OPENING LINES OF JUDGMENTS 2023: DRAGONS, VENUS, BOMBS, WAR AND THE BEAUTY OF NIDDERDALE (TO NAME JUST A FEW)

December 22, 2023 · by · in Civil Procedure

It is now too close to Christmas to write the traditional material of this blog.  However it is a good time to review some of the best opening lines of judgments for 2023.  If you feel I have missed some please let me know.  Also this is not confined to the UK (or England and Wales), lawyers from other jurisdictions please get in touch if there are opening lines in your jurisdiction that may be of interest.

 

 

RADIO, SOMEONE STILL LOVES YOU

Mr Justice Julian Knowles in Radiocentre Ltd, R (On the Application Of) v Office of Communications (Rev1) [2023] EWHC 1977 (Admin)

 

“Radio, what’s new ?

Radio, someone still loves you”

Queen, ‘Radio Ga Ga’, 1984

Introduction

  1. The BBC recently celebrated its centenary. Over the years its output has broadened to encompass services which Lord Reith could never have imagined.

 

HALF A CENTURY OF LITIGATION

HHJ Russen KC:

Price v Nunn [2023] EWHC 3200 (Ch)

  1. This judgment follows the trial in a neighbours’ dispute over a right of way which has a litigation life of almost half a century, though it is not so stale as to dampen the appetites of the protagonists.  The dispute as now presented carries with it a procedural narrative and the consequences of six earlier, detailed judicial decisions which bear closely upon the remaining issues that now fall to be determined by me.  This highly unusual background adds a degree of complexity and certainly length to this judgment which follows the trial of those issues. Despite the factually contentious claim about a “prescriptive right of way” [1] having disappeared just before the trial, the intricacy of some of those issues is further enhanced by the need for the court, in 2023, to do its best to analyse what the line and status of the track in question might have been some two-and-a-quarter centuries ago.

 

NIDDERDALE: AN AREA OF OUTSTANDING NATURAL BEAUTY

HH Judge Davis-White KC :

 Wilkinson & Anor Rolph & Anor [2023] EW Misc 24 (CC)

Introduction

1.                  Nidderdale is an area of outstanding natural beauty in North Yorkshire. Among the over 16,000 people living in Nidderdale are the parties to this case.  At the heart of Nidderdale lies Pateley Bridge.  About three miles south of Pateley Bridge and nine miles or so north-west of Harrogate is the hamlet of Heyshaw.  Here the parties live:  in two adjoining properties out of the eleven or so comprised within the hamlet.   From the hamlet there are wonderful views, including views down from the heights to the River Nidd as it passes through Summersdale and Dacre Banks.  The beauty of the location and landscape is marred by the dispute between the parties that has been brought before the court.

IS BOMB DAMAGE WAR DAMAGE?

Lord Justice Coulson in University of Exeter v Allianz Insurance PLC (Rev1) [2023] EWCA Civ 1484

  1. The issue in this appeal is whether the loss and damage caused in 2021 by the controlled detonation of a hitherto undiscovered World War II bomb was “occasioned by war” and therefore excluded by the applicable insurance policy. “Unguided gut feeling” (as it is called in one of the authorities) may suggest that the damage caused by a controlled detonation 79 years after the bomb was dropped, and 76 years after the war ended, was not “occasioned by war”. But those same authorities make clear that the approach to legal causation is more nuanced than that, and subject to specific rules and principles. At first instance, HHJ Bird (sitting as a High Court judge in the TCC) (“the judge”) applied those principles and concluded that the, or at least a, proximate cause of the damage was the dropping of the bomb during World War II, such that the exclusion applied. The central issue on this appeal is whether he was right to do so.

 

EQUITY IS NOT NECESSARILY FAIR ON THE JUDGE

The Honourable Mr Justice Foxton in  The Serious Fraud Office & Anor v Litigation Capital Ltd [2022] EWHC 3053 (Comm)

    1. In the preface to the fourth edition of Meagher Gummow & Lehane’s Equity: Doctrines & Remedies (2002), the editors suggested of one jurisdiction that the prospect of “any principled development of equitable principles seems remote”, a state of affairs they sought to attribute to the “misguided endeavours” of one judge. They observed:

 

“That one man could, in a few years, cause such destruction exposes the fragility of contemporary legal systems”.

