References: [2011] UKSC 2, UKSC 2009/0175, [2011] ICR 224, [2011] 2 All ER 1, [2011] 2 AC 146, [2011] 2 WLR 103
Links: Bailii, Bailii Summ, SC Summary, SC
Coram: Lord Phillips, President, Lord Rodger, Lord Collins, Lord Clarke, Lord Dyson
Ratio: The appellant chartered accountant had been convicted in Jersey after removing documents from his offices relating to a disputed trust and in breach of an order from his professional institute. The court now considered the relevance and application of the principles of autrefois acquit, res judicata and abuse of process after the Institute began a first and now a second set of disciplinary proceedings, the appellant saying that the issues arose from the same matters. The Institute said that the two complaints were under different regulations. The first complaint had failed through their error.
Held: The institiute’s appeal failed. The first decision of the disciplinary panel was both final and as to the merits, the conviction having no indictable parallel within England and Wales. The principles of res judicata and autrefois convict do apply to professional disciplinary proceedings. All the constituent elements of cause of action estoppel were established on the facts. Whether a public interest exception could be created to established law was properly for Parliament and not the courts.
Jurisdiction: England and Wales
This case cites:

• Cited – Thoday v Thoday CA ([1964] P 181, [1964] 1 All ER 341)
  The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
• Cited – Andreas Chry Andreou v Institute of Chartered Accountants In England and Wales CA (Bailii, [1997] EWCA Civ 2189, [1998] 1 All ER 14)
  The appeallant having been found guilty in professional disciplinary proceedings sought to appeal, but was refused by the defendant saying that it had no discretion to extend the time for an appeal.
  Held: The Institute exercised its . .
• Cited – Connelly v Director of Public Prosecutions HL ([1964] 2 AC 1254, [1964] 2 All ER 401)
  The defendant had been tried for and acquitted of murder. The prosecution then sought to have him tried for robbery out of the same alleged facts. The House considered his plea of autrefois convict.
  Held: The majority identified a narrow . .
• Cited – Thrasyvoulou v Secretary of State for the Environment HL ([1990] 2 AC 273)
  A building owner appealed against enforcement notices which alleged that there had been a material change of use of his buildings in 1982. This notice was issued by a planning authority. As a result of the appeal an inspector determined that the . .
• Cited – Meyers v Casey (Austlii, [1913] HCA 50, (1913) 17 CLR 90)
  (High Court of Australia) The Court considered a decision of the committee of the Victoria Racing Club. Isaac J said of objections considered by the committee: ‘They are, by reason of the committee’s decision, res judicatae, as much as if instead of . .
• Cited – Harry Lee Wee v The Law Society of Singapore PC (Bailii, [1984] UKPC 50, [1985] 1 WLR 362, Bailii, [1984] UKPC 50)
  (Singapore) The principles of autrefois acquit applied to professional disciplinary proceedings. Lord Bridge said: ‘No one would dispute that the doctrine of autrefois convict and acquit is applicable to disciplinary proceedings under a statutory . .
• Cited – Trade Indemnity Co Ltd v Workington Harbour and Dock Board (No 2) HL ([1938] 2 All ER 101)
  The plaintiffs’ action was derived from a bond given by the defendants guaranteeing a contractor’s performance in building a dock for the plaintiffs. The bond provided that a certificate which complied with certain criteria would prove the amount . .
• Cited – Arnold v National Westminster Bank Plc HL ([1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177)
  Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
• Cited – Dunn v Murray (Commonlii, [1829] EngR 602, (1829) 9 B and C 780, (1829) 109 ER 290)
  Declaration stated, that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant in a certain capacity for a year, at the rate of five guineas per week throughout the year, defendant . .
• Cited – Bolton v The Law Society CA (Times 08-Dec-93, [1994] 1 WLR 512, Bailii, [1993] EWCA Civ 32, [1994] 2 All ER 486, [1994] COD 295)
  The solicitor who had been admitted to the Roll for two years had disbursed clients money to relatives, as part of the conveyance of property without adequate security but in the expectation that the money would be repaid. The Tribunal found that . .
• Cited – Fidelitas Shipping Co Ltd v V/O Exportchleb CA ([1966] 1 QB 630, [1965] 2 WLR 1059, [1965] 2 All ER 4, [1961] 1 Lloyds Rep 223)
  Where there is an award that is on its face an interim award, then the arbitrator is only functus officio with respect to the issues dealt with in that interim award and retains the authority to deal with the remaining matters. Issue estoppel . .
• Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL (Times 08-Nov-00, Gazette 30-Nov-00, House of Lords, Bailii, [2000] UKHL 56, [2000] 1 WLR 2222, [2000] 1 All ER 27)
  Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
• Cited – Dunn v Murray (Commonlii, [1829] EngR 602, (1829) 9 B and C 780, (1829) 109 ER 290)
  Declaration stated, that in consideration that the plaintiff, at the request of the defendant, would enter into the employ of the defendant in a certain capacity for a year, at the rate of five guineas per week throughout the year, defendant . .

