General civil law Flashcards
Abiola v Abiola [2004] EWHC 709 (Ch)
For the purposes of the Civil Procedure Rules 1998 Part 39 r39.3 the defendant was able to demonstrate that she had a good reason for failing to attend an earlier trial and that she had a reasonable prospect of success on certain issues at a subsequent trial. GCv
Afzal and others v Ford Motor Co Ltd and other appeals [1994] 4 All ER 720, CA
Gives an example of “unreasonable behaviour” such that the judge can assess costs. Also holds that the small claims track is suitable where the facts are complex or a question of law is involved - it is only where the facts are exceptionally complex and the question of law “difficult” that the small claims track is inappropriate. GCv
Amru Butani v London Borough of Camden, 31st July 2001
In respect of allocation to a track, the Claimant wished the claim to be allocated to the multi track. In what was essentially a disrepair claim, he pleaded £3,000 in special damages not exceeding £25,000. The claim was allocated to the small claims track at forst instance. The court held on appeal that there were other fators than value of the claim to be taken into account, including those factors set out under CPR 26.8(1). Per Lord Justice Peter Gibson at para 29, upholding the allocation of the claim to the small claims track. GCv
Anderton v Clwyd County Council [2002] EWCA Civ 933
The deemed date of service under CPR 6.7 is irrebuttable, even by evidence from the Defendant of receipt on a different date. GCv SAJ
Anfield (UK) Limited v Bank of Scotland Plc
The High Court found that Bank of Scotland was entitled to be subrogated to the earlier Halifax Charge to the extent that it had redeemed the same from its mortgage advance and that the intermediate lenders would have been unjustly enriched by the fact that Bank of Scotland had repaid the Halifax charge. The fact that Bank of Scotland had failed to ensure that its charge was properly registered did not defeat its claim for subrogation.gcv
Benesco Charity Ltd v Kanj [2011] EWHC 3415 (Ch)
This was a possession claim brought under CPR Part 55 on the basis that the defendants were trespassers. A defence was filed, supported by a witness statement, asserting a tenancy or sub-tenancy. At the first hearing of the claim, a judge granted possession. The issue for the judge had been whether the claim was “genuinely disputed on grounds which appear to be substantial”: CPR 55.8(2). The High Court allowed an appeal. A person is entitled to trial of their defence and the content of a witness statement should not be rejected at a summary stage “unless the evidence is incredible”. LandT GCv
Bloomfield v Roberts [1989] C.L.Y. 2948
Costs; unreasonable conduct; objective test test to decide unreasonable conduct GCv
Bradford & Bingley v Rashid
The Claimant Mortgagee was seeking judgment on a shortfall following possession and sale of the Defendant’s property. The Defendant wished to raise a Defence of Limitation, saying the Claim was now statute-barred. The Claimant wished to rely on two letters as acknowledgment of the debt, which the Defendant said were unadmissable as they were impliedly part of without prejudice negotiations. One letter had been written by an advice centre on the Defendant’s behalf, explaining that he could not afford to pay “the outstanding balance”. A second letter offering a lesser sum in settlement had been written impliedly without prejudice. HELD- Both letters were admissable and constituted an acknowledgment of the debt. Therefore, under s. 29(5) of the Limitation Act 1980, time had begun to run afresh from the date of the letter and the proceedings were not statute-barred. GCv
Cranfield v Bridgegrove Ltd [2003] 3 All ER 129
Approves Anderton. Further, states service at ‘usual or last known address’ is valid under CPR 6.5 even if Claimant knew Defendant was no longer residing there and no address for service is given and no solicitors acting. GCv SAJ
Dockerill v Tullett, Macefiled v Bakos, Tubridy v Sarwar
Decision in relation to recovering costs of attendance in infant settlements valued under £1k.
