REVIEW OF CIVIL PROCEDURE IN 2020 1: THE OPENING LINES OF JUDGMENTS: DUNNYS, UNICORNS, A REQUIEM, BUTT SHAKING AND INSECTS: HOW BEST TO SUM UP AN UNUSUAL YEAR

This year has been a boom year for the “opening lines of a judgment” contest.  The search has gone international and these opening lines tell us much about the legal world, and life, in 2020.  There are so many good ones I have not declared a winner.

 

 

 

A WOODEN STAKE WAS NEEDED

We are starting off in Australia with Master Sanderson in Bell Group (UK) Holdings in Liquidation.  [2020] WASC 347

  1. These reasons are not so much a judgment as a requiem…
  1. Over the years, I dealt with the case on more than a dozen occasions. Most of these hearings were for judicial directions. It was clear there existed between counsel a mutual loathing. That was probably due to frustration – not only frustration with the glacial progress of the case, but frustration with the clients. Occasionally, agreement was reached – the time of the day, the day of the week – but agreement was otherwise rare. Invariably, the liquidator was represented by Vaughan SC (as his Honour then was). There were times when I thought even his sphinx‑like visage would crack. But somehow, the matter edged forward. Now it is settled and it remained for me to give this, and other companies in the group, a decent burial.
  2. It was tempting to drive a wooden stake through the heart of the company to ensure it does not rise zombie‑like from the grave. As an alternative, I considered ordering the files be removed to a secure facility in Roswell and marked: ‘Never to be opened’. In the end, trusting in divine providence, I made the following orders:
    1. The applicant have leave to discontinue the winding up application.
    2. The applicant’s winding up application is hereby dismissed.
    3. There be no orders as to costs as to the winding up application.
  3. Amen

 

LIBERTY CAN ONLY GO SO FAR

Cheryl Pile brings this appeal to establish the liberty of inebriated English subjects to be allowed to lie undisturbed overnight in their own vomit soaked clothing. Of course, such a right, although perhaps of dubious practical utility, will generally extend to all adults of sound mind who are intoxicated at home.

Pile v Chief Constable of Merseyside Police [2020] EWHC 2472 (QB)

Mr Justice Turner.

 

STRAIGHT TO THE POINT: NO HANGING ABOUT

This is a case about garment hangers. “

Mr Recorder Douglas Campbell QC in  The Janger Ltd v Tesco Plc [2020] EWHC 3450 (IPEC)

 

A RETURN TO THE BAD OLD DAYS

Coulson LJ in Lejonvarn v Burgess & Anor [2020] EWCA Civ 114

  1. There was a time, 30 or 40 years ago, when construction litigation was a byword for expense and delay, and where the costs were often out of all proportion to the sums at stake. Subsequently, thanks in part to compulsory construction adjudication, which has reduced the number of construction cases that go through to a final trial, and the careful case management by TCC judges of those cases which do, construction litigation has become a much more efficient and cost-effective method of dispute resolution. But occasionally, circumstances conspire to create a construction case with echoes of the bad old days. Unfortunately, this is one such case.

THE HISTORY OF THE AUSTRALIAN “DUNNY”:  A TSUNAMI OF SMASHED AVOCADO AND MAN BUNS

Kunc J in Hardy v Sidoti [2020] NSWSC 1057

  1. These proceedings concern two very Australian phenomena: the “dunny” and dedication to home improvement. At issue is the ownership of a 3.35 square metre remnant of a “dunny lane” in Redfern, a suburb of historic significance for First Australians and in the development of Sydney as a city.
  2. At the end of the 19th century, Redfern suffered from typhoid epidemics “directly attributable to the lack of drainage, airless tenements, and the use of the cesspit system”. [1] Today, according to one writer, the suburb “has succumbed to a tsunami of smashed avocado and man buns”. [2] Whatever the truth of that latter statement, those parts of Redfern which feature exquisitely renovated terrace houses are now highly prized Sydney real estate. The vestigial remains of “dunny lanes” are a reminder of a less sanitary past.