(This list may be incomplete)
This case is cited by:

• Cited – Christou and Another v London Borough of Haringey EAT (Bailii, [2012] UKEAT 0298 – 11 – 2505)
  EAT UNFAIR DISMISSAL – Reasonableness of dismissal
  The Appellants, the social worker responsible for the care of Baby P and her team manager, were held not to have been unfairly dismissed by Haringey for . .

(This list may be incomplete)
Leading Case
Last Update: 24 December 2018
Ref: 428045

The post Coke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales: SC 19 Jan 2011 appeared first on swarb.co.uk.

References: [2011] UKEAT 0382 – 10 – 1703
Links: Bailii
Coram: Silber J
Ratio: EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by the Respondent he submitted an ET1 alleging he had been laid off.
By a judgment of Employment Judge Salter (‘the first judgment’), it was held that the Claimant was not entitled to redundancy pay. The Claimant was dismissed because of retirement with effect from 31 July 2009.
He then submitted a new ET1 claiming, among other things, four different types of unfair dismissal, notice pay in breach of contract and a guarantee payment.
The Respondent applies to have the claims struck out as being res judicata by reason of the first judgment on alternatively as an abuse in the Henderson v Henderson sense. The application was granted save in respect of the guarantee payment. The Claimant appealed and the Respondent cross-appealed in respect of the guarantee payment.
Held –
1. Appeal allowed as:
(a) Res judicata did not apply as although the first Tribunal held that the Claimant was not dismissed by reason of redundancy, this did not create an estoppel as (i) this finding was not necessary for the decision as the claim was layoff (Arnold v National Westminster Bank [1991] 2 AC 93, 105 applied; and (ii) In any event, the first Tribunal did not have jurisdiction to deal with a redundancy as it was premature (Watts v Rubery Owen [1997] 2 All ER 1, applied);
(b) This was not a case of abuse as there was no oppressive conduct and this was not a case of the Claimant abusing the court process (Johnson v Gore-Wood [2002] 2 AC 1, 31 applied).
The cross-appeal was dismissed as the Employment Judge was entitled to conclude that it was not an abuse in the Henderson v Henderson sense to pursue this claim in the second action.
Jurisdiction: England and Wales
This case cites:

