A lecture note on the ways a judgment can be obtained without a full trial.
DEFAULT JUDGMENT
is only for a and it may be entered in cases where the choose not to defend on the merits of the case or by the defendant failing to make any formal response to the proceedings. Entering a judgment in default of appearance is a purely administrative matter and involves no by the court of the merits of the plaintiff’s claim. The procedure is designed to prevent unnecessary expenditure of time, money and court resources in protracted litigation over undefended. Such a judgment binds the defendant and may be enforced against the defendant if not complied with.
Before a files a default of appearance, the plaintiff must first file an of service and an affidavit of search.
Where the defendant is in default of appearance, the plaintiff may enter – Final Judgment when the writ is endorsed For a liquidated demandrule 2 For the recovery of land onlyrule 5 Judgment For unliquidated damagesrule 3 For the detention of goods onlyrule 4 For the detention of goods and damagesrule 3 and rule 4 Final and Interlocutory judgment when the writs is endorsed with mixed claims(rule 6), the judgment maybe final as to part and interlocutory as to part or both combined. In each instance judgment (either final or interlocutory as appropriate) may be entered after the time limited for appearance.
CALCULATING TIME FOR ENTRY OF DEFAULT JUDGMENT
Where the defendant fails to enter an appearance, the plaintiff may “after the time limited for appearance” Order 13 rule 2. According to Order 12 rule 11 the time limited for appearance for the defendant to enter an appearance is 14 days after the service of the writ, inclusive of the date of service.
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PROCEDURE
Notice of motion supported by affidavits of search and service.
As to mode, place entry judgment, it is signed by the Master and Registrar, the document required to be produced are: (1) the original writ, (2) the original affidavit of service of the writ or endorsement of the defendant’s solicitor of acknowledgment of service, (3) two copies of the form judgment duly completed on proper paper and duly stamped by the Master and Registrar, (4) in a claim for possession of land, a certificate of the plaintiff’s solicitor or an affidavit of the plaintiff suing in person that no claim is made. The Master and Registrar will file the stamped copy judgment and seal and return the duplicate to the Party.
For actions by money lenders (rule 11) an application for leave should be made by notice of motion returnable not less than 2 clear days.
WHETHER PERMISSION IS REQUIRED
Generally under Order 13 a plaintiff may enter final judgment for default of appearance without first obtaining the leave of the court. Exceptions to this within Order 13 are found in rule 5 (claim for possession of immovable property), rule 12, actions on mortgages, judgment against the state, by rule 11 an action by money lender shall be done by an application for leave to enter judgment in default of appearance shall be made by notice of motion returnable not less than 2 clear days after service of the notice. The former “” can enter judgment in default under this rule for unpaid balance, and the action can be brought in the High Court (Newnham v Brown 1966 1 WLR 85).
SETTING ASIDE
The Court has the inherent to set aside its own judgment pursuant to Order 13 rule 9 of the High Court Rules 2007“where judgment is entered pursuant to this order, it shall be lawful for the court to set aside or very such judgment upon such terms as may be just”. In the Sierra Leonean case of BERTHAN MACAULEY V JIM DIAMANTOPOULOS 1962 2 S.L.L.R 14 Bankole Jones C.J held that “Even though the defendant treated the court with by not entering an appearance to the writ when the plaintiff wrote to tell him that he will sign a judgment within a certain time, yet this is not necessarily good for refusing to set aside the judgment if there is disclosed a defence on the merits and circumstances warrant it”. This was first held by Lord Atkins in the case of EVANS V BARTLAM 1937 1 ALL ER 646“Unless and until the court has pronounced upon the merits or by consent, it is to have power to revoke the expression of its coercive power where there has been obtained only by a failure to follow any of the rules of procedure. The primary consideration, is whether the defendant has merits to which the court should pay heed; if merits are shown, the court will not desire to let a judgment pass on which there has been no proper adjudication”. The principle which this case above postulates is that the Court should look at the merits of the case and not that the defendant for some unknown reason (which the Court would eventual know) the defendant would be denied his rights to be heard.
