Civil Litigation

Question 1

Denton v TH White – relief from sanctions guidance

Answer 1

1. Seriousness and significance of breach
2. Why it occurred
3. Assess circumstances, proportionate cost, expeditiously

Question 2

The Aegis Blaze - privilege

Answer 2

Once a document is privileged, it is always privileged (i.e. in subsequent proceedings)

Question 3

Parry v Newsgroup - privilege

Answer 3

Solicitors’ attendance note not privileged (both sides aware)

Question 4

Three Rivers DC v Governor and Company of the Bank of England - privilege

Answer 4

Narrow definition of ‘client’ (not two departments within BoE)

Question 5

Balabel v Air India - legal advice privilege

Answer 5

Wider communications

Question 6

Three Rivers DC and others v Governor and Company of the Bank of England (HL): - privilege

Answer 6

Wide definition of ‘advice’ (‘legal spectacles’ - how to present information)

Question 7

Bank of Nova Scotia v Hellenic Mutual War Risks Association - privilege

Answer 7

Repeat internally legal advice privileged, opinion formed is not

Question 8

Litigation Privilege Definition

Answer 8

• Confidential info
• Between lawyer and client or between one of them and a third party
• For the dominant purpose of
  o Waugh v BRB: if two purposes are equal (one litigation, one not), litigation privilege does not apply (safety report was prepared for operational issues, as well as for litigation)
  o Re: Highgrade Traders: look at purpose of COMMISSIONER, not author, of report
• Obtaining information, advice or evidence
• Where litigation is reasonably in prospect – USA v Philip Morris

Question 9

Rush and Tompkins v Greater London DC - ‘without prejudice’

Answer 9

Look at substance, not form

Question 10

Great Atlantic Insurance v Home Insurance - privilege

Answer 10

Waive privilege over part –> whole

Question 11

Olatawura v Abiloye - interim applications

Answer 11

Balancing act between injustice to C and injustice to D

More evidence that C in financial difficulty, greater need for security

Question 12

Sir Lindsay Parkinson v Triplan - security for costs

Answer 12

• C’s case is bona fide and not a sham
• Whether the application is being used to stifle a genuine claim
• Delay
• Claimant’s want of means was brought about by the defendant’s conduct

Question 13

Swain v Hillman - summary judgment

Answer 13

The words ‘no real prospect’ = real, not fanciful

Does NOT mean real and substantial

Question 14

International Finance Corp v Utexafrica SPRL - summary judgment

Answer 14

‘Real prospect’ = better than merely arguable

Question 15

Swain v Hillman (2) - summary judgment

Answer 15

Not mini trial, but don’t need to take everything applicant says as true

Question 16

American Cyanamid Co v Ethicon - interim prohibitory injunctions guidance

Answer 16

1. SERIOUS question to be tried?
2. If yes, would damages be an adequate remedy for a party injured by the court’s grant of, or failure to grant, an injunction? (consider impact on both C and D)
3. If not, where does the balance of convenience lie?

If factors are evenly balanced, preserve ‘status quo’ – i.e. position before respondent started conduct in question

Question 17

Mareva Compania Naviera v International Bulkcarriers SA - freezing injunctions

Answer 17

1. Substantive cause of action, justiciable in England and Wales (F.I. is a remedy, not a cause)
2. A good arguable case
3. The respondent has assets within the jurisdiction (equity will not act in vain)
4. 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 (look at e.g. incidents of dishonesty, default on debts, evidence of starting to remove assets, etc.)

Question 18

Interest on claim - Particulars

Answer 18

s.35A Senior Courts Act 1981

OR

s.69 County Courts Act 1984