• Cited – Henderson v Henderson ((1843) 3 Hare 100, [1843] EngR 917, Commonlii, (1843) 67 ER 313)
  The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
  Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
• Still Good Law – Watts v Rubery Owen Conveyancer Limited EAT ([1977] 2 All ER 1)
  The claimant sought a redundancy payment. The employer said that his employment had not yet finished.
  Held: Kilner Brown J said: ‘The effect of these cases is that where an application is made to an Industrial Tribunal before the act of . .
• Mentioned – Pritchard-Rhodes Limited v Boon and Milton EAT ([1979] IRLR 19)
  An application to the Industrial Tribunal for a redundancy payment was not effective because it failed to comply with the statutory requirements which, on their true construction, provided that an application could not be effectively made to an . .
• Cited – O’Laoire v Jackel International Limited (No 2) CA ([1991] 1 ICR 718, [1991] IRLR 170 CA)
  On taking up employment the plaintiff was told he would later be appointed managing director. His employment was terminated, and he sought damages.
  Held: The defendant was estopped from denying it would appoint him managing director, since . .
• Cited – Arnold v National Westminster Bank Plc HL ([1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177)
  Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
• Cited – Danyluk v Ainsworth Technologies Inc ([2001] 2 SCR 460, 2001 SCC 44, Canlii)
  Canlii (Supreme Court of Canada) Administrative law – Issue estoppel – Employee filing complaint against employer under Employment Standards Act seeking unpaid wages and commissions – Employee subsequently . .
• Cited – Meek v City of Birmingham District Council CA (Bailii, [1987] EWCA Civ 9, [1987] IRLR 250)
  Tribunals, when giving their decisions, are required to do no more than to make clear their findings of fact and to answer any question of law raised.
  Bingham LJ said: ‘It has on a number of occasions been made plain that the decision of an . .
• Cited – Chapman v Simon CA ([1994] IRLR 124, FA 5)
  The court considered the approach where a party sought to raise on appeal a complaint not made in the case presented to the tribunal.
  Held: An Employment Tribunal must decide the issues which are put before it and should not decide issues . .
• Cited – South Durham Health Authority v Unison EAT (Bailii, [1995] UKEAT 932 – 94 – 0602)
  Mummery J P said: ‘Similarly in the case of entitlement to redundancy payments discussed in the authorities relied on by [counsel] there is no right of action, no entitlement to the payments before the date of termination has arrived. An originating . .
• Cited – Williams, Regina v CACD (Bailii, [2010] EWCA Crim 2552, [2011] 1 WLR 588, (2010) 174 JP 606)
  The offence of causing death by driving while unlicensed, disqualified or uninsured, is committed if the driver is unlicensed, disqualified or uninsured and if the driving is a cause of death in the sense that it was ‘more than negligible or de . .
• Cited – Watt (Formerly Carter) v Ahsan HL (Bailii, [2007] UKHL 51, Times 27-Nov-07, [2008] 1 AC 696, HL, [2008] ICR 82, [2008] 1 All ER 869, [2008] IRLR 243, [2008] 2 WLR 17)
  The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
• Cited – Manson v Vooght; Coopers and Lybrand International; Coopers and Lybrand International Trading As Cork Gully and Barclays Bank Plc CA (Times 20-Nov-98, Bailii, [1998] EWCA Civ 1665, [1999] BPIR 376)
  The claimant was the former managing director of a company, which had been placed into administrative receivership. The claims were for breach of contract and conversion (in relation to antique furniture) and they were brought against the . .
• Cited – HM Prison Service v Barua EAT (Bailii, [2006] UKEAT 0387 – 06 – 1511, [2007] ICR 671, [2007] IRLR 4)
  EAT Time Limits
  Practice and Procedure – 2002 Act and pre-action requirements
  Unfair Dismissal – Constructive dismissal
  For the purpose of the extension of the time afforded by reg. 15 of the . .
• Cited – Johnson v Gore Wood and Co HL (Gazette 05-Jan-01, House of Lords, Times 20-Dec-00, Gazette 22-Feb-01, Bailii, [2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31)
  A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
  Held: It need not be an abuse of the court for a shareholder . .
• Cited – Morris v Wentworth-Stanley CA (Bailii, [1998] EWCA Civ 1427, [1999] QB 1004, [1999] 2 WLR 470)
  Two actions had been brought by a contractor against the partners in a farming partnership. Those actions were consolidated. One of the partners died and when the plaintiff found that out he discontinued his claims against the deceased partner and . .
• Cited – Bradford and Bingley Building Society v Seddon and Hancock; Walsh and Rhodes (Trading As Hancocks (a Firm) CA (Times 30-Mar-99, Gazette 14-Apr-99, Bailii, [1999] 1 WLR 1482, [1999] EWCA Civ 944)
  There was an unsatisfied judgment on a claim by a defendant in an earlier action against a third party. In a subsequent action against the defendant the latter issued third party proceedings against the original and different third parties.
  

(This list may be incomplete)

Last Update: 25 December 2018
Ref: 430660

The post Foster v Bon Groundwork Ltd: EAT 17 Mar 2011 appeared first on swarb.co.uk.

References: [2011] EWCA Civ 353, [2012] Bus LR 266, [2012] 1 WLR 472
Links: Bailii
Coram: Rix, Carnwath, Stanley Burnton LJJ
Ratio: The court was asked to construe a clause governing the calculation of an ‘additional fee’ for financial services provided by ING Bank NV (‘ING’) to Ros Roca SA (‘Ros Roca’). In monetary terms ING claims 6,700,000 Euros; on Ros Roca’s interpretation, upheld by the judge, the correct amount is 943,922.44 euros. The cross-appeal is based on the contention that, even if ING succeeds on the construction issue, it is precluded by estoppel from relying on that construction.
‘Construction cannot be pushed beyond its proper limits in pursuit of remedying what is perceived to be a flaw in the working of a contract. It is now clear, in a less literalist era, that where a contract makes commercial nonsense on its own terms, it should be interpreted if possible in a way which avoids the absurdity.’
Jurisdiction: England and Wales

Last Update: 26 December 2018
Ref: 431608

The post Ing Bank Nv v Ros Roca Sa: CA 31 Mar 2011 appeared first on swarb.co.uk.

References: [2011] EWHC 1 (Ch)
Links: Bailii
Ratio: The claimant asserted a proprietary estoppel in land inherited by the defendants.

Last Update: 27 December 2018
Ref: 440702

The post Murphy v Rayner and Others: ChD 18 Jan 2011 appeared first on swarb.co.uk.

