Court of Appeal (Civil Division) judgments, 1998

The principle of open justice does not generally give members of the public a right to inspect or copy documents in trial bundles, documents referred to in…

An expert appointed under a contract has exclusive authority over the question actually referred for determination. The scope of that authority depends on the…

An agreement compromising ancillary relief negotiations does not create an ordinary contract enforceable by specific performance. Its purpose is to abbreviate…

Claims against lawyers arising from allegedly negligent conduct of earlier proceedings should first be examined as possible abusive collateral challenges to…

Where an appeal has been decided but the substantive proceedings continue, the court may order taxation of costs while directing that payment is deferred until…

Claims against legal advisers following an earlier judgment or court-approved settlement must first be examined as possible abusive collateral challenges. The…

Appellate courts should be slow to interfere with an ancillary financial-relief award made in the exercise of a trial judge’s wide discretion. A judge may…

Where an agreement requires land to be valued at its open market value by reference to an existing use and subject to a tenancy, those words do not ordinarily…

For design right under Part III of the Copyright, Designs and Patents Act 1988, an independently created design need not be novel. The question is whether…

A late amendment is not available as of right merely because the opposing party can receive its costs. The court must balance justice to the applicant, the…

Liability for knowing receipt requires a direct connection between the receipt and the breach of trust or fiduciary duty. A purchaser who acquires assets for…

A common acquisition of property with an expectation of profit does not, without more, create a partnership. The court must determine whether the parties were…

A contractual right to repayment on demand may coexist with an anticipated duration for an overdraft or bridging facility. An indication that repayment is…

At the permission stage, leave should be granted where it is well and realistically arguable that an unchallenged admission of paternity, incorporated into…

On a renewed application for leave to appeal, the Court of Appeal held that the inclusion or exclusion of VAT from a building contract price depends on the…

Under Partnership Act 1890, partners share equally in capital and profits unless an express or implied agreement provides otherwise. A partner’s greater…

Foreign law is a question of fact, but appellate restraint varies with the nature of the issue. Where the foreign statute is in English and its concepts are…

A tenant exercising the statutory right to a new lease must specify the premium which the tenant genuinely proposes to pay. An opening bid need not be the…

A claim may be struck out as an abuse of process where it could and should have been advanced in earlier concluded proceedings, even if the later claim differs…

There is no presumption in favour of a financial clean break. The court must balance finality against the parties’ continuing financial needs and the policy…

At the interlocutory stage of a libel action, a defence should be struck out only if it is plainly and obviously incapable of succeeding. Qualified privilege…

On an appeal by case stated, the High Court may interfere with Commissioners’ factual conclusions only for an error of law, including a conclusion that no…

An employer providing a reference owes the former employee a duty to take reasonable care. The reference must be fair and must not create an unfair or…

An Employment Tribunal has a broad discretion whether to issue witness summonses. Evidence is not admissible merely because it may have some relevance. The…

Rule 4.11 of the Insolvency Rules 1986 regulates the advertisement required by the rule, ordinarily in the Gazette. The seven-business-day period after service…

Rateable value is assessed by applying the statutory rating hypothesis to the actual hereditament while keeping the hypothetical bargain close to reality.…

Leave to appeal should be refused where proposed grounds disclose no prospect of success and seek to reopen factual findings, credibility assessments, an order…

A contractual break notice must ordinarily be given by the lessee, but it may be given in the name of an agent. Where the agent does not identify the agency…

Information obtained in family proceedings remains confidential unless the court grants leave after balancing confidentiality and frankness against the public…

Under O.59,r.8, the Court of Appeal has a wide jurisdiction to direct service of a notice of appeal on a person who was not a party below. That power may be…

Under section 33 of the Family Law Act 1996, the court must first decide whether failure to make an occupation order would expose the applicant or a relevant…

Order 14 is a summary judgment procedure, not a summary trial. Judgment may be entered where no triable defence exists, including where an earlier legal…

An employer’s common-law duty is to take reasonable care for employees’ safety. It does not require work to be risk-free where the potential injury is…

On a forum non conveniens application, an English defendant must show that a foreign forum is available and clearly and distinctly more appropriate, despite…

For renewal of detention under section 20 of the Mental Health Act 1983, detention need not be continuous. A patient on authorised leave remains detained for…

An outline planning permission may reserve for later approval only matters for which the outline application gives no details. A condition purporting to…

A court has a general discretion to allow amendment of pleadings, including to plead matters arising after the writ. That discretion should be exercised…

Section 38(6) of the Children Act 1989 permits an assessment of a child in the context of the child’s relationship with the parents, including a properly…

An amendment which first alleges intentional wrongdoing introduces a new cause of action where the existing pleading alleges only negligence or other…

Applications to extend time for an appeal require consideration of the length of delay, its reasons, the prospects of success and prejudice, together with all…