DvT: (1) for infant approvals which would fall in the small claims track (ie
Forceleux Ltd v Binnie [2009] EWCA Civ 854
A hearing to which CPR 55.8 applies and the Court decides the claim cannot sensibly be called a “trial” within the meaning of CPR 39.3. Therefore in a Defendant’s application to set aside a possession order, the provisions of CPR 39.3 do not apply. In such circumstances CPR 3.1(2)(m) is amply wide enough to give a Court power to set aside a possession order if, in its discretion, it considers that the interests of justice demand it. The need to act promptly is not an absolute requirement imposed on the Defendant but simply a factor to be taken into account. Mtp. GCv
Forthright Finance Ltd v Ingate [1997] 4 All E.R. 99
I appealed against a decision, overturning the judge at first instance, that CF, as a third party, were not liable to indemnify her against a judgment in the sum of £3,135 including interest. I made a conditional sale agreement with FF to purchase a car and a year later agreed with a car dealer to purchase a newer model. The dealer agreed to take the first car in part exchange and to discharge the balance of £1,992 that was outstanding to FF. A new conditional sale agreement was made with CF for the second car, which involved I paying a deposit of £1,000. The dealer went into liquidation, having failed to pay FF, and the first car disappeared from the dealer’s premises. CF argued that the two transactions were entirely separate. It was held, allowing the appeal, that the mere fact that the agreed value for the first car cancelled out the amount still outstanding upon it did not mean that there had been two transactions. Where goods which would be the subject of a debtor, creditor, supplier agreement, were sold or proposed to be sold by a broker, then any negotiations relating to those goods would be deemed to have been made by the negotiator on behalf of the creditor RofG GCv
G W by his litigation friend DA v BW & Others
This suggests that for a judge to invest a child settlement sum in the normal Special Investment Account “is an abrogation of judicial responsibility” at a time when the interest to be expected is as low as it currently is. This judgment recommends instead that the sum be paid directly to the Litigation Friend for investment, provided they can be entrusted to invest it on behalf of the child, because there are a number of Children’s accounts available on the market that would return considerably higher figures.GCv
Gloyne v Richardson [2002] EWCA Civ 1967
Claim for indemnity reinstated because it was prudent in this fact-sensitive case not to have struck out the claim GCv
GW v BW
This judgment recommends that the sum awarded be paid directly to the Litigation Friend for investment, provided they can be entrusted to invest it on behalf of the child, because there are a number of children’s accounts available on the market that would give considerably higher returns.Gcv
H-S (Minors) (Chambers Proceedings:Rights of Audience) (1998) The Times, 25 February, CA
It was held that, subject to considerations of individual competence or behaviour under Courts and Legal Services Act 1990 s.27(4), the conditions of Courts and Legal Services Act, s.27(2)(e) conferred no discretion on the court to refuse to hear an advocate. GCv
Homes v Smith [2000] Lloyd’s Rep. Bank. 139
Contract for sale of land; promissory notes; cheques; time of the essence; whether payment by cheque under promissory note constituted payment by agreed time GCv
Huseyin Tasyurdu v Immigration Appeal Tribunal [2003] EWCA Civ 447
Legal advisers have a duty under the Civil Procedure Rules 1998 Part 1 r. 1.3 to assist courts in achieving the overriding objective, which included making appropriate use of court resources GCv
Jarvis v Swans Tours Ltd [1973] 1 All ER 71
Contract – Breach – Damages – Measure – Mental distress and inconvenience – Vexation and disappointment – Contract to provide holiday – Brochure representing facilities available on holiday – Facilities lacking – Plaintiff entitled to compensation for loss of entertainment and enjoyment – Damages not restricted to physical inconvenience – Vexation and disappointment relevant considerations in assessing compensation – Holiday costing £63 – Plaintiff entitled to an award of £125 damages. GCv
Jones v Williams [2002] EWCA Civ 897
In refusing to allow W to give evidence or to call evidence on his own part, the judge below erred in failing to consider the effect on the parties of granting relief from the sanction of exclusion GCv
Julian Hodge Bank v Hall [1998] C.C.L.R. 14
The question arose with reference to a regulated conditional sale agreement in respect of a car whether a third of the “total price” had been paid such that the goods had become “protected goods” within the Consumer Credit Act 1974 s. 90. The agreement recorded the total price as being £8,335. However, H had incurred liabilities for interest in respect of late payments and JHB therefore argued that those amounts should have been included within the term of “total price”. It was held that the contractual provision as to payments of interest and for the cost of communications provided for liquidated damages in relation to late payment and therefore could not fall within the definition of “total price “ within the 1974 Act s. 89. H had therefore paid more than one third of the total price. RofG GCv
L’Estrange v Graucob [1934] 2 K.B. 394
It was held that as the buyer had signed the written contract, and had not been induced to do so by any misrepresentation, she was bound by the terms of the contract, and it was wholly immaterial that she had not read it and did not know its contents; and that the action failed and the sellers were entitled to judgment GCv
Lagden v O’Connor [2004] 1 A.C. 1067
Consumer hire agreements; damages; hire of motor vehicle by impecunious hirer; no choice for hirer but to accept additional benefits (Dimond v Lovell distinguished) RofG GCv
Lucrezia Duffel v Philip Davies Lawtel 3rd May 2001, Liverpool County Court (unreported elsewhere)
Holds that “whether there is unreasonable conduct by a defendant” is “a question to be considered objectively from the point of view of the Claimant”. GCv