References: [2011] EWHC 2233 (Ch)
Links: Bailii
Coram: Knowles QC J
Ratio: The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of process, res judicata and estoppel, and requested a strike out of the claim.
Held: There could be no action or issue estoppel. The allegations included matters not previously at issue: ‘the appeal must be allowed. I view that result with satisfaction. Many might ask why the Bank’s response to realising that it had provided incorrect information to Blackburne J and to the (its) Customer would not be to seek to put that right. It is obvious that had the Bank provided correct information Blackburne J would have ensured there was a means by which its entitlement to charge interest at that rate could be examined. Putting right what the Bank had done wrong would involve the Bank’s supporting a course that would allow examination of its entitlement to charge interest at 25%, rather than seeking to take advantage its own error by arguing that the matter was closed.’
Jurisdiction: England and Wales
This case cites:

• Cited – Henderson v Henderson ((1843) 3 Hare 100, [1843] EngR 917, Commonlii, (1843) 67 ER 313)
  The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
  Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
• Cited – Johnson v Gore Wood and Co HL (Gazette 05-Jan-01, House of Lords, Times 20-Dec-00, Gazette 22-Feb-01, Bailii, [2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31)
  A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
  Held: It need not be an abuse of the court for a shareholder . .
• Cited – Republic of India and Others v India Steamship Co Ltd (‘The Indian Endurance and The Indian Grace’) (No 1) HL (Gazette 07-Apr-93, Ind Summary 29-Mar-93, [1993] 2 WLR 461, [1993] AC 410, [1993] 1 All ER 998)
  Munitions were being carried to Cochin on board the defendants’ vessel. Some was jettisoned in a fire and the remainder was damaged. The cargo owners sought damages in India for short delivery under the bills of lading, as to the jettisoned cargo . .
• Cited – Regina v Inhabitants of the Township of Hartington Middle Quarter ([1855] 4 ECB 780, [1855] EngR 264, Commonlii, (1855) 4 El and Bl 780, (1855) 119 ER 288)
  Coleridge J said: ‘The question then is, whether the former judgment concludes, not merely as to the point actually decided, but as to a matter which it was necessary to decide, and which was actually decided, as the groundwork of the decision . .
• Cited – Thoday v Thoday CA ([1964] P 181, [1964] 1 All ER 341)
  The court discussed the difference between issue estoppel, and action estoppel: ‘The particular type of estoppel relied upon by the husband is estoppel per rem judicatam. This is a generic term which in modern law includes two species. The first . .
• Cited – Brisbane City Council v Attorney General for Queensland PC ([1979] AC 411, [1978] 3 All ER 30, [1978] 3 WLR 299)
  Lord Wilberforce approved Somervell LJ’s words in Greenhalgh: ‘This is the true basis of the doctrine in Henderson v Henderson and it ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party . .
• Cited – Letang v Cooper CA ([1965] 1 QB 232, Hamlyn, Bailii, [1964] EWCA Civ 5, [1964] 2 Lloyd’s Rep 339, [1964] 2 All ER 929, [1964] 3 WLR 573)
  The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
  Held: Trespass is strictly speaking . .

(This list may be incomplete)

Last Update: 28 December 2018
Ref: 443238

The post Sarwar v The Royal Bank of Scotland Plc (Rev 1): ChD 27 Jul 2011 appeared first on swarb.co.uk.

References: [2012] EWHC 7 (Comm)
Links: Bailii
Coram: Flaux J
Ratio: Application to strike out paragraphs in claim associated with Lehman Bothers for issue estoppel.
This case is cited by:

• See Also – Camerata Property Inc v Credit Suisse Securities (Europe) Ltd ComC (Bailii, [2013] EWHC 29 (Comm))
  . .

(This list may be incomplete)

Last Update: 29 December 2018
Ref: 450479

The post Camerata Property Inc v Credit Suisse Securities (Europe) Ltd: ComC 20 Jan 2012 appeared first on swarb.co.uk.

References: [2012] EWCA Civ 1140
Links: Bailii
Coram: Sir Nicholas Wall, Arden, Sullivan LJJ
Ratio:
Jurisdiction: England and Wales

Last Update: 05 January 2019
Ref: 463701

The post Suggitt v Suggitt and Another: CA 19 Jun 2012 appeared first on swarb.co.uk.

References: [2012] EWCA Civ 1029
Links: Bailii
Coram: Lord Neuberger MR, McFarlane, Lewison LJJ
Ratio:
Jurisdiction: England and Wales

Last Update: 05 January 2019
Ref: 463697

The post Shirt v Shirt: CA 27 Mar 2012 appeared first on swarb.co.uk.

References: [2012] EWCA Civ 1208
Links: Bailii
Coram: Lloyd, Richards, Elias LJJ
Ratio: The respondents had gone to share the father’s house. On his death they claimed possession under an estoppel. The appellant executors now appealed against refusal of possession, challenging the judge’s interpretation of the evidence.
Jurisdiction: England and Wales

Last Update: 05 January 2019
Ref: 464651

The post Bradbury and Others v Taylor and Another: CA 4 Oct 2012 appeared first on swarb.co.uk.

