References: [2014] EWHC 3671 (QB)
Links: Bailii
Coram: Knowles CBE J
Ratio: The boxing manager and boxer each said that the other owed him money.
Held: The contract entitled the claimant to take some share of the boxers earnings but as part of the overall management fee, but as a part of the overall sum and at a share to be apprtioned between the managers. On the other hand the claimant had not waived payment by failing to call for payment in earlier years. In summary, unpaid comission remained payable, the balance of any payment for one particular fight was due from a company now in liquidation (not Mr Warren), but no sum was payable in respect of the promoter agreement.
Jurisdiction: England and Wales
This case cites:

• Cited – Allied Marine Ltd v Vale do Rio Doce SA (The Leonidas D) CA ([1985] 1 WLR 925, [1985] 2 Lloyds Rep 18, [1985] 2 All ER 796)
  One party sought to construct an agreement to abandon an ongoing, if stalled, arbitration out of mere silence.
  Held: Robert Goff LJ said that silence will not normally amount to acceptance of an offer since acceptance cannot be inferred from . .
• Cited – Liberty Insurance Pte Ltd and Another v Argo Systems Fze CA (Bailii, [2011] EWCA Civ 1615, [2012] 1 CLC 81)
  Aikens LJ said that the waiver of a contractual right by election or by estoppel requires ‘that the person who is alleged to have ‘waived’ the relevant contractual right has made an unequivocal representation, by words or conduct, that he does not, . .
• Cited – Behzadi v Shaftsbury Hotels CA ([1992] Ch 1, [1991] 2 All ER 477, [1991] 2 WLR 1251, [1992] ANZ Conv R 112)
  The court must distinguish between an open contract such as Green v. Sevin where no date for completion is fixed by the contract and the more normal case where a completion date is fixed but time is not of the essence of the date specified. In the . .
• Cited – Dalkia Utilities Services Plc v Celtech International Ltd ComC (Bailii, [2006] EWHC 63 (Comm), [2006] 1 Lloyd’s Rep 599, [2006] 1 LLR 599, [2006] 2 P and CR 9)
  The Court was asked to decide (i) which, if either, of the two parties to a 15 year agreement lawfully terminated it; (ii) whether, if one of them did so, it was by giving notice under a contractual termination clause or by way of acceptance of the . .
• Cited – Valilas v Januzaj CA ([2014] 154 ConLR 38, Bailii, [2014] EWCA Civ 436)
  The parties, dentist working together, disputed the contract between them.
  Held: Floyd LJ described the assessment to be made when deciding if a contract had been breached: ‘Whether a breach or threatened breach does give rise to a right to . .

(This list may be incomplete)

Last Update: 01 February 2019
Ref: 538724

The post Warren and Another v Burns: QBD 13 Nov 2014 appeared first on swarb.co.uk.

References: [2014] EWHC 3519 (Fam)
Links: Bailii
Coram: Bodey J
Ratio:
Jurisdiction: England and Wales
This case cites:

• See Also – Chai v Peng FD (Bailii, [2014] EWHC 750 (Fam))
  Application for further maintenance pending suit. . .
• See Also – Chai v Peng FD (Bailii, [2014] EWHC 1519 (Fam))
  The court was severely critical of the practice in divorce proceedings of uissuing a petition for divorce but then not serving it for some time. Holman J referred to a colourful metaphor deployed by leading counsel for the husband: ‘To file [a . .

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

• See Also – Chai v Peng (2) FD (Bailii, [2014] EWHC 3518 (Fam))
  . .
• See Also – Chai v Peng CA (Bailii, [2015] EWCA Civ 790)
  Application to adjourn full hearing of appeal. . .

(This list may be incomplete)

Last Update: 01 February 2019
Ref: 538865

The post Chai v Peng (1): FD 17 Oct 2014 appeared first on swarb.co.uk.

References: [2015] EWHC 2713 (Ch)
Links: Bailii
Coram: Master Matthews
Ratio: The claimant freeholders sought possession of a public house against the defendants who operated a restaurant and pub business, and asserted a proprietary estoppel.
Jurisdiction: England and Wales
This case is cited by:

• Appeal from – Preedy and Another v Dunne and Others CA (Bailii, [2016] EWCA Civ 805)
  The appellants/defendants alleged, but failed to establish, a proprietary estoppel. On appeal, they seek to construe out of the judge’s findings of fact, which they do not for the most part challenge, a new case based on estoppel by convention. The . .