To further elucidate on this point Lord Justice Jenkins stated in the case of GRIMSHAW V DUNBAR 1953 1 ALL ER 354 – 355“… new trial should seldom be refused if ever merely on the ground that the applicant’s case appears a weak one … He is entitled to dispute his opponents case and cross – examine his opponent’s witness and he is entitled to call his own witnesses and give his own evidence before the court…”.
In the case of Alpine Bulk Transport Co. INC v Saudi Eagle Shipping Co. INC, the “Saudi Eagle” 1986 2 Lloyds REP 221 CA “…in the circumstances, we do not think the defendants have shown that they have a defence which has any reasonable prospect of success.”
In the case of VANN V AWFORD 1986 130 SJ 682 CA, the Court refused to set aside a judgment in default, because according to it the defendant was late to apply and it would not grant an extension of time until the defendant put forward a reasonable explanation, which he had failed to do, the Court of Appeal held that the judgment was to be set aside and that the other side (defendant) should be heard before judgment is entered. Nichols LJ stated(in VANN V AWFORD, above) that “on such an application, the primary consideration is not the explanation for the applicant’s delay but whether there is on the merits...”And it was re – echoed by Justice A Showers in the case of DECORE FURNITURE COMPANY V STERN 2007 SLHC 6 (judgment delivered 12th February 2007) “I believe that the defence shows triable issues and the matter ought to be heard on its merits …”, that has been the yardstick which the courts have used to evaluate whether or not to set aside default judgments.
In the case of Kamara v Davies and Others SLCA 13 before the of HON.
MRS. JUSTICE S. BASH-TAQI, JSC, (Presiding)HON. MS. JUSTICE S. KOROMA
and MR. JUSTICE E. E. ROBERTS, JA. The Court held a similar argument to set aside a judgment in default to be valid.
It should be noted that one of the principles of ; audi alterem partem, states that the other side should be heard in a matter before the court reaches a final determination of the matter before it (Per Mrs. Justice A.V.A. Awunor-Renner, J.S.C.
in Conteh v Sierra Leone Dock Workers Union SLSC 1).
The application to set aside is provided in Order 13 rule 9 which states that “Where judgment is entered pursuant to this Order, it shall be lawful for the Court to set aside or vary such judgment upon such terms as may be just”. And by precedents and necessary implication of the High Court Rules, the application to set aside is made to the Court through a notice of motion supported by an affidavit and this was also held to be valid in the case of Kabia v Conteh 1964/66 ALR S.L 354 at 359.
The procedure to set aside a judgment in default of appearance is that the defendant should have:
1. Entered an appearance (Memorandum of appearance) – SLOF v Pyne Bailey civ.app.1/73 Unreported Livesy Luke JSC held that your appearance gives you the cloak of legitimacy in the matter you wish to set aside. It can be entered by either the defendant himself or by his solicitor.
2. Notice of Motion + Affidavit. The affidavit should exhibit
- Writ by the Plaintiff instituting the original proceedings
- Default judgment against the defendant
- Memorandum of appearance
- Proposed defence (not mandatory but it should be themed in the affidavit and it gives the judge a better view of your case and preferable.
Daramy v National Telecommunications Commission Cc 142/08 2008 SLHC
Judgment delivered in February 2009 Hon Mr. Justice E. E. Roberts The Defendant/ made an application to set aside a judgment but the judge held that what the applicant is seeking in the alternative order prayed for is not a review of the award by the taxing officer but that "the costs allegedly thrown away are assessed by the Court". This was precisely what the court had declined to do and in any event the issue had since been taken to the taxing officer. In this regard I therefore find myself unable to grant the alternative order prayed for. For the above reasons the Defendants' application contained in Notice of Motion dated 27th January 2009 is therefore refused. No order as to costs.
/ Summary Judgment is a procedure whereby plaintiff applies for judgment against a defendant usually shortly after serving a defence to the plaintiff’s Statement of Claim, without proving the case at trial. The policy behind the procedure is to prevent delay in cases where there is no defence. In the case of Swain v Hillman & Another (2001) 1 ALL ER 91 the court held that “to give summary judgment against a litigant on paper without permitting him to advance his case before the hearing is a serious step. The interests of justice overall will sometimes require. Hence the discretion in the court to give summary judgment against the claimant but limited to other cases where on evidence, the claimant has no real prospect of succeeding...”