References: [2013] EWCA Civ 239
Links: Bailii
Coram: Patten, Kitchin, McCombe LJJ
Ratio:
Jurisdiction: England and Wales

Last Update: 06 January 2019
Ref: 472028

The post Kim and Another v Chasewood Park Residents Ltd: CA 26 Mar 2013 appeared first on swarb.co.uk.

References: Times 17-Jul-2002
Coram: Mr Justice Ferris
Ratio: The bankrupt had received his discharge from the bankruptcy and the debts associated. After the discharge he received a statutory demand from the trustees of a pension fund claiming sums from him alleging his dishonest breach of trust. He replied by saying that he had been discharged.
Held: To constitute a ‘fraudulent breach of trust’ under the Act, the behaviour had to have been deliberate and dishonest. An alternative view would have been against the spirit behind the 1986 legislation. The Financial Services Ombudsman had made a finding that he had been in ‘wilful default’ but that was not so equivalent a finding as to allow an estoppel as to whether he had acted fraudulently. The debt was in dispute, and the statutory demand was set aside.
Statutes: Insolvency Act 1986 281(1) 281(3)
Jurisdiction: England and Wales

Last Update: 07 January 2019
Ref: 174374

The post Woodland-Ferrari v UCL Group Retirement Benefits Scheme: ChD 5 Jul 2002 appeared first on swarb.co.uk.

References: [2013] WLR (D) 514, [2013] UKPC 22, [2014] 2 WLR 84, [2013] 4 All ER 659, [2014] 1 AC 436
Links: Bailii, WLRD
Coram: Lord Neuberger of Abbotsbury PSC, Lord Wilson, Lord Reed, Lord Carnwath, Lord Toulson JJSC
Ratio: (Gibraltar) Parties to a contract for the sale of land including the appellant company declared a purchase price which both knew to be false. Faced with insolvency proceedings, the appellant sought to challenge a claim for the full amount.
Held: The company’s appeal succeeded. Parties are free to contract on their own terms and the court’s role was to enforce them. There is nothing contrary to public policy in parties agreeing that certain facts were to be treated as established for the purposes of their transaction, although they knew the facts to be otherwise.
The doctrine of estoppel by deed overlaps with the doctrines of estoppel by representation and estoppel by convention. The basis of estoppel by representation is that the representor induced the representee to enter into the relevant transaction on the faith of a statement in circumstances which would make it unfair that the representor should go back on the statement. The basis of estoppel by convention is that the parties expressly or impliedly agreed that a certain state of facts or law was to be treated as true for the purposes of the transaction, and that it would be unfair for one or other to resile from the basis on which the transaction had proceeded. The w’aiver’ analysis did not fit naturally with the language of the deed of assignment and the Board considers that the Court of Appeal was justified in rejecting the company’s argument that there was some form of collateral waiver.
Jurisdiction: Commonwealth
This case cites:

• Cited – Brooke v Haynes CA ([1868] 6 LR Eq 25)
  Lord Romilly MR said: ‘A party to a deed is not estopped in equity from averring against or offering evidence to controvert a recital therein contrary to the fact, which has been introduced into the deed by mistake of fact, and not through fraud or . .
• Cited – Greer v Kettle HL ([1938] AC 156, 158 LT 433)
  A corporate borrower agreed to repay andpound;250,000 with interest and to charge certain specified shares in another company as security. A guarantee was procured from another company, Parent Trust. The deed of guarantee recited that the lender had . .
• Cited – Grundt v Great Boulder Proprietary Gold Mines Limited ((1937) 59 CLR 641, [1937] HCA 58, Austlii)
  (High Court of Australia) Parties to a transaction may choose to enter into it on the basis that certain facts are to be treated as correct as between themselves for the purpose of the transaction, although both know that they are contrary to the . .
• Cited – Carpenter v Buller (, Commonlii, [1841] EngR 552, (1841) 8 M and W 209, (1841) 151 ER 1013)
  The defence to an action of trespass was that the defendant was seised of the land in question. He produced a deed, made between himself, the plaintiff and a third party, in which this was stated to be the case
  Held: The plaintiff was not . .
• Cited – Stroughill v Buck ([1850] EngR 295, Commonlii, (1850) 14 QB 781, (1850) 117 ER 301)
  Patteson J said: ‘When a recital is intended to be a statement which all parties to the deed have mutually agreed to admit as true, it is an estoppel upon all. But, when it is intended to be the statement of one party only, the estoppel is confined . .
• Cited – Horton v The Westminster Improvement Commissioners ([1852] EngR 658, Commonlii, (1853) 7 Exch 780, (1852) 155 ER 1165)
  The plaintiff was assignee of the defendants’ bond to A to pay andpound;10,000. It recited that the defendants had borrowed andpound;5,000 from A for the purposes of carrying out works under the Westminster Improvement Acts 1845 and 1847. The . .
• Cited – M’Cance v The London And North Western Railway Company ([1864] EngR 595, Commonlii, (1864) 3 H and C 343, (1864) 159 ER 563)
  The plaintff contracted with the defendant for the transport of horses, understating their value. On their loss, the plaintiff sought their full value. The defendant had succeeded in limiting the award to the value stated.
  Held: Williams J . .
• Cited – Central Newbury Car Auctions Limited v Unity Finance Limited CA ([1957] 1 QB 371)
  The defendant finance company alleged that the plaintiff car dealer, by its conduct, was estopped from denying the authority of their (rogue) customer to sell the car at issue, because they had permitted the customer, unkown to them, to take . .
• Cited – Ferrier v Stewart ([1912] 15 CLR 32, [1912] HCA 47, Austlii)
  High Court of Australia – The plaintiffs were the surviving members of a firm, owed money by the defendant’s husband confirmed promissory notes. The firm extend his credit against new promissory notes, provided that they were indorsed by the . .

(This list may be incomplete)
This case is cited by:

• Cited – Richards v Wood CA (Bailii, [2014] EWCA Civ 327)
  The defendants had purchased their council house with financial asistance from their son, the claimant. He now asserted that a trust existed in the property in his favour.
  Held: ‘unless there is a secure tenancy the statutory right to buy . .

(This list may be incomplete)

Last Update: 23 January 2019
Ref: 513390

The post Prime Sight Ltd v Lavarello: PC 9 Jul 2013 appeared first on swarb.co.uk.

References: [2011] EWHC 3848 (Ch), [2012] 1 WLR 1309
Links: Bailii
Coram: Strauss QC J
Ratio: The parties disputed the validity of a will, and also whether lands in the estate were subject to a trust of proprietary estoppel.

Last Update: 24 January 2019
Ref: 515341

The post St John Webster v Ashcroft, Penley, and others: ChD 20 Dec 2011 appeared first on swarb.co.uk.

References: [2014] EWHC 1056 (Ch)
Links: Bailii
Coram: Richard Spearman QC
Ratio: The court heard a dispute as to inter-company transactions between two companies in a group of companies, all owned and controlled by members of the same family. The Claimants contended that the transactions gave rise to a debt owed by the holding company to one of the subsidiaries, and to claims against the directors of the subsidiary for breaches of the duties that they owed to the subsidiary (and to its creditors). The Defendants contended the contrary, and that the Claimants were estopped from bringing these claims in any event.

Last Update: 27 January 2019
Ref: 523661

The post McTear and Another v Engelhard and Others: ChD 10 Apr 2014 appeared first on swarb.co.uk.

References: [2015] 1 Ch 212, [2014] 3 WLR 1469, [2014] Pens LR 265, [2014] EWHC 1178 (Ch), [2014] WLR(D) 174
Links: Bailii, WLRD
Coram: Newey J
Ratio: The court was asked whether certain documents constituting a pension scheme had been effectively executed. They had been signed, but the signatures lacked the necessary witnessing. The scheme members claimed estoppel against the signatories.
Held: There could be no estoppel where the non-compliance where a document does not even appear to comply with the 1989 Act on its face.
Distinguishing Shah v Shah, Newey J said: ‘there are circumstances in which a person can be estopped from denying that a document was executed in accordance with the requirements of section 1 of the 1989 Act. It is also apparent from Pill LJ’s judgment that attestation is less crucial than signature. On the other hand, Pill LJ did not decide that estoppel can be used in response to every sort of failure to comply with the 1989 Act. To the contrary, he expressed his conclusion narrowly: he was unable to detect a statutory intention ‘totally’ to exclude the operation of an estoppel in relation to the application of section 1 or to exclude it ‘in present circumstances’. It seems fair, moreover, to infer that Pill LJ would not have considered estoppel applicable if the defendants had not even signed the ‘deed’. In Pill LJ’s view, ‘a document cannot be a deed in the absence of a signature’ and the public interest lies in the requirement for a signature.’
The failure of the estoppel was explained: ‘i) To state the obvious, Parliament has decided that, for an individual validly to execute a deed, he must sign ‘in the presence of a witness who attests the signature’. That requirement has an evidential purpose: as Pill LJ noted in Shah v Shah, it ‘limits the scope for disputes as to whether the document was signed and the circumstances in which it was signed’ and ‘gives some, but not complete, protection to other parties to the deed who can have more confidence in the genuineness of the signature by reason of the attestation’. As Pill LJ further noted, the requirement also ‘gives some, but not complete, protection to a potential signatory who may be under a disability, either permanent or temporary’. The Law Commission thought, too, that the need for attestation would ’emphasise to the person executing the deed the importance of his act’ (see paragraph 8.3(i) of the Law Commission’s Working Paper No 93: Transfer of Land: Formalities for Deeds and Escrows (1985));
ii) Fulfilment of Parliament’s and the Law Commission’s objectives would be undermined, potentially to a serious extent, if estoppel could be invoked in circumstances such as those in the present case;
iii) Shah v Shah shows, of course, that a person can sometimes be estopped from denying due attestation. The document with which the Court was concerned in that case appeared, however, to be valid. Accordingly, Pill LJ said that failure to comply with the formality of attestation should not in itself prevent a party into whose possession ‘an apparently valid deed’ has come from alleging that the signatory should not be permitted to rely on the absence of attestation in his presence. He also spoke of ‘an apparently valid deed’ in the next sentence of his judgment;
iv) The ‘deeds’ at issue in the present case are not ‘apparently valid’. It can be seen from each document that it was not executed in accordance with the 1989 Act. This distinction from Shah v Shah is a significant one. If estoppel can be invoked in relation to documents that are not ‘apparently valid’, the documents cannot necessarily be taken at face value. ‘[A]s far as possible,’ however, ‘it should be clear on the face of the document whether or not it has been validly witnessed’ (see paragraph 8.3(i) of the Law Commission working paper). That is especially so since the validity of a deed can matter for many years, and those considering ‘deeds’ long after they have been executed may well have no personal knowledge of the circumstances in which they were executed and access to little or no contemporary correspondence;
v) If estoppel were available in circumstances such as those in the present case, a party to a ‘deed’ who had not himself executed the document in accordance with section 1 of the 1989 Act could choose whether or not the document should be treated as valid. If it turned out to be in his interests to disavow the document, he could do so. If, on the other hand, the document proved to be advantageous to him, he could invoke estoppel. To take an example close to the facts of the present case, if a ‘deed’ provided for a pension scheme to become money purchase rather than final salary, an employer who had signed without having his signature witnessed could wait and see whether the change was, in the event, beneficial to him;
vi) Section 1 of the 1989 Act was in part designed to achieve certainty. It could, however, have the opposite consequence if estoppel were available in circumstances such as those in the present case. The effectiveness of a ‘deed’ that had not, on the face of it, been validly executed could be left in doubt.
Statutes: Law of Property (Miscellaneous Provisions) Act 1989 1(3)
Jurisdiction: England and Wales
This case cites:

• Explained – Shah v Shah CA (Times 15-May-01, Bailii, [2002] QB 35, [2001] EWCA Civ 527, [2001] 3 WLR 31, [2001] 4 All ER 138)
  The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .

(This list may be incomplete)
This case is cited by:

• Applied – Bank of Scotland Plc v Waugh and Others ChD (Bailii, [2014] EWHC 2117 (Ch))
  The defendants had charged a property to the claimant bank to secure a guarantee of borrowings. The signatures were not witnessed as required under section 1(3) of the 1989 Act, and there were other misdescriptions. The bank sought a declaration as . .

(This list may be incomplete)

Last Update: 27 January 2019
Ref: 523772

The post Briggs and Others v Gleeds (Head Office) and Others: ChD 15 Apr 2014 appeared first on swarb.co.uk.

References: [2014] EWHC 1167 (Ch)
Links: Bailii
Coram: Mann J
Ratio: Application by the first defendant to strike out the claim against him on the basis that the claims were barred by cause of action estoppel or abuse of process.

Last Update: 27 January 2019
Ref: 523775

The post Gaydamak v Leviev: ChD 15 Apr 2014 appeared first on swarb.co.uk.

References: [2014] EWCA Civ 568
Links: Bailii
Coram: Richards, Underhill, Floyd LJJ
Ratio: The claimant asserted a proprietary estoppel in her parents’ farm. The parents now appealed against an order made accordingly.
Jurisdiction: England and Wales

Last Update: 28 January 2019
Ref: 525110

The post Davies and Another v Davies: CA 7 May 2014 appeared first on swarb.co.uk.

References: [2014] EWHC 1880 (Comm)
Links: Bailii
Coram: Popplewell J
Ratio: The claimant sought to enforce a settlement agreement. The defendants argued that there had been a collateral re-assurance that they would not be pursued for the sum claimed.

Last Update: 28 January 2019
Ref: 526517

The post BMIC Ltd v Chinnakannan Sivasankaran Siva Ltd: ComC 12 Jun 2014 appeared first on swarb.co.uk.

References: [2014] EWHC 2117 (Ch)
Links: Bailii
Coram: Behrens HHJ
Ratio: The defendants had charged a property to the claimant bank to secure a guarantee of borrowings. The signatures were not witnessed as required under section 1(3) of the 1989 Act, and there were other misdescriptions. The bank sought a declaration as to the validity of the charge, and now applied for summary judgment.
Held: Applying section 1(3) of the 1989 Act, the charge was ineffective to convey a legal estate. Nevertheless registration had been completed, and the bank was able to rely on section 51 of the 2002 Act to give it effect.
The trustees were not estopped from relying on the invalidity of the charge (Briggs v Gleeds applied).
The sums were dueto te bank. The Trustees were not estopped from relying upon the failure to have te execution of the deed witnessed, but, having been registered, the Bank was entitled to rely on the Registration to have an equitable charge.
Statutes: Law of Property (Miscellaneous Provisions) Act 1989 1(3), Law of Property Act 1925 52, Land Registration Act 2002 51
Jurisdiction: England and Wales
This case cites:

• Distinguished – Shah v Shah CA (Times 15-May-01, Bailii, [2002] QB 35, [2001] EWCA Civ 527, [2001] 3 WLR 31, [2001] 4 All ER 138)
  The court was asked as to the enforceability of a document under the terms of which the defendants were to make a payment of pounds 1.5 million to the claimant. The document was described as a deed and provided for each defendant to sign in the . .
• Applied – Briggs and Others v Gleeds (Head Office) and Others ChD ([2015] 1 Ch 212, [2014] 3 WLR 1469, [2014] Pens LR 265, Bailii, [2014] EWHC 1178 (Ch), [2014] WLR(D) 174, WLRD)
  The court was asked whether certain documents constituting a pension scheme had been effectively executed. They had been signed, but the signatures lacked the necessary witnessing. The scheme members claimed estoppel against the signatories.
  

(This list may be incomplete)

Last Update: 31 January 2019
Ref: 535162

The post Bank of Scotland Plc v Waugh and Others: ChD 21 Jul 2014 appeared first on swarb.co.uk.

References: [2014] EWHC 3614 (Ch)
Links: Bailii
Coram: Behrens HHJ
Ratio: The claimant sought provision from her late mother’s estate under the 1975 Act, and asserting a proprietary estoppel. The mother had transferred andpound;10,000 to the daughter several years before. The mother had said it was to be invested on her behalf, and he claimant said it had been a gift. On falling out, the claimant was said to have disowned the mother. The mother had left a letter explaining her refusal to disinherit her daugter.
Held: The claimant was an unreliable witness. Money had not been given to the claimant, but was to have been held in trust. Though it apeared that she had worked more extensively for her mother without payment, the clim n proprietary estoppel failed also: ‘I am not satisfied that there were sufficiently clear representations that were relied on by Patricia Wright. Equally I am not satisfied that mention of inheritance by Harold Waters was intended to be taken seriously or was one that might reasonably have been expected to have been relied on by Patricia Wright. ‘
Statutes: Inheritance (Provision for Family and Dependants) Act
Jurisdiction: England and Wales
This case cites:

• Cited – In Re Coventry (deceased) CA ([1980] Ch 461, [1979] 3 All ER 815)
  The deceased’s adult son sought provision from the intestate estate. The sole beneficiary under the rules was the plaintiff’s mother. The estate was modest; the intestate’s interest in his house (he had been living there with the plaintiff). The . .
• Cited – Espinosa v Bourke CA ([1999] 1 FLR 747)
  The claimant was the adult daughter of the deceased. She had been expressly excluded by the deceased from a share in his estate. The claimant had bought a business with the aid of a loan secured by a mortgage. At first instance, Johnson J, dismissed . .
• Cited – Ilott v Mitson and Others CA (Bailii, [2011] EWCA Civ 346, [2011] 2 FCR 1, [2011] WTLR 779)
  The claimant, the estranged adult daughter of the deceased, had claimed under the 1975 Act. The judge made an order for payment of andpound;50,000 by way of capitalisation of maintenance. The claimant appealed saying she should have received more, . .
• Cited – Re Pearce, Deceased, Pearce v Davies Pearce CA (Bailii, [1998] EWCA Civ 1097)
  The claimant, the adult son of the deceased sought provision from the estate. He said that he had taken a substantial part in the refurbishment of a family property. Later his parents had separated. At first instance Behrens J had held there was a . .
• Cited – Thorner v Major and others HL (Bailii, [2009] UKHL 18, Times, HL, [2009] 13 EG 142, [2009] WTLR 71, [2009] Fam Law 583, [2009] 2 FLR 405, [2009] 1 WLR 776)
  The deceased had made a will including a gift to the claimant, but had then revoked the will. The claimant asserted that an estoppel had been created in his favour over a farm, and that the defendant administrators of the promisor’s estate held it . .

(This list may be incomplete)

Last Update: 01 February 2019
Ref: 538687

The post Wright v Waters and Another: ChD 6 Nov 2014 appeared first on swarb.co.uk.