(This list may be incomplete)

Last Update: 06 February 2019
Ref: 553136

The post Preedy and Another v Dunne and Others: ChD 2 Oct 2015 appeared first on swarb.co.uk.

References: [2015] EWHC 3160 (Ch)
Links: Bailii
Coram: David Cooke HHJ
Ratio: In 1992 the claimant paid substantial amounts of money towards the cost of building and fitting out a new house on farmland owned by the deceased, Mr. Hopkins, at Aggs Hill, Cheltenham. She alleged that she did so in reliance on promises, frequently reiterated, that ‘this will all be yours one day’ or words to similar effect, which she understood to mean that he would leave her the house and an area of surrounding land in his will. He did not do so. Since Mr. Hopkins’ death the land was sold by the executor and she now sought an award of an amount equal to its present value (andpound;450,000) or such lesser amount as the court decides is appropriate to satisfy her equity.
Held: The claim failed. Mr Hopkins did not make any promise to leave the house to Mrs Rawlings, nor did he say anything which led Mrs Rawlings to believe, whether or not reasonably, that such a promise had been made. Her financial contributions were made toward a hoped-for joint life with the man she loved and hoped to marry, but who turned out not to be willing to give the commitment or adjust his lifestyle in the way that she hoped. They were not given in reliance on any belief that she had been promised she would inherit the house, because she did not have such a belief. She had not made out the essential elements of a proprietary estoppel.
Jurisdiction: England and Wales
This case cites:

• Cited – Gillett v Holt and Another CA (Times 17-Mar-00, Gazette 23-Mar-00, Bailii, [2000] EWCA Civ 66, [2001] Ch 210, [2000] 2 All ER 289, [2000] 2 WTLR 195, [2000] Fam Law 714, [2000] 1 FCR 705, [2000] 3 WLR 815, [2000] 2 FLR 266)
  Repeated assurances, given over years, that the claimant would acquire an interest in property on the death of the person giving the re-assurance, and upon which the claimant relied to his detriment, could found a claim of equitable estoppel. The . .
• 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: 07 February 2019
Ref: 554305

The post Rawlings v Chapman and Others: ChD 3 Nov 2015 appeared first on swarb.co.uk.

References: [2016] EWCA Civ 463
Links: Bailii
Coram: Patten, Lewison, Underhill LJJ
Ratio: The court was asked how to satisfy the equity raised by Eirian Davies (‘Eirian’) against her parents by virtue of the principles of proprietary estoppel.
Jurisdiction: England and Wales

Last Update: 11 February 2019
Ref: 564445

The post Davies and Another v Davies: CA 19 May 2016 appeared first on swarb.co.uk.

References: [2016] EWHC 1518 (Ch)
Links: Bailii
Coram: Newey J
Ratio:
Jurisdiction: England and Wales

Last Update: 11 February 2019
Ref: 566242

The post McGuinness v Preece and Others: ChD 24 Jun 2016 appeared first on swarb.co.uk.

New claim for estoppel on appeal
References: [2016] EWCA Civ 805
Links: Bailii
Coram: Longmore, Vos, King LJJ
Ratio: The appellants/defendants alleged, but failed to establish, a proprietary estoppel. On appeal, they seek to construe out of the judge’s findings of fact, which they do not for the most part challenge, a new case based on estoppel by convention. The respondent/claimant trustees, of course, complain that the new case is not open to the appellants, because the trial would have been conducted quite differently if they had known that to have been the appellants’ case. In any event, the respondent trustees say that the facts found by the judge do not support the newly alleged estoppel by convention.
Jurisdiction: England and Wales
This case cites:

• Appeal from – Preedy and Another v Dunne and Others ChD (Bailii, [2015] EWHC 2713 (Ch))
  The claimant freeholders sought possession of a public house against the defendants who operated a restaurant and pub business, and asserted a proprietary estoppel. . .

(This list may be incomplete)

Last Update: 12 February 2019
Ref: 567722

The post Preedy and Another v Dunne and Others: CA 21 Jul 2016 appeared first on swarb.co.uk.

References: [2016] EWHC 2828 (QB)
Links: Bailii
Coram: Morris J
Ratio: The claimant, Spire, claimed an indemnity or contribution from the defendantin respect of damages and costs which it, Spire, has paid to Mr Jellett in settlement of a personal injuries claim brought by Mr Jellett against both Spire and Mr Brooke
Statutes: Civil Liability (Contribution) Act 1978
Jurisdiction: England and Wales

Last Update: 14 February 2019
Ref: 571117

The post Spire Healthcare Ltd v Brooke: QBD 11 Nov 2016 appeared first on swarb.co.uk.