PROCEDURE
Summary judgment is only available in writ actions and where the defendant has entered an appearance. After the defendant has entered an appearance, the plaintiff can apply to the judge before or after the defendant files in his defence for summary judgment. An application is made to the judge by a judge’s and supported by an affidavit (Order 16 rule 2 (1)).
There are certain claims which fall outside the scope of summary judgment. It only applies to writs of summons. The following types of writs are outside the scope of summary judgment:
Claims for , slander, malicious prosecution and . These are claims where there is a right to trial by jury. Claims based on fraud, where there is so also a right to trial by jury. Claims based on fraud, where there is so also a right to trial by jury.
Admiralty action in rem action WHO MAY APPLY A Plaintiff against a defendant A defendant against a plaintiff on a counter claim(Order 16 rule 5(1))
A defendant based on his counter claim –rule 8 (1) and (2).
In apply for summary judgment the plaintiff should file to the judge by a judge summons supported by an affidavit that the defendant has no defence to the claim against him. If the defendant thinks he has a defence he may file an affidavit in opposition explaining that he has a defence or triable issues. If he succeeds the court may deny plaintiff the order. A judge may grant a summary judgment but may order a of that order based on a defendant’s counterclaim. The court may ask the defendant to pay costs (security for costs Order 26) and says that he will not grant the order but if the plaintiff succeeds there will be something to fall on.
A SUMMARY JUDGMENT CAN BE ENTERED against him where:
1. The order will be judgment based on default of attendance as was in the case Evans v Bartlam 1937 ALL ER 646. You may file a motion asking the court to set aside and the motion is supported by an affidavit and in the affidavit you state that you have a defence.
2. The defendant was at attendance in the hearing. The order may be granted based on the facts that the defendant’s defence has no triable issues. The defendant can apply to the court to set aside the order and the motion is to be supported by an affidavit. In the affidavit you state that you have a defence or there are triable issues which the court should try. The defendant can also apply to the court for a stay of execution for the order.
TEST FOR ENTERING SUMMARY JUDGMENT
The court may give summary judgment against a claimant or defendant on the whole of a claim or on a particular issue if––
(a) It considers that––
(i) That claimant has no real prospect of succeeding on the claim or issue; or 1.
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(ii) That defendant has no real prospect of successfully defending the claim or issue; and
(b) There is no other compelling reason why the case or issue should be disposed of at a trial.
An application for summary judgment is decided applying the test of whether the has a case with a real prospect of success, which is considered having regard to the overriding objective of dealing with the case justly. Whether there is a real prospect of success is the same test as that applied in applications to set aside default judgments (see E. D. and F. Man Liquid Products Ltd v Patel EWCA Civ. 472, CPLR 384). In Swain v Hillman 1 All ER 91 Lord Woolf MR said that the words ‘no real prospect of succeeding’ did not need any amplification as they spoke for themselves. The word ‘real’ directed the court to the need to see whether there was a realistic, as opposed to a fanciful, prospect of success. The phrase does not mean ‘real and substantial’ prospect of success. Nor does it mean that summary judgment will only be granted if the claim or defence is ‘bound to be dismissed at trial’. A claim may be fanciful where it is entirely without substance, or where it is clear beyond question that the statement of case is contradicted by all the documents or other material on which it is based (Three Rivers District Council v Bank of England (No. 3)). The judge should have regard to the witness statements and also to the question of whether the case is capable of being supplemented by evidence at trial (Royal Brompton Hospital NHS v Hammond BLR 297). The question of whether there is a real prospect of success is not approached by applying the usual standard of proof (Royal Brompton Hospital NHS Trust v Hammond). Many cases will succeed at trial, but will be unsuitable for summary judgment because there are complexities, disputes of fact, or further inquiries that need to be resolved through case management and trial before it can be said that the applicant should win on the balance of probabilities. Rather, summary judgment should only be entered where, on the untested written evidence, and whatever further evidence may be found in the future, there is no real prospect of success. Comments in Director of the Assets Recovery Agency v Woodstock EWCA Civ. 741, LTL 18/5/2006, to the effect that the onus on the applicant is to establish its version on the balance of probabilities has to be understood in this context. This need for a case which will succeed no matter what further work is done on behalf of the respondent explains why summary judgment was refused in Director of the Assets Recovery Agency v Woodstock despite obvious weaknesses in the respondent’s case because that case was not bound to be disbelieved. Applying a test of whether the claim is arguable will give grounds for appeal (Sinclair v Chief Constable of West Yorkshire (2000) LTL 12/12/2000). In E. D. and F. Man Liquid Products Ltd v Patel Potter LJ at regarded the terms ‘real prospect’ and ‘realistic prospect’ as interchangeable. Lord Woolf MR in Swain v Hillman said that summary judgment applications have to be kept within their proper role. They are not meant to dispense with the need for a trial where there are issues which should be considered at trial. Further, summary judgment hearings should not be mini-trials. They are simply summary hearings to dispose of cases where there is no real prospect of success.
