of trivial irregularity could be ignored by the court and (ii) those requirements so purely regulatory in character that failure to comply could in no circumstances affect the validity of what was done.' Lord Hailsham said: 'When Parliament lays down a statutory requirement for the exercise of legal authority it expects its authority to be obeyed down to the minutest detail. But what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the subject viewed in the light of a concrete state of facts and a continuing chain of events. It may be that what the courts have to decide in a particular case is the legal consequence of non-compliance on the rights of the chain of events. It may be that what the courts are faced with is not so much a stark choice of alternatives but a spectrum of possibilities in which one compartment or description fades gradually into another. At one end of this spectrum there may be cases in which a fundamental obligation may have been so outrageously and flagrantly ignored or defied that the subject may safely ignore what has been done and treat it as having no legal consequences upon himself. In such a case if the defaulting authority seeks to rely on its action it may be that the subject is entitled to use the defect in procedure simply as a shield or defence without having taken any positive action of his own. At the other end of the spectrum the defect in procedure may be so nugatory or trivial that, if the subject is so misguided as to rely on the fault, the courts will decline to listen to his complaint. ' and 'though language like "mandatory," "directory," "void," "voidable," "nullity" and so forth may be helpful in argument, it may be misleading in effect if relied on to show that the courts, in deciding the consequences of a defect in the exercise of power, are necessarily bound to fit the facts of a particular case and a developing chain of events into rigid legal categories or to stretch or cramp them on a bed of Procrustes invented by lawyers for the purposes of convenient exposition. As I have said, the case does not really arise here, since we are in the presence of total non-compliance with a requirement which I have held to be mandatory. Nevertheless I do not wish to be understood in the field of administrative law and in the domain where the courts apply a supervisory jurisdiction over the acts of subordinate authority purporting to exercise statutory powers, to encourage the use of rigid legal classifications. The jurisdiction is inherently discretionary and the court is frequently in the presence of differences of degree which merge almost imperceptibly into differences of kind.'
	Land Compensation (Scotland) Act 1963 25
	Link[s] omitted

Levy -v- Levy Unreported 9th November 1979
9 Nov 1979	Litigation Practice	Casemap 1 Citers
	The court was prepared to use the nomination 'John Doe' to identify an individual whose name was not known to the court.