References: [2016] EWCA Civ 1233
Links: Bailii
Coram: Sir Terence Etherton MR, Lloyd Jones LJ and Arnold J
Ratio: Appeal against a finding that an oral agreement for the purchase of land was effective through a proprietary estopple and a constructive trust.
Statutes: Law of Property (Miscellaneous Provisions) Act 1989 2(5)
Jurisdiction: England and Wales

Last Update: 14 February 2019
Ref: 572005

The post Matchmove Ltd v Dowding and Another: CA 7 Dec 2016 appeared first on swarb.co.uk.

References: [2017] EW Misc 12 (CC)
Links: Bailii
Coram: Saffmann HHJ
Ratio: Leeds County Court – Challenge to validity of will – witnesses not present – lack of capacity – undue influence
Statutes: Wills Act 1837 9
Jurisdiction: England and Wales
This case cites:

• Cited – Banks v Goodfellow QBD ((1870) LR 5 QB 549)
  The testator suffered from delusions, but not so badly or in such a way as was found to affect his capacity or to influence his testamentary disposition. The judge had given the following direction: ‘The question is whether . . the testator was . .
• Cited – Key and Another v Key and Others ChD (Bailii, [2010] EWHC 408 (Ch), [2010] 1 WLR 2020, [2010] WTLR 623)
  The will was challenged for want of testamentary capacity. The testator was 89 years old, and the will was made within a week of the death of his wife of 65 years and without the solicitor having taken any proper steps to satisfy himself as to the . .
• Cited – Parker and Another v Felgate and Tilly ((1883) 8 PD 171)
  A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
• Cited – Re Loxston, Abbot v Richardson ChD ([2006] WTLR 1567)
  Mr N Strauss QC said: ‘The question is always whether the testator had the necessary capacity at the time the Will was executed, and that may depend upon the efforts made by others to enable her to have in mind all the relevant considerations . .
• Cited – Edwards v Edwards and others ChD (Bailii, [2007] EWHC B4 (Ch), [2007] WTLR 1387)
  Family members challenged the will saying that one son had exercised undue influence over the testatrix.
  Held: The beneficiary son had poisoned his mother’s mind against the other family members. The will would be set aside for his undue . .
• Cited – Perrins v Holland and Others; In re Perrins, deceased CA (Bailii, [2010] EWCA Civ 840, [2010] WLR (D) 196, WLRD, (2010) 13 ITELR 405, [2011] 2 WLR 1086)
  The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .
• Cited – Hawes v Burgess and Another CA (Bailii, [2013] EWCA Civ 74)
  The appellant challenged pronouncement against the validity of wills on the ground of lack of testamentary capacity and want of knowledge and approval.
  Mummery LJ said: ‘Although talk of presumptions and their rebuttal is not regarded as . .
• Cited – Simon v Byford and Others CA (Bailii, [2014] EWCA Civ 280)
  The court was asked whether the testatrix (a) had testamentary capacity and (b) knew and approved the contents of her will when she executed it at or immediately after her 88th birthday party. The judge had answered both those questions in the . .

(This list may be incomplete)

Last Update: 21 February 2019
Ref: 590780

The post Ram and Another v Chauhan and Another: Misc 19 Jul 2017 appeared first on swarb.co.uk.

References: [2017] EWCA Civ 1390
Links: Bailii
Coram: Gloster VP CA, Lewison LJJ
Ratio: The parties disputed the continued existence of rights to use a toilet. The servient owner sought to establish an estoppel.
Held: The appeal failed.
Jurisdiction: England and Wales
This case cites:

• Cited – Routestone Ltd v Minories Finance ChD ([1997] BCC 180, [1997] 1 EGLR 123)
  A receiver’s management duties will ordinarily impose on him no general duty to exercise the power of sale, or to ‘work’ an estate by refurbishing it before sale. Speaking of the role of an expert witness ‘What really matters in most cases are the . .
• Cited – Lester and Another v Woodgate and Another CA (Bailii, [2010] EWCA Civ 199, [2010] 2 P and CR 21)
  Sherwell was entitled to a right of way over land belonging to Mr Mees. Mr Mees carried out work to the route over which the right of way ran which made it unusable. The work that he carried out amounted to an actionable nuisance. Sherwell made no . .