  1. This is now the fourth occasion in this litigation in which, as a commercial lawyer sitting in the Commercial Court, I have found myself neck-deep in the doctrines and principles of trusts law and equity, and I am concerned that my own endeavours (misguided or otherwise) may be provoking a similar reaction. However, as the Part 8 Claim which raises these issues was transferred into the Commercial Court from the Chancery Division, I have done my best to navigate unfamiliar legal pathways, and acknowledge with gratitude the assistance given by “expert guides” in the form of Ms Jones KC and Ms Reed KC, who have attempted to prevent me straying too far from equitable orthodoxy.

A NATIONAL TREASURER JUST HAS TO SUCK IT UP…

Dyson v MGN Ltd [2023] EWHC 3092 (KB), Mr Justice Jay.

 

  1. Sir James Dyson (“the Claimant”), in the eyes of many but not everyone, is a national treasure. Iconic inventor, designer, entrepreneur and philanthropist, he is not just a household name in this country but has an increasingly prominent profile worldwide, particularly in east Asia. He is the founder and chief engineer of the Dyson group of companies. The Claimant has invested vast sums in the UK, he currently employs at least 3,700 people, and – despite the fact that his business may fairly be described as “global” – all research, design and development (“RDD”) continues to be undertaken in this country, at least from concept, to drawing board and then up to an advanced stage. The Claimant carries out important charitable work, including setting up the James Dyson Foundation in 2002. In order to begin to make up the deficit in engineers in this country, he inaugurated the Dyson Institute of Engineering and Technology (“DIET”) in 2017 as a magnet for some of the most promising talent in this particular discipline. In recognition of his excellence over a variety of fields, the Claimant was awarded the Order of Merit in 2016 by the late Queen.

 

ARE THERE BADGERS?

Mr Justice Lane in Enterprise Hangars Ltd v Fareham Borough Council [2023] EWHC 2060 (Admin)

“Are there badgers at Solent Airport? The defendant, having carried out its own inspection, concluded that their presence is reasonably likely. It is common ground that, as a result, the claimant needed to provide a habitat survey/assessment concerning badgers, when making its application to the defendant, as local planning authority, for permission to undertake development at the Airport comprising nine mixed-use live/work hangar buildings for the aviation sector.”

 

IN CIVIL CASES WELL-INTENTIONED ATTEMPTS TO HASTEN VICTORY CAN HAVE THE VERY OPPOSITE EFFECT

Mr Justice Turner in Christie v Mary Ward Legal Centre & Anor [2023] EWHC 1814 (KB)

  1. There is no shortage of civil cases in which well-intentioned attempts to hasten victory have had the very opposite effect. The CPR provide for a number of such tempting routes including: the hearing of preliminary issues; strike outs; and summary judgment. Where all goes smoothly and according to plan these can prove to be very valuable tools. This case is a stark example of what can happen when things go wrong.

A DONKEY WITH DELUSIONS

ICC Judge Prentis in Lakey v Macabuag & Ors Re Mitt Wearables Ltd [2023] EWHC 1800 (Ch)

  1. During the conversations before Nathan Macabuag invited Benjamin Lakey to join him as a co-founder of Mitt Wearables Limited (“Mitt”), Mr Macabuag told him a story. In its condensed form, given in cross-examination, it was of Jesus “riding on a donkey and everyone is sort of like applauding because they’re happy that Jesus is coming back. So this donkey is walking into town, it’s full of a crowd of people, and this donkey is thinking ‘Yeah, wow, all these people for me, wow’. And the moral of the story is, obviously: don’t be an ass: it’s not you; it’s what you’re carrying; it’s the idea”.

A FITNESS PREDICAMENT

Mr Justice Michael Green in Fitness First Clubs Ltd, Re [2023] EWHC 1699 (Ch)

  1. Given my present physical predicament, it is entirely appropriate that I should be dealing with a company that operates a string of gym clubs!