NOVEL CLAIM OF ADULT CHILD FOR SUPPORT FROM PARENTS

Sir James Munby in FS v RS and JS [2020] EWFC 63
    1. This is a most unusual case. Indeed, so far as I am aware, and the very experienced counsel who appear before me do not dispute this, the case is unprecedented. Certainly, the researches of counsel have identified no decision directly in point. The applicant’s own description is that his applications are “novel.” I suspect that the initial reaction of most experienced family lawyers would be a robust disbelief that there is even arguable substance to any of it.
    2. The cynic will recall the words of Diplock LJ in Robson and another v Hallett [1967] 2 QB 939, 953:
“The points are so simple that the combined researches of counsel have not revealed any authority upon them. There is no authority because no one has thought it plausible up till now to question them.”
But if at the end of the day the answer is clear, as in my judgment it is, the points are not so simple as one might at first suppose. Equally in point, is the observation of Thorpe LJ in Moses-Taiga v Taiga [2005] EWCA Civ 1013[2006] 1 FLR 1074, para 21, that:
“the absence of … authority … only illustrates the tendency for propositions of universal acceptance to be difficult to support by reference to authority.”
But is the universal assumption correct? I leave the last word to Megarry J, who in Hampstead & Suburban Properties Ltd v Diomedous [1969] 1 Ch 248, 259, said with grim humour:
“It may be that there is no direct authority on this point; certainly none has been cited. If so, it is high time that there was such authority; and now there is.”

ARE INSECTS NOVEL FOODS?

I.      Introduction

1.        Are insects novel foods? Over the course of human history, they are certainly not. However, in the eyes of EU law, the answer is said to be less clear. It may perhaps be assumed that, up until 15 May 1997, the relevant date foreseen by Regulation (EC) No 258/97, (2) insects had not ‘been used for human consumption to a significant degree within the Community’. Nevertheless, is it possible for whole mealworms, locusts and crickets to be subsumed equally under the second part of the definition of novel foods, enquired about in the present case, namely that they are ‘food ingredients isolated from animals’?
2.        In my view, they cannot. There is nonetheless the explicit invitation issued by the French and Italian Governments urging the Court to fill in judicially what they consider to be a gap left by the EU legislature back in 1997. One cannot ignore an invitation, a fortiori when it concerns such culinary delights as those addressed by the present case. However, one can, and in the present case one must, politely decline that invitation, pointing out the limits of what might still be called ‘judicial interpretation’ of a clear provision of secondary legislation, and what becomes its ex post rewriting.

Opinion of the Advocate General in

 Entoma (Food safety – Whole insects intended for human consumption – Opinion) [2020] EUECJ C-526/19_O

 

LIBERTY AND ANIMAL FARM

Introduction

    1. In his unpublished introduction to Animal Farm (1945) George Orwell wrote:

“If liberty means anything at all, it means the right to tell people what they do not want to hear.”

    1. In R v Central Independent Television plc [1994] Fam 192, 202-203, Hoffmann LJ said that:

“… a freedom which is restricted to what judges think to be responsible or in the public interest is no freedom. Freedom means the right to publish things which government and judges, however well motivated, think should not be published. It means the right to say things which ‘right-thinking people’ regard as dangerous or irresponsible. This freedom is subject only to clearly defined exceptions laid down by common law or statute.”

    1. Also much quoted are the words of Sedley LJ in Redmond-Bate v Director of Public Prosecutions (1999) 7 BHRC 375, [20]:
“Free speech includes not only the inoffensive but the irritating, the contentious, the eccentric, the heretical, the unwelcome and the provocative … Freedom only to speak inoffensively is not worth having  … “

 

Mr Justice Julian Knowles in  Miller, R (On the Application Of) v The College of Policing & Anor [2020] EWHC 225 (Admin)

 

THE LIFEBLOOD OF A GENUINE CONSTITUTIONAL DEMOCRACY

It is no exaggeration to characterise the right to freedom of expression as the lifeblood of a genuine constitutional democracy that keeps it fairly vibrant, stable and peaceful. When citizens are very angry or frustrated, it serves as the virtual exhaust pipe through which even the most venomous of toxicities within may be let out to help them calm down, heal, focus and move on. More importantly, free expression is an indispensable facilitator of a vigorous and necessary exchange of ideas and accountability.

 

The Constitutional Court of South Africa in Economic Freedom Fighters -v- Minister of Justice and Correctional Services  CCT 201/19

BUSINESS AND FRIENDSHIP DON’T ALWAYS MIX

Mixing business and friendship can be the ruin of both. Here, only the business survived

 

Mr Justice K. Feth Gill v 1176520 Alberta Ltd, 2020 ABQB 274

 

NICE NAMES DON’T ALWAYS MAKE GOOD NEIGHBOURS

Good fences may make good neighbours, as the saying goes, but idyllic names of houses do not in a similar way bring idyllic relationships

Master McCloud in  McGill v Stewart & Anor (land – rights of way – neighbours – private motor vehicles) [2020] EWHC 3387 (QB)

 

NOT GOOD LAWYERLY BEHAVIOUR: BUTT SHAKING

“One of the sentences a judge does not imagine – much – less welcome – writing includes the words “butt shaking” in describing a lawyer’s alleged actions at a mediation. Sadly, those words, fit here.”