(This list may be incomplete)

Last Update: 23 February 2019
Ref: 595819

The post Watt v Dignan and Others: CA 5 Oct 2017 appeared first on swarb.co.uk.

fairfax_ibaFCA2010
References: [2010] FCA 984
Links: Austlii
Coram: Bennett J
Ratio: Austlii (Federal Court of Australia)
COPYRIGHT – respondent reproduces headlines and creates abstracts of articles in the applicant’s newspaper – whether reproduction of headlines constitutes copyright infringement – whether copyright subsists in individual newspaper headlines, in an article with its headline, in the compilation of all the articles and headlines in a newspaper edition and in the compilation of the edition as a whole – literary work – copyright protection for titles – use of headline as citation to article – policy considerations – originality – authorship – whether presumption of originality for anonymous works available – whether work of joint authorship – whether the headlines constitute a substantial part of each compilation – whether the work of writing headlines is part of the work of compilation – whether fair dealing for the purpose of or associated with reporting news
ESTOPPEL – whether applicant estopped from asserting copyright infringement by respondent – applicant has known for many years that headlines of the applicant’s newspaper are reproduced in the abstracting service – applicant had subscribed to and resupplied the abstracting service – whether respondent relied on an assumption that the applicant will not assert copyright infringement by reproduction by headlines – whether applicant created or encouraged the assumption – detriment – whether unconscionable to depart from assumption
Bennett J said: ‘In my view, the headline of each article functions as the title of the article . . It may be a clever title. That is not sufficient. Headlines are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. It is, generally, too trivial to be a literary work, much as a logo was held to be too trivial to be an artistic work . . It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection . . but that is not the case here . . Fairfax claims copyright in the headlines as a class of work, based on the evidence of a general practice that headlines are determined by staff and settled at meetings of staff to provide a title to a story which also fits into the format of the page . . That is insufficient to overcome the reasoning for the established practice of denying copyright protection to titles which is the apt characterisation for headlines as a class . . The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper but also reproduction of the headline . . If titles were subject to copyright protection, conventional bibliographic references to an article would infringe. Such considerations may well be a reason for the fact that headlines and ‘short phrases’ are excluded from copyright in the United States . . In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer or be referred to articles by their headlines.’
This case is cited by:

• Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD (Bailii, [2010] EWHC 3099 (Ch))
  The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
• Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others CA (Bailii, [2011] EWCA Civ 890, [2012] RPC 1, [2012] Bus LR 53)
  The defendant companies provided media monitoring services, automatically searching web-sites for terms of interest. The claimant newspapers operated a licensing system through the first claimant permitting the re-use of the content on its members . .

(This list may be incomplete)
Leading Case
Last Update: 07 March 2019
Ref: 470926

The post Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd: 7 Sep 2010 appeared first on swarb.co.uk.

References: Gazette 04-Dec-1996
Ratio: Issue estoppel is to be applied only very carefully in children proceedings.

Last Update: 07 March 2019
Ref: 81727

The post In Re B (Nibors): FD 4 Dec 1996 appeared first on swarb.co.uk.

References: Times 23-Mar-1993, [1994] QB 290
Coram: Stuart-Smith LJ, Mann LJ, Nourse LJ
Ratio: In a motor accident, both driver and passenger were injured. The passenger sued the driver. The driver’s insurers, without notice to the driver, made a third party claim against the Berkshire County Council, claiming contribution as between joint tortfeasors but including no claim for the driver’s own injuries. The driver later discovered his insurer’s action and himself sought damages from the council.
Held: A cause of action estoppel, which estops a plaintiff pursuing a second action which could have been combined with a first action, applied to an action for personal injuries to prevent a motorist suing a highway authority. The insurers’ solicitors appeared to have been negligent but the claim against the county council should be struck out unless there were special circumstances, and in this case there were not.
Stuart-Smith LJ said: ‘There can be no doubt that the [driver’s] personal injury claim could have been brought at the time of [the passenger’s] action. It could have been included in the original third party notice issued against the council (R.S.C., Ord. 16, r. 1(b)(c)); it could have been started by a separate writ and consolidated with or ordered to be tried with [the passenger’s] action: Ord. 4, r. 9. The third party proceedings could have been amended at any time before trial and perhaps even during the trial to include such a claim, notwithstanding that it was statute-barred, since it arose out of the same or substantially the same facts as the cause of action in respect of which relief was already claimed, namely, contribution or indemnity in respect of [the passenger’s] claim: Ord. 20, r. 5. In my opinion, if it was to be pursued, it should have been so brought.’ and