ELEVEN FILES OF AUTHORITIES DID NOT BODE WELL…

Lord Justice Coulson in  URS Corporation Ltd v BDW Trading Ltd [2023] EWCA Civ 772

With 11 files of authorities, ranging from the well-known (Pirelli, Murphy) to the obscure (Tozer Kemsley), and disputes concerning scope of duty, accrual of the cause of action in tort, contribution and the Defective Premises Act 1972 (“DPA”), this appeal had all the hallmarks of a three-day examination in construction law. However, with the assistance of leading counsel on both sides, and the teams that they led, the issues were swiftly identified and then efficiently debated. Perhaps the most important concerned the date of the accrual of a cause of action in tort against designers of a defective building, in circumstances where the defect caused no immediate physical damage. Did the cause of action accrue when the building was completed to the defective design, or when the developers discovered that the buildings were structurally defective

 

THE TRANSIT OF VENUS AND COSTS BUDGETING

Master McCloud in Hadley v Przybylo (Costs, Costs budgeting, Costs lawyers, personal injury, case manager, recoverability) [2023] EWHC 1392 (KB)

  1. On rare occasions, like the transit of Venus or a triple Jovian eclipse but far less predictably, costs budgeting ceases to be a cause of judicial ennui, and raises instead something of interest legally. This case determines one such specific issue in relation to the principles of costs budgeting under the Civil Procedure Rules. In particular that issue is whether the inclusion of solicitor attendance time in a budget, for attending case management meetings with medical and other professionals in the course of management of the Claimant’s rehabilitation needs, and for meetings with financial and court of protection deputies said to be part of inputting into a Schedule of Loss are in principle costs which may be included in a budget and whether, if so, it is appropriate to include those in the ‘Issues and Statements of Case’ phase of the budget on Form H. The costs in the Claimant’s original budget were very substantial, and in that context I also touch on the question of the benefits of a judge ordering that parties must engage in ADR using appropriately qualified professionals in relation, specifically, to the costs budgets.

THE ADVOCATE WAS VALIANT, BUT…

Mr Justice Foxton in Milsom & Anor v Smith & Anor [2023] EWHC 255 (Comm)

It is customary on occasions like this to begin with a comment along the lines of, “Despite the valiant submissions of Mr, or Ms, X …” , before proceeding to reject all of those submissions. Very often that is simply an idle phrase, but it is not always so, and today is one of those occasions when it is far from an idle phrase, because faced with what, for the reason I am about to give, is factually an incredibly challenging case, Mr Curry has done an extremely good job of extracting the best that can be extracted from it. It is no reflection on him that I have been left with absolutely no doubt at the end of the evidence that the beneficial ownership of this property was and remains in Dr Gerald Martin Smith, and has never been in Ms Phyllis Smith or, now, her estate.

THE DRAGON IS A CREATURE OF MYTH… BUT IT FINDS ITS WAY INTO THE  LAW COURTS

HHJ Melissa Clarke in Evans v John Lewis Plc & Anor [2023] EWHC 766 (IPEC)

    1. The dragon is a creature of myth, dating back to ancient times and found in cultures across the world. As a mythic animal, its appearance, characteristics and personality are not fixed, but have been reinterpreted through the years to suit the purposes and culture of the person utilising it. In the earliest tellings, the dragon was malevolent, destructive or fear-inspiring, and often all three.  In the Old Testament, a dragon is used as a cypher for Satan himself and is described in terms including:

 

“His sneezes flash forth light, and his eyes are like the eyelids of the morning. Out of his mouth go burning torches; sparks of fire leap forth. Out of his nostrils smoke goes forth, as from a boiling pot and burning rushes. His breath kindles coals, and a flame goes forth from his mouth.”

 (Job 41:15, 18-21, King James Bible)

 

FOLLOW THE MONEY…

Lord Justice Males in  Floreat Investment Management Ltd v Churchill & Ors [2023] EWCA Civ 440

  1. This appeal is concerned with a sum of US $1.1 million which the claimant says was dishonestly diverted from the party to whom it ought to have been paid. It is an oddity of the case that the claimant which seeks to recover this sum is not the party to whom it ought to have been paid, but a company whose 100% shareholder and sole executive director was complicit in what is alleged to have been its wrongful diversion.

 

TRAFALGAR – NOT A TRIUMP ON THIS OCCASION

Mr Nicholas Thompsell in  Trafalgar Multi Asset Trading Company Ltd v Hadley & Ors [2023] EWHC 1184 (Ch)

For most people brought up in the United Kingdom, the word “Trafalgar” denotes a triumph – our most famous naval victory. For the unlucky individuals (“the pension investors“) who were persuaded to transfer their pension monies, often originally in very safe defined benefit schemes, for investment into an investment fund bearing that name, the word represents a disaster – the loss of much of these pension monies.

 

 

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