A reservation of hunting, shooting, fishing and sporting rights is construed by its terms. Where it expressly includes preserving and rearing game, the right…

In a forum non conveniens application, a claimant’s domestic juridical advantage does not ordinarily justify keeping proceedings in England when a foreign…

Under the Law of Property Act 1925, jurisdiction to discharge a restriction is not necessarily co-extensive with jurisdiction to modify it. The Tribunal must…

An easement of drainage may defend a nuisance claim, but its effect depends on the facts and the scope of the grant. An express easement must be construed by…

Vicarious liability for an employee's sexual assault is not established merely because employment gave the employee access to the victim. The Salmond test asks…

The legality of a citizen’s arrest under section 24(4) and (5) of the Police and Criminal Evidence Act 1984 is determined in the civil proceedings themselves.…

Once a local authority has discharged its homelessness duty by offering suitable accommodation, a further duty arises only if a material change makes the…

Where a contract creates separate charges payable at different times, advance payments cannot be appropriated against other charges or an overall balance…

The classification of a foreign enforcement order depends on its purpose, not its form. An order made in civil contempt proceedings may be an external…

Damages for breach of a landlord’s repairing obligation must, so far as money can, restore the tenant to the position that proper performance would have…

After an asylum claim has been refused and the appellate process exhausted, further representations do not create a merits appeal merely because the applicant…

Leave to appeal should be refused where the proposed grounds disclose no reasonably arguable point. A damages award may take account of compensation already…

In assessing damages for future loss, the court must distinguish between causation and the valuation of a lost chance. Where loss depends on the hypothetical…

In a class 2 case of presumed undue influence, the claimant must establish manifest disadvantage before an equitable transaction can be set aside. That…

For the purposes of correcting a party’s name under Ord.20, r.5(3), a collective title used in group litigation is not misleading merely because the precise…

An employment tribunal is not under a general legal duty to identify and determine every allegation contained in an originating application where the party has…

For UK tax purposes, a foreign silent partnership is not transparent merely because the partner’s return is calculated by reference to the owner’s profits. The…

The common-law power to arrest to prevent an apprehended breach of the peace is exceptional where the person arrested is acting lawfully. A constable must have…

Compensation for unfair dismissal is assessed by reference to loss that is caused by, and attributable to, the dismissal. Obtaining alternative employment does…

Where a patient may be deprived of the opportunity to make an informed choice, a doctor should ordinarily disclose a significant risk which would affect the…

For priority need under section 59(1)(c) of the Housing Act 1985, vulnerability is assessed by asking whether, while homeless, the applicant is less able to…

In a patent action, Order 104 rule 6 does not invariably require every particular of an invalidity objection before discovery. The court must decide whether…

Leave to sue a company in administration should be refused where the proposed claim is not seriously arguable. English law did not then recognise a seriously…

The Norwich Pharmacal jurisdiction requires the third party to have been sufficiently involved in the relevant wrongdoing and the order not to offend the mere…

Financial assistance by a private company for the acquisition of shares is lawful under Companies Act 1985, section 155(2), where the company’s net assets are…

Where a County Court claim falls within the automatic small-claims arbitration procedure, reference occurs without any administrative order. The protection…

Under the Inheritance (Provision for Family and Dependants) Act 1975, an adult child is not required in every case to establish a moral obligation or other…

Under section 64(2) of the Solicitors Act 1974, the court must determine the substance of a client’s request rather than apply an over-technical construction…

A contractual sum is an unenforceable penalty where, judged at the time of contracting, it is extravagant or unconscionable compared with the loss that could…

For limitation purposes, knowledge that an injury is attributable to an act or omission requires only broad knowledge that the injury is capable of being…

Patent claims must be construed purposively from their language read in the context of the specification. Preferred processes and examples cannot be used to…

On an application for leave to appeal in a neighbour dispute, the Court of Appeal will not revisit primary findings of fact where the trial judge heard the…

In claims by secondary victims for psychiatric illness, proximity requires more than a close relationship and foreseeable psychiatric injury. The claimant must…

A restitutionary claim requires enrichment of the defendant, unjustness, and enrichment at the claimant’s expense. A mistaken payment alone is insufficient.…

The pendency of an appeal does not itself justify a stay of execution. A stay is granted only in very special circumstances, such as where compliance would…

Acquiescence in enforcing restrictive covenants depends on whether, in all the circumstances, continued enforcement would be unconscionable. The same test…

A trustee exemption clause in a will is construed according to the natural meaning of its words, although unclear language is treated restrictively. There is…

A Member State may be liable in damages for legislative breaches of Community law where the breach is sufficiently serious. The assessment is objective and…

Commissions earned through work performed before termination remain wages even where they become payable after the contract ends. The statutory definition…

When valuing land subject to a deemed compulsory acquisition, the Point Gourde principle excludes only an increase in value entirely attributable to the scheme…