‘The rule is thus in two parts. The first relates to those points which were actually decided by the court: this is res judicata in the strict sense. Secondly, those which might have been brought forward at the time, but were not. The second is not a true case of res judicata but rather is founded on the principle of public policy in preventing multiplicity of actions, it being in the public interest that there should be an end to litigation: the court will stay or strike out the subsequent action as an abuse of process.’
This case is cited by:

• Cited – C (A Minor) v Hackney London Borough Council CA (Times 10-Nov-95, [1996] 1 WLR 789)
  The mother had claimed in damages for the injuries to her health from the landlord authority’s failure to repair. Her child then brought a subsequent action in respect of his own injuries. The authority claimed the action should be stopped as res . .
• 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 – Brown v Rice and Another ChD (Bailii, [2007] EWHC 625 (Ch))
  The parties, the bankrupt and her trustee, had engaged in a mediation which failed at first, but applicant said an agreement was concluded on the day following. The defendants denied this, and the court as asked to determine whether a settlement had . .
• Cited – Divine-Bortey v London Borough of Brent CA (Bailii, Bailii, Bailii, [1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832)
  The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .

(This list may be incomplete)

Last Update: 08 March 2019
Ref: 89696

The post Talbot v Berkshire County Council: CA 23 Mar 1993 appeared first on swarb.co.uk.

References: Ind Summary 12-Apr-1993, Gazette 21-Apr-1993, [1993] AC 552
Ratio: An oral agreement to surrender a lease of less than three years might not defeat a rent arrears claim under an estoppel.
This case is cited by:

• Cited – Yaxley v Gotts and Another CA (Gazette 14-Jul-99, Times 08-Jul-99, Bailii, [1999] EWCA Civ 1680, [1999] 1 WLR 1217, [2000] Ch 162, [1999] EGCS 92, Bailii, [1999] EWCA Civ 3006, [2000] 1 All ER 711)
  The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .

(This list may be incomplete)

Last Update: 08 March 2019
Ref: 89694

The post Take Harvest Ltd v Liu and Another: PC 12 Apr 1993 appeared first on swarb.co.uk.

References: Times 16-Jul-1998, Gazette 24-Jun-1998, [1998] EWCA Civ 905
Ratio: Plaintiff, having succeeded in claim for damage to his car, was subject to an action estoppel, since he could have had the additional claim for personal injury damages settled at the same time. A mistake by his adviser which fell short of being actionable but which resulted in a party not being able to pursue a remedy was not enough to set aside an issue estoppel having once litigated the matter.
Jurisdiction: England and Wales
This case cites:

• Applied – 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 . .

(This list may be incomplete)

Last Update: 08 March 2019
Ref: 90231

The post Wain v Sherwood and Sons Transport Ltd: CA 4 Jun 1998 appeared first on swarb.co.uk.

References: Times 09-Feb-2001, [2001] RTR 291
Coram: Kennedy LJ
Ratio: Insurers were quite entitled to insist upon service of the statutory seven day notice of an intention to sue. In the absence of a notice very were not liable even though they were fully aware of the possibility of action. However regrettable it was there was no representation from the Insurers that they would waive their right for formal notice, and no equitable estoppel arose. A prudent solicitor would be well advised to ensure that the insurance company received written notice within seven days after the commencement of proceedings.
Jurisdiction: England and Wales
This case is cited by:

• Cited – Nawaz and Another v Crowe Insurance Group CA (Times 11-Mar-03, Bailii, [2003] EWCA Civ 316)
  The claimant had claimed aganst the driver, but gave notice of the intention to make a claim on his insurance by telephone only. The insurers repudiated liability.
  Held: Whilst solicitors would be strongly advised to give such notice in . .

(This list may be incomplete)

Last Update: 08 March 2019
Ref: 90234

The post Wake v Page and Another: CA 9 Feb 2001 appeared first on swarb.co.uk.