Without allowing the application to become a mini-trial, there are occasions when the court has to consider fairly voluminous evidence in order to understand the facts that are in issue (Miles v ITV Networks Ltd EWHC 3134 (Ch), LTL 9/12/2003).
CONDITIONAL ORDERS
The rules provides that where it appears to the court possible that a claim or defence may succeed but improbable that it will do so, the court may make a conditional order provides that a conditional order is an order which requires a party:
(a) To pay a sum of money into court, or
(b) to take a specified step in relation to his claim or defence, as the case may be, and which provides that that party’s claim will be dismissed or his statement of case will be struck out if he does not comply.
Conditional orders are appropriate for cases in the grey area between granting judgment and dismissing the application. In Homebase Ltd v LSS Services Ltd EWHC 3182 (Ch), LTL 28/6/2004, the claimant made a claim against the defendant seeking five months’ licence fees for occupying a site. The defendant filed a witness statement to the effect that the claimant had orally agreed that the defendant need pay nothing until the claimant had obtained consent from its landlord to assign the land to the defendant. The claimant denied there was any such agreement. Despite the absence of contemporaneous documents, it could not be said that the defendant’s version of events was incredible. Entering summary judgment was therefore inappropriate, but because of the justifiable doubts about the defendant’s version, a conditional order was made requiring the whole sum claimed to be paid into court.
Amount to be paid in
If the court decides to make the respondent to the application pay money into court under a conditional order, it must decide how much should be paid in. The starting point has traditionally been the full amount of the claim. However, the court has a discretion, which it will exercise in accordance with the overriding objective. Obviously, the more uncertain the defence, the more likely it is that the court will order the full amount to be paid in. Another factor is the defendant’s ability to pay. Under the old rules (and similar principles are applied under the CPR, see Sweetman v Shepherd
(2000) The Times, 29 March 2000), Lord Diplock in M. V. Yorke Motors v Edwards 1 WLR 444 endorsed the following principles:
(a) Defendants seeking to limit a financial condition must make full and frank disclosure of their finances. This is done on affidavit or witness statement. It is common for defendants who realise that a conditional order may be made to produce such written evidence in advance of the summary judgment hearing, and to disclose it to the claimant on the claimant undertaking not to refer to it unless a conditional order is made.
(b) Reliance on a legal aid certificate as evidence of impecuniosities is not enough.
(c) The test is whether it will be impossible for the defendant to comply with the financial condition, as opposed to merely finding it difficult. An impossible condition is tantamount to entering judgment.