An appellate court may refuse further time and leave to appeal where the proposed defence is speculative, unsupported by the evidence and raised only after…

An appellate court may refuse to adjourn and dismiss an appeal where the appellant gives only very late notice of non-attendance and offers no adequate reason…

In construing linked building contracts, the primary management contract must be considered first, with its effect then reconciled with the works contract.…

A court may draw adverse inferences from the absence or silence of a witness expected to give material evidence. Such inferences may strengthen the opposing…

The indemnity principle limits party-and-party costs to compensation for what the receiving party has incurred or is obliged to pay. It does not permit a bonus…

Under Part II of the Landlord and Tenant Act 1954, a landlord relying on section 30(1)(f) must establish a firm and settled intention to carry out the proposed…

Facultative reinsurance contracts defined by annual periods provide cover only for physical loss or damage occurring during the relevant period. The phrase…

Damages for private nuisance compensate the claimant for the actual loss of enjoyment suffered. They do not punish the defendant and should not be reduced…

Opposition proceedings before the European Patent Office do not create cause of action estoppel or issue estoppel in later national revocation proceedings. The…

Where solicitors claim substantial remuneration without an agreed fee, the court should not enter judgment for the invoiced sum without judicial assessment.…

A court may decline to determine an appeal concerning a discretionary declaration under Child Abduction and Custody Act 1984, section 8, where the declaration…

A mortgagee owes an equitable duty to take reasonable care to obtain a proper price when exercising a power of sale. That duty does not generally require the…

Absolute immunity from suit for communications to a child-protection information service should not be granted merely because the underlying public interest is…

For the purposes of compensation under Part II of the Landlord and Tenant Act 1954, business occupation is a context-sensitive concept. A tenant need not…

In a professional-negligence claim for loss of a litigation opportunity, the claimant must show that the lost claim or defence had a real and substantial…

Criticism of a product does not ordinarily amount to libel of its distributor or retailer. The publication must convey an imputation of culpable…

A delay of exceptional length in delivering a reserved judgment may materially weaken the trial judge’s advantage in assessing evidence. Where the delay…

Order 15 rule 7(2) of the Rules of the Supreme Court permits substitution where an existing interest or liability has been assigned, transmitted or devolved.…

The meaning of costs provisions in a compromise order depends principally on the agreement embodied in the order. Solicitors’ fees reasonably incurred in…

Under the Education Act 1996, a local education authority is not required to name a school in every statement of special educational needs. The authority must…

For the four-year enforcement limit, self-contained units may constitute separate dwellinghouses even where they are occupied only for holidays or temporary…

In a split personal-injury trial, costs should reflect the substantive issue on which the parties essentially won or lost, rather than merely the existence of…

In deciding whether a person became intentionally homeless, a local housing authority must assess the individual circumstances and whether it was reasonable to…

In medical negligence claims, res ipsa loquitur is a convenient description of an inference from proved facts, not a rule shifting the legal burden of proof.…

In medical negligence claims, res ipsa loquitur is a convenient description of facts capable of supporting a prima facie inference of negligence. It is not a…

An employee restraint is enforceable only where it protects a legitimate proprietary interest, such as confidential information or customer connections, and…

A contractual clause making the reinsured the sole judge of what constitutes an event may entrust it with questions of fact, construction and mixed fact and…

An irregular judgment need not automatically be set aside where the defendant would inevitably lose on a properly argued application for summary judgment. The…

When deciding whether to set aside a judgment, the court must assess the character of the judgment and the circumstances of the case. The distinction between…

For the purposes of the Income Support (General) Regulations 1987, a claimant does not ordinarily become habitually resident in the United Kingdom immediately…

When determining contact arrangements, a court assessing the risk of abduction or other harm must base that assessment on findings of fact. Where a…

Where negligence causes physical damage to property, the reasonable cost of repair or reinstatement is ordinarily the measure of loss. If the owner reasonably…

Under Rules of the Supreme Court Order 29, rule 11, satisfaction of the threshold conditions gives the court a discretion, rather than an automatic duty, to…

Under the maternity provisions of the Employment Protection (Consolidation) Act 1978, an eligible employee exercises her right to return to work by giving the…

Negligence in product liability remains a question of fact. Once a specific manufacturing defect is proved, the claimant need not identify the individual…

Whether noise constitutes a private nuisance depends on the standards of the average person, having regard to the character of the neighbourhood and the…

Inordinate and inexcusable delay, however great, does not alone amount to abuse of process. Delay accompanied by complete or wholesale disregard of court rules…

Defamatory meaning is assessed by the natural and ordinary meaning conveyed to the ordinary reasonable viewer watching a television programme once. The viewer…

Statutory authority does not by itself immunise an undertaking from liability in nuisance. Where Parliament has authorised works, immunity depends on the…