References: Gazette 02-Aug-1993, [1993] 69 PandCR 170
Ratio: The plaintiff and defendant were in a homosexual reationship. The plaintiff worked for the defendant for nominal expenses against his repeated promise to leave the business to him in his will. A will was made to that effect, but the defendant sold the business. The claimant sought damages.
Held: There had been express representations, characterised as promises, made, on at least one occasion, in circumstances in which it was intended to meet a complaint by the plaintiff as to how he was being treated at the time, and therefore intended to be relied on, in the sense of being taken as a sufficient response to the complaint.
Once promises, and reliance upon them, are established, the burden to negative an estoppel falls to the defendant. ‘(1) There must be a sufficient link between the promises relied upon and the conduct which constitutes the detriment (Grant v Edwards) in particular the passage where he equates the principles applicable in cases of constructive trust to those of proprietary estoppel. (2) The promises relied upon do not have to be the sole inducement for the conduct: it is sufficient if they are an inducement. (3) Once it has been established that promises were made, and that there has been conduct by the plaintiff of such a nature that inducement may be inferred then the burden of proof shifts to the defendants to establish that he did not rely on the promises.’
This case cites:

• Cited – Eves v Eves CA ([1975] 1 WLR 1338, Bailii, [1975] 3 All ER 768, [1975] EWCA Civ 3)
  The couple were unmarried. The female partner had been led by the male partner to believe, when they set up home together, that the property would belong to them jointly. He had had told her that the only reason why the property was to be acquired . .
• Cited – Grant v Edwards and Edwards CA ([1986] 1 Ch 638, [1986] 2 All ER 426, Bailii, [1986] 3 WLR 114, [1986] EWCA Civ 4, [1986] Fam Law 300, [1987] 1 FLR 87)
  A couple were not married but lived together in a house in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names was . .
• Cited – Amalgamated Investment and Property Co Ltd (in Liq) v Texas Commerce International Bank Ltd CA ([1982] QB 84, [1981] 1 All ER 923, [1981] 2 WLR 554, [1982] 1 Lloyds Rep 27)
  The court explained the nature of an estoppel by convention.
  Lord Denning MR said: ‘The doctrine of estoppel is one of the most flexible and useful in the armoury of the law. But it has become overloaded with cases. That is why I have not gone . .
• Cited – Greasley v Cooke ([1980] 1 WLR 1306, [1980] 3 All ER 710)
  For a proprietary estoppel to arise the plaintiff must have incurred expenditure or otherwise have prejudiced himself or acted to his detriment. However, once it has been established that promises were made, and that there has been conduct by the . .

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

• Cited – Grundy v Ottey CA (Bailii, [2003] EWCA Civ 1176, [2003] WTLR 1253)
  The deceased left his estate within a discretionary trust. The claimant sought to assert an interest in it, claiming an estoppel and, under the 1975 Act, as his partner. They had lived together for four years. She had been dependent upon him . .
• Cited – Uglow v Uglow and others CA (Bailii, [2004] EWCA Civ 987, [2004] WTLR 1183.)
  The deceased had in 1976 made a promise to the claimant. The promise was not honoured in the will, and the claimant asserted a proprietary estoppel.
  Held: The judge was right to have found that the promise was bound up with the claimant being . .
• Cited – Thorner v Curtis and others ChD (Bailii, [2007] EWHC 2422 (Ch))
  The claimant said that the deceased, his father and a farmer, had made representations to him over many years that if the claimant continued to work on the farm, he would leave the farm to him in his will. He died intestate. He claimed a proprietary . .
• Cited – Thorner v Major and others CA ((2008-09) 11 ITELR 344, [2008] 2 FCR 435, Bailii, [2008] EWCA Civ 732, [2008] WTLR 1289, [2009] 3 All ER 945)
  The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
  Held: . .

(This list may be incomplete)

Last Update: 08 March 2019
Ref: 90340

The post Wayling v Jones: CA 2 Aug 1993 appeared first on swarb.co.uk.

References: [1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177
Coram: Lord Keith of Kinkel, Lord Griffiths, Lord Oliver of Aylemton, Lord Jauncey of Tullichettle
Ratio: 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 unable to challenge his decision on appeal. Later cases threw doubt on his construction. The question was whether the rules governing issue estoppel were subject to exceptions which would permit the matter to be reopened. The landlords issued proceedings on the new understanding. The tenant sought an order striking out the action, claiming an issue estoppel.
Held: Though issue estoppel operated as a complete bar to a subsequent action, some special circumstances existed to allow a subsequent claim where new information came to light. Reasonable diligence in the first action could not have prevented the situation. It did not relate to factual circumstances, but rather an error by the judge, and it would not be just to prevent the second action.
Lord Keith of Kinkel said as to cause of action estoppel: ‘It is appropriate to commence by noticing the distinction between cause of action estoppel and issue estoppel. Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re-opened. The rule in Scotland, which recognises the doctrine of res noviter veniens ad notitiam, is different: see Phosphate Sewage Co. Ltd v Molleson (1879) 4 App. Cas. 801, 814, per Lord Cairns L.C. There is no authority there, however, for the view that a change in the law can constitute res noviter. The principles upon which cause of action estoppel is based are expressed in the maxims nemo debet bis vexari pro una et eadem causa and interest rei publicae ut finis sit litium. Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action.’ and
and ’cause of action estoppel . . prevents a party from asserting or denying as against the other party, the existence of a particular cause of action, the existence or non-existence of which has been determined by a court of competent jurisdiction in previous litigation between the same parties. If the cause of action was determined to exist, i.e. judgment was given on it, it is said to be merged in the judgment. If it was determined not to exist, the unsuccessful plaintiff can no longer assert that it does: he is estopped per rem judicatam.’
As to issue estoppel: ‘Issue estoppel, too, has been extended to cover not only the case where a particular point has been raised and specifically determined in the earlier proceedings, but also that where in the subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier.’
As to whether there were any exceptions: ‘In my opinion your Lordships should affirm it to be the law that there may an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result.’
Lord Keith of Kinkel concluded: ‘But there is room for the view that the underlying principles upon which estoppel is based, public policy and justice, have greater force in cause of action estoppel, where the subject matter is different. Once it is accepted that different considerations apply to issue estoppel, it is hard to perceive any logical distinction between a point which was previously raised and decided and one which might have been but was not. Given that the further material which would have put an entirely different complexion on the point was at the earlier stage unknown to the party and could not by reasonable diligence have been discovered by him, it is hard to see why there should be a different result according to whether he decided not to take the point, thinking it hopeless, or argue it faintly without any real hope of success. In my opinion your Lordships should affirm it to be the law that there may be an exception to issue estoppel in the special circumstance that there has become available to a party further material relevant to the correct determination of a point involved in the earlier proceedings, whether or not that point was specifically raised and decided, being material which could not by reasonable diligence have been adduced in those proceedings. One of the purposes of estoppel being to work justice between the parties, it is open to courts to recognise that in special circumstances inflexible application of it may have the opposite result, as was observed by Lord Upjohn in the passage which I have quoted above from his speech in the Carl Zeiss case [1967] 1 AC 853, 947.’
Jurisdiction: England and Wales
This case cites:

• Applied – 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 . .
• Applied – Mills v Cooper QBD ([1967] 2 QB 459)
  Two sets of criminal proceedings were brought against the defendant for offences under section 127 of the Highways Act 1959 namely that of being a gypsy and, without lawful excuse, camping on a highway. The first proceedings were brought in respect . .
• Applied – Property and Reversionary Investment Corporation v Templar CA ([1977] 1 WLR 1223)
  A party sought leave to appeal out of time in reliance on an intervening decision of the House of Lords.
  Held: A change in the understanding of the law would not suffice in the absence of special circumstances. . .

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

• Cited – Rothschild Asset Management Limited v Ako CA (Bailii, Times 02-Apr-02, Gazette 25-Apr-02, [2002] EWCA Civ 236, [2002] 2 All ER 693, [2002] ICR 899, [2002] IRLR 348)
  The applicant had, in earlier proceedings before the Employment Tribunal, withdrawn issues she had raised. She now sought to pursue them, and the respondent asserted that she was estopped from doing so, and that the matter was res judicata. The . .
• Cited – Good Challenger Navegante S A v Metalexportimport SA CA ([2003] EWCA Civ 1668, Bailii, Times 27-Nov-03, Gazette 15-Jan-04, [2004] 1 Lloyd’s Law Reports 67)
  The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
• Cited – Ahsan v Carter; Matt Carter v Raghib Ahsan CA (Bailii, [2005] EWCA Civ 990, Times 23-Aug-05, [2005] ICR 1817)
  The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
  Held: A political party when selecting candidates was not acting as a . .
• Cited – Moody and Another v Condor Insurance Ltd and Another ChD (Bailii, [2006] EWHC 100 (Ch), Times 27-Feb-06)
  The claimants sought to enforce a deed of guarantee. The defendants argued that the claimant had no entitlement to enforce the deed, not being parties to it, and that they would be able to set aside the deed as against the company whose debts they . .
• Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD (Bailii, [2006] EWHC 74 (Ch), Times 27-Apr-06, [2007] Ch 197, [2006] 2 P and CR 23, [2006] 3 All ER 1029, [2006] 6 EGCS 170, [2007] 2 WLR 403)
  The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
  Held: The . .
• Cited – Special Effects Ltd v L’Oreal Sa and Another CA (Bailii, [2007] EWCA Civ 1, Times 24-Jan-07)
  The defendants had opposed the grant of the trade mark which they were now accused of infringing. The claimants said that having failed at the opposition stage, they were now estopped from challenging the validity of the mark.
  Held: It was not . .
• 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 – Campbell v Leeds United Association Football Misc (Bailii, [2009] EW Misc 4 (EWCC))
  The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
  Held: The . .
• Cited – Specialist Group International Ltd v Deakin and Another CA ([2001] EWCA Civ 777, Bailii)
  Law upon res judicata – action estoppel and issue estoppel and the underlying policy interest whereby there is finality in litigation and litigants are not vexed twice on the same matter.
  (May LJ) ‘the authorities taken as a whole tend to . .
• Cited – Schellenberg v British Broadcasting Corporation QBD ([2000] EMLR 296, Bailii, [1999] EWHC 851 (QB))
  The claimant had settled defamation actions against the Guardian and the Sunday Times on disadvantageous terms, when it seemed likely that he was about to lose. He then pressed on with this almost identical action against the BBC.
  Held: A . .
• Cited – Coke-Wallis, Regina (on The Application of) v Institute of Chartered Accountants In England and Wales SC (Bailii, [2011] UKSC 2, Bailii Summ, UKSC 2009/0175, SC Summary, SC, [2011] ICR 224, [2011] 2 All ER 1, [2011] 2 AC 146, [2011] 2 WLR 103)
  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 . .
• Cited – Foster v Bon Groundwork Ltd EAT (Bailii, [2011] UKEAT 0382 – 10 – 1703)
  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 . .
• Cited – Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
  Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .

(This list may be incomplete)

Last Update: 10 March 2019
Ref: 180557

The post Arnold v National Westminster Bank Plc: HL 1991 appeared first on swarb.co.uk.

References: [1889] 14 App Cas 665
Coram: Lord Halsbury
Ratio: The new vicar of Sparsholt, Dr Magrath, was able to rely on the abuse of process even though he had not been party to earlier proceedings between Reichel and the Bishop of Oxford and the Queen’s College and so was not bound by any issue estoppel arising out of those proceedings.
Lord Halsbury said: ‘I think it will be a scandal to the administration of justice if, the same question having been disposed of by one case, the litigant were to be permitted by changing the form of the proceedings to set up the same case again’.
Jurisdiction: England and Wales
This case is cited by:

• Cited – Hunter v Chief Constable of the West Midlands Police HL ([1982] AC 529, [1981] 3 WLR 906, Bailii, [1981] UKHL 13, [1981] 3 All ER 727)
  An attempt was made to open up in a civil action, allegations of assaults by the police prior to the making of confessions which had been disposed of in a voir dire in the course of a criminal trial.
  Held: This was a collateral attack . .
• Cited – Levey, Regina v CACD (Bailii, [2006] EWCA Crim 1902, Times 24-Aug-06, [2006] 1 WLR 3092)
  The defendant appealed against his conviction of manslaughter of his baby son. He said that a family court had previously investigated the same allegations and had explicitly found itself unable to say which of himself and the mother were . .
• Cited – Laing v Taylor Walton (A Firm) QBD (Bailii, [2007] EWHC 196 (QB))
  The claimant sought to pursue an action for professional negligence against his solicitors. They said that the action was an abuse being an attempted relitigation of matters already settled when a judge had decided that the defendants had not owed a . .
• Cited – Michael Wilson and Partners Ltd v Sinclair and Another CA (Bailii, [2017] EWCA Civ 3, [2017] WLR(D) 18, WLRD)
  The appellant company sought to recover assets which, it said, had been acquired by a former partner in breach of his obligations under the partnership agreement, but which had been taken in the names of some of the respondents. There had been an . .
• Cited – Michael Wilson and Partners Ltd v Sinclair and Others ComC ([2013] 1 All ER (Comm) 476, Bailii, [2012] EWHC 2560 (Comm))
  The claimant company alleged that the defendants had variously received assests (shares and cash) acquired by a former partner in the claimant company and held on his behalf, in breach of his obligations to the caimant partnership. The defendants . .

(This list may be incomplete)

Last Update: 10 March 2019
Ref: 244668

The post Reichel v Magrath: PC 1889 appeared first on swarb.co.uk.