Civil procedure and Civil evidence

Following a reference from the House of Lords, the European Court of Justice held that under the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968 a court of a Contracting State was not entitled to grant an injunction prohibiting a party to proceedings before it from commencing or continuing legal proceedings before a court of another Contracting State, even where that party was acting in bad faith with a view to frustrating the existing proceedings: Turner v Grovit (C159/02) [2004] 3 WLR 1193.

The House of Lords, overturning a Court of Appeal decision, held that advice given by solicitors about the Bank of England’s presentation of evidence to the Bingham Inquiry into the supervision of BCCI under the Banking Acts was subject to legal advice privilege: Three Rivers DC v Bank of England (Disclosure) (No.4) [2004] UKHL 48, sub nom Three Rivers DC v Bank of England (No.6).

The Court of Appeal ruled that the public interest in investigating serious fraud should take precedence over the need to control collateral use of documents compulsorily disclosed in the course of civil litigation such that, in the absence of other factors, the court’s discretion under CPR 31.22(1) should be exercised in favour of compliance with a notice issued by the Serious Fraud Office under the Criminal Justice Act 1987: Marlwood Commercial Inc v Kozeny [2004] EWCA Civ 798.

The Court of Appeal allowed an appeal against the refusal of an application under the Third Parties (Rights against Insurers) Act 1930 for disclosure of information in the possession of a company’s administrators: Re OT Computers Ltd (In Administration) [2004] EWCA Civ 653.

The Court of Appeal gave guidance on the factors to be considered when deciding whether a refusal to agree to mediation amounted to unreasonable conduct justifying a costs sanction against a successful party: Halsey v Milton Keynes General NHS Trust : Steel v Joy [2004] EWCA Civ 576.

Lloyd’s of London was held not to be amenable to judicial review in relation to the making of decisions by its Business Conduct Committee approving minority buy-outs of memberships: R (on the application of West) v Lloyd’s of London [2004] EWCA Civ 506.

The Court of Appeal held that a claimant was entitled to raise, in relation to assessment of damages for breach of contract, a plea of illegality that the defendant had raised but withdrawn after succeeding on its counterclaim: Bim Kemi AB v Blackburn Chemicals Ltd (Application to Strike Out) [2004] EWCA Civ 1490.

In the High Court, a new practice guide on the disclosure of e-mails and other electronic documents was added to the Admiralty and Commercial Courts Guide following the issue of a report dated 6/10/2004 by a working party of the Commercial Court Users Committee: www.commercialcourts.gov.uk.
The jurisdiction of the High Court under s.37(1) Supreme Court Act 1981 to appoint someone other than the official receiver as interim receiver where it was “just and convenient” to do so was considered in Rio Properties Inc v Gibson Dunn & Crutcher [2004] EWCA Civ 1043.

Arbitration

The Privy Council ruled that where an arbitration award had been remitted to the arbitrator for amendment of its form, the substance of the award remained valid and enforceable: Carter (t/a Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd [2004] UKPC 29.

The Court of Appeal applied EC law in considering whether an insurer was bound to refer its claims against another insurer to arbitration in England, rather than litigating in Finland: Through Transport Mutual Insurance Association (Eurasia) Ltd v New India Assurance Co Ltd (The Hari Bhum) [2004] EWCA Civ 1598.

The Court of Appeal considered whether a decision that a judgment on an application to set aside an arbitrator’s award for serious irregularity, and a report of that judgment, should not be published: Department of Economic Policy and Development of the City of Moscow v Bankers Trust Co [2004] EWCA Civ 314.

A particular conclusion of arbitrators in making an award was held to be collateral to it and thus not sufficient to constitute an issue estoppel in subsequent litigation: Lincoln National Life Insurance Co v Sun Life Assurance Co of Canada [2004] EWCA Civ 1660.

The High Court considered its jurisdiction to grant an interim injunction in respect of arbitral proceedings for the purpose of preserving evidence: Hiscox Underwriting Ltd v Dickson Manchester & Co Ltd [2004] EWHC 479.

Human rights

The House of Lords held that under s.12(3) Human Rights Act 1998 a court could not make an interim injunction restraining publication of confidential material unless satisfied that the applicant’s prospect of success at trial were sufficiently favourable to justify making the order: Cream Holdings Ltd & Ors v Banerjee [2004] UKHL 44.

The House of Lords decided that it was not contrary to the interests of justice to allow the registration of a foreign confiscation order where the alleged breach of the right to a fair trial committed in the making of the order was not so fundamental as to bring into play an exception to the principle of territoriality, which could be described as giving indirect effect to the European Convention on Human Rights 1950: United States v Montgomery (No.2) [2004] UKHL 37.

The Administrative Court decided that exceptions to the overall ban on tobacco advertising were not contrary to the right to commercial free speech: R (on the application of British American Tobacco UK Ltd) v Secretary of State for Health [2004] EWHC 2493.

Equity

The Court of Appeal ruled that a defendant was entitled to be subrogated to a claim against a co-defendant bank where the bank had been unjustly enriched: Niru Battery Manufacturing Co v Milestone Trading Ltd (No.2) [2004] EWCA Civ 487.

The Court of Appeal considered the entitlement of a lender to be subrogated to the rights of a first lender under a registered mortgage where it had been unable to register its own mortgage due to opposition from a first chargee and where the first loan had been paid off using money borrowed from the lender: Cheltenham & Gloucester Plc v Appleyard [2004] EWCA Civ 291.

The compromise of an action based on a decision of the court that was later overturned was binding on the parties and was not vitiated by a true mistake of law: Brennan v Bolt Burdon [2004] EWCA Civ 1017.

Estoppel per rem judicatam could not bind a person who claimed title to goods under the person against whom a judgment was obtained, unless he obtained his interest from that person after the judgment was given: Powell v Wiltshire [2004] EWCA Civ 534.

The Court of Appeal considered the application of the doctrine of unjust enrichment in the context of a sale of a car at auction that mistakenly included a valuable personalised number plate which the buyer refused to return: Cressman v Coys of Kensington (Sales) Ltd [2004] EWCA Civ 47.

Damages

The Court of Appeal decided that where neither the “insurance” and “benevolence" exceptions to the rule against double recovery of damages applied, insurance payments were deductible from damages awarded to an employee injured at work and McCamley v Cammell Laird Shipbuilders Ltd [1990] 1 WLR 963 should no longer be followed: Gaca v Pirelli General Plc [2004] EWCA Civ 373.

The Court of Appeal considered assessment of damages for loss of chance arising from negligence and whether a party could rely on a wrong perpetuated by itself to break the chain of causation in contract and tort, thereby avoiding damages that would otherwise flow from its negligence: Normans Bay Ltd (formerly Illingworth Morris Ltd) v Coudert Brothers [2004] EWCA Civ 215.

Exemplary damages were awarded for the first time in circumstances where a landlord had breached its statutory duty under the Landlord and Tenant Act 1988 by failing to give a decision within reasonable time in response to the tenant’s application for consent to assign its commercial lease: Design Progression Ltd v Thurloe Properties Ltd [2004] EWHC 324.

The Commercial Court assessed damages for conversion of Kuwait Airways’ aircraft spare parts at Kuwait International Airport when Iraq invaded Kuwait in 1990: Kuwait Airways Corp v Iraqi Airways Co (Damages) [2004] EWHC 2603.