Cases Flashcards
Andrew Mitchell v News Group Newspapers
Allocation and Costs
Relief from Sanctions (CPR 3.9)
CPR 3.14 applied by analogy, so failure to file on time meant costs “will be treated as a budget comprising only the applicable court fees”. Court refused to grant relief from sanction.
COA on CPR 3.9 set out guidance with approach that should be followed in applying the rule:
1) What is the nature of the non-compliance
2) If the default was trivial, why did it occur?
Relief from sanctions should be granted more sparingly than before.
Court will have regard to the overriding objective when considering an application made under CPR3.9
Denton and others v TH White Ltd and another
All parties had served their witness statements late, but 18 months later the D sought to serve 6 further statements. At first instance, the court granted relief.
COA reversed appeal as the breach was significant in that it caused the trial date to be vacated and there was no good reason for the breach.
Applications for relief should now be approached:
1. Identify and assess the seriousness and significance of the failure to comply with the relevant rule, PD or court order which engages CPR 3.9.
IF the breach is neither serious or significant, relief should be granted.
2. If breach IS serious or significant, consider why breach occurred.
3. Having considered why the breach occurred, evaluate all circumstances of the case to ensure the court deal with matters justly and particular weight should be given to CPR 3.9 that:
a) litigation must be conducted efficiently and at a proportionate cost and
the court must enforce compliance with rules, PDs and court orders.
Decadent Vapours Ltd v Bevan and others
C failed to pay his court fees on time, the cheque was delayed in the post.
Relief granted by COA as the breach was near bottom of seriousness and did not cause problems to the efficient conduct of the litigation at proportionate cost.
Utlise TDS Limited
C filed their costs budget 45 minutes late in breach of a court order & 13 days late notifying the court of settlement outcomes.
Held relief was granted – filing late did nit imperil any future hearing date or the conduct of the litigation or any other litigation.
The Aegis Blaze
Disclosure - Basic principle – “once privileged, always privileged”.
Parry v Newsgroup Newspapers
Attendance note of a conversation between the parties (or the solicitors on behalf of the parties) – not privileged.
Note is a communication for the purposes of disclosure.
No confidentiality for matters at which both parties (C & D) are present.
Three Rivers District Council and others v Governor and Company of the
Bank of England [2003]
EWCA Civ 474 – COA held that the Bank of England was not entitled to claim privilege over certain documents because of a narrow definition of who the client was on these
facts. The Court held that the client was the Bingham Inquiry Unit (‘BIU’) within
the Bank.
Therefore internal memoranda prepared by anyone outside the BIU
(e.g. employees of the Bank, the Governor, ex- employees) would not be
privileged. The House of Lords did not deal with this point in its November
2004 ruling. This narrow definition of client from the Court of Appeal case
therefore remains good law for the time being, to the concern of many
practitioners. However, even having identified the client, do not assume that everything in the solicitor’s file is covered by legal advice privilege.
Balabel v Air India
Where a solicitor is retained primarily to provide legal advice, wider communications between solicitor and client, even if ancillary to that purpose, will be privileged because they fall within the “continuum of communication”. Wider use of legal privilege. Cannot disclose these documents.
Any communications which are concerning legal advice being given – may well be privileged.
Bank of Nova Scotia v Hellenic Mutual War Risks Association (the Good Luck)
Provided that if a client repeats internally legal advice provided by his lawyer, for example to other personnel within his
company, then that repetition also has the benefit of privilege. Case should be taken to inform clients: representing legal advice internally – i.e. to the board, need to be done with caution as legal privilege may be lost on dissemination.
Waugh v BRB
Litigation privilege
Where a document has two purposes, litigation has to be the dominant
purpose. If the purposes are equal, the document will not be privileged.
Re Highgrade Traders
Dominant purpose: determining –
Check with the commissioner of the document, not the author (if two different people), it is the commissioner’s dominant purpose that will be used in determining whether or not the document is privileged.
USA v Phillip Morris
Reasonably in prospect
Only available if a party is aware of circumstances rendering litigation between himself and a particular person (or class of persons) – must be a real likelihood rather than a mere possibility.
A general apprehension of litigation is insufficient.
Rush and Tompkins v Greater London Council
Substance not form. Does not need to be labeled WP/StC for privilege to apply. Will not be seen by the court.
- unless marked “WP Save as to Costs” (i.e. apart from costs) – only the costs section can be seen and can be taken into account, e.g. – conduct, costs liability to other party and amount of costs.
Great Atlantic Insurance v Home Insurance
If you waive privilege on part of the document, generally the rest of the document will be waived of privilege too. -> May also be waived over the entire chain of documents dealing with the same issue.
Re: Unisoft Group (No2)
Interim applications
The defendant must show the company would not (as opposed to may not) be able to pay its debts when the order is made against it. The question is to be answered at the time of the application although the court can take into account what will be expected in the future, before
any order would in fact be made.
Sir Lindsay Parkinson v Triplan
The main factors that the court should consider in exercising its discretion
were identified by Lord Denning in the leading pre-CPR case of Sir Lindsay
Parkinson v Triplan [1973] 2 All ER 273 CA and include whether the claimant’s claim is bona fide and not a sham, whether the application is being used oppressively to stifle a genuine claim, delay in making the application
and whether the claimant’s want of means was brought about by the
defendant’s conduct.
Swain v Hillman
Summary judgment
Lord Woolf said ‘no real prospect’ did not need amplification. The words
meant whether there was a realistic (as opposed to a fanciful) prospect of
success. The words did not mean real and substantial.
1 All E.R. 91
The hearing of a summary judgment application is not a mini trial but that does not mean the court has to accept everything said by the parties. In some
cases it may be clear there is no substance to the factual assertions made by a party. The court must look at the merits to the extent necessary to determine whether there is a real prospect of success.
International Finance Corp v Utexafrica
The respondent does not have to show that their case will probably succeed at
trial, but there must be a real prospect of the defence or claim succeeding.
The word ‘real’ means better than merely arguable.
American Cyanamid Co v Ethicon Ltd
Interim Injunctions - Lord Diplock stated his guidelines in a threefold ‘test’, as follows:-
1. Is there a serious question to be tried?
If the answer to that question is “yes”, then there are two further related
questions to answer which are:-
2. Would damages be an adequate remedy for a party injured by the court’s
grant of, or failure to grant, an injunction?
3. If not, where does the “balance of convenience” lie?
Mareva Compania Naviera SA v International Bulkcarriers
- A substantive cause of action justiciable in England and Wales
- A good arguable case
- The respondent has assets within the jurisdiction
- There is a real risk that the respondent may remove from the jurisdiction, dispose of, dissipate or hide his assets in any way that will hinder enforcement of any judgment the applicant may obtain.
Ninemia Maritime Corporation v Trave Schiffahrtsgesellschaft mbH & Co KG (the Niedersachsen)[1983] 1 WLR 1412,
Mustil J said
that “a good arguable case” is one which is “more than barely capable of
serious argument, and yet not necessarily one which the judge believes
to have a better than 50 % chance of success”.