Chief United States District Judge Rosenthal White -v- Chevron Phillips Chemical Co

LAW CRAVES FINALITY

“Family law craves finality. It is woven throughout legislation and case law. Parties involved in family law litigation want the daytime nightmare to end; not so much the fact of separation, relationship breakdown or difficult financial arrangements but the end to the litigation itself. The paying party desperately seeks the premium of a clean break, the avoidance of continued variation applications to the court and an end to dealings with the other spouse. Family law, perhaps more than any other area of law, is close to the psychological, therapeutic and psychodynamic aspects of the work and is aware of the mental health and well-being benefits of closure and moving on. Parliament recognised the need for finality in 1984, after Law Commission recommendations, with the power to impose a clean break. Judges such as Lord Justice Thorpe and others took steps to reduce the opportunities for appeals in family law cases; there are restrictive provisions on when permission is needed and will be allowed. The FDR in English law has been so successful because it has prevented many cases otherwise going on even longer with higher costs. English family law has scandalous instances of grossly disproportionate costs, at all levels of the wealth spectrum, and sensible parties seek the end of the costs haemorrhage by the finality of the dispute. All family lawyers have had cases where a party has accepted a quite disadvantageous settlement simply to bring long-running litigation to an end. And so many other instances of desperately seeking finality. Family law wants finality
2. I doubt the above would be in any way contentious amongst specialist family law practitioners and judiciary but if judicial endorsement is needed, plenty can be found across many cases.”

Deputy District Judge David Hodson LB v DB [2020] EWFC B34 (OJ)

BINGO, RAVES AND DANCE-OFFS

These proceedings relate to the ownership of “Bongo’s Bingo” (“BB”), an entertainment medium fusing bingo with rave and dance-offs. “

HHJ Haliwell  Shua Ltd v Camp And Furnace Ltd [2020] EWHC 687 (Ch)

TOO GOOD TO BE TRUE

The old adage “if it seems too good to be true, it probably is” is particularly applicable to the tax avoidance scheme entered into by the Claimant company, Chalcot Training Limited (the Company) which is the subject matter of this case (called hereafter the E Shares scheme). Even Ms Susan Stoneman, one of the Defendants but also the sole shareholder and director of the Company, said in her witness statement that it seemed to her at the time “a little too good to be true“. The E Shares scheme purported to avoid all corporation tax, income tax and national insurance contributions (NIC) on monies paid out by the Company to Ms Stoneman and her ex-husband, Mr Matthew Ralph”

Mr Michael Green QC Chalcot Training Ltd v Ralph & Anor [2020] EWHC 1054 (Ch)

 

A CASE THAT MAY WELL SUM UP 2020: IT STARTS OFF WITH UNICORNS AND THEN THEN THE ELVES COME IN…

On March 18 the Honorable Steven  C. Seeger considered an emergency motion in relation to unicorns.

This case involves counterfeit unicorn drawings. The complaint includes a few examples of products that allegedly infringe Plaintiff’s trademarks, which offer “striking designs and lifelike portrayals of fantasy subjects.” See Cplt. at ¶ 7 (Dckt. No. 1). One example is a puzzle of an elf-like creature embracing the head of a unicorn on a beach. Id. at p.4. Another is a hand purse with a large purple heart, filled with the interlocking heads of two amorous-looking unicorns.  There are phone cases featuring elves and unicorns, and a unicorn running beneath a castle lit by a full moon.
Meanwhile, the world is in the midst of a global pandemic. The President has declared a national emergency. The Governor has issued a state-wide health emergency. As things stand, the government has forced all restaurants and bars in Chicago to shut their doors, and the schools are closed, too. The government has encouraged everyone to stay home, to keep infections to a minimum and help contain the fast-developing public health emergency…
Plaintiff has not demonstrated that it will suffer an irreparable injury from waiting a few weeks. At worst, Defendants might sell a few more counterfeit products in the meantime. But Plaintiff makes no showing about the anticipated loss of sales. One wonders if the fake fantasy products are experiencing brisk sales at the moment.

Hon Steven C Seeger Art Ask Agencyhttps://www.duetsblog.com/files/2020/03/Unicorn-Order.pdf