M. V. Yorke Motors were suing Mr Edwards for breach of warranty of title in relation to a contract for the sale of a car for £23,520. Conditional leave to defend was given, because the court was skeptical about his defence that he was only acting as the agent for a foreign buyer. By the time of the hearing Mr. Edwards was unemployed, living with his father and in receipt of legal aid with a nil contribution. The House of Lords substituted a condition of bringing £3,000 into court. A claimant who intends to invite the court to make a conditional order if summary judgment is not granted should give the defendant notice of that intention in advance of the hearing. If this is not done, the judge should not make such an order without giving the defendant an opportunity to be heard (and adduce evidence) on questions such as whether the defendant has the means to pay the amount contemplated (Anglo-Eastern Trust Ltd v Kermanshahchi EWCA Civ. 198, LTL 22/2/2002). Where money is paid into court in compliance with a conditional order, the claimant is a secured creditor for that amount in the event of the defendant’s bankruptcy (Re Ford 2 QB 211)
THE TEST WHERE THERE ARE COUNTERCLAIMS AND SETOFFS
The authorities as to what the courts would do when a defendant raises a set – off or counterclaim shows that there are four different classes or groups of such orders, namely:
Where the defendant can show an arguable set off, whether equitable or otherwise, he is entitled to leave to defend to the extent of the set – off and the court had no discretion Where the defendant set up a counter claim arising out of the same subject matter as the action and connected with the grounds of defence, the order should not be for unconditional leave to defend, even if the defendant admits the whole or part of the claim; Where the counter claim arises out of a separate and distinct transaction or is wholly foreign to the claim, judgment should be for the plaintiff with costs without a stay; the lack of clarity between classes (b), (c) and (d) gives the court freedom to respond to the perceived justice of the individual case (United Overseas Ltd v Peter Robinson Ltd, March 26 1991, CA Transcript 91/0297, per Bingham LJ In Axel Johnson Petroleum A.B v M.G Mineral Group A.G 1992 1 WLR 270, CA, the unsatisfactory present state of the law allowing a legal set – off of debts which are liquidated, even if unconnected and in equity of debts which are connected even if unliquidated but not any set – off for unliquidated and unconnected debts is explained.
It was considered by Simon Brown LJ in Esso Petroleum v Milton 1997 1 WLR 941 1.
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THE CHEQUE RULE
Cheques are one form of bill of exchange. Where goods or services are paid for by cheque, two contracts are entered into by the parties. The first contract is the underlying contract for the sale of goods or for the provision of services. The second contract is contained in the cheque, whereby the drawer of the cheque undertakes to pay the payee the sum stated. If a cheque is dishonoured, the seller has the option of suing on the underlying contract or on the cheque. If the seller sues on the underlying contract, the buyer is entitled to rely on any set-off that may be available in respect of that contract by way of defence to an application for summary judgment. However, if the seller sues on the cheque, the buyer is only permitted to raise defences relating to the cheque itself. The reason probably stems from the unconditional nature of a bill of exchange, as provided by the Bills of Exchange Act 1882, s. 3(1). As Lord Wilberforce said in Nova (Jersey) Knit Ltd v Kammgarn Spinnerei GmbH 1 WLR 713, bills of exchange ‘are taken as equivalent to deferred instalments of cash. Therefore English law does not allow cross-claims or defences to be made.’ The rule is regarded as being of considerable importance to the business community, and the courts will not ‘whittle away [the] rule of practice by introducing unnecessary exceptions to it under influence of sympathy-evoking stories’ (per Sachs LJ in Cebora SNC v SIP (Industrial Products)
Ltd 1 Lloyd’s Rep 271). It is only in exceptional circumstances that the court will allow a stay of execution when entering summary judgment for non-payment of a cheque.
The fact the claimant is a company in administration is not an exceptional circumstance (Isovel Contracts Ltd v ABB Building Technologies Ltd 1 BCLC 390). The cheque rule applies to:
(a) Cheques and bills of exchange;
(b) Direct debits (Esso Petroleum Co. Ltd v Milton 1 WLR 938);
(c) Letters of credit (SAFA Ltd v Banque du Caire 2 All ER (Comm) 567); and
(d) Performance bonds (Solo Industries UK Ltd v Canara Bank 1 WLR 1800).
The cheque rule does not apply in the context of statutory demands (Hofer v Strawson 2 BCLC 336, a case which turns on the wording of the Insolvency Rules 1986 (SI 1986/1925), r. 6.5(4)). There are some exceptional cases where summary judgment will not be given in a claim on a bill of exchange to. Before looking at these it is necessary to consider the nature of the claimant’s title to the bill of exchange.
Types of holder of a bill of exchange Under the Bills of Exchange Act 1882 there are four types of holder of a bill of exchange. A mere holder is a person in possession of the bill. Although a mere holder can sue on the bill and give a valid discharge (s. 38), any claim is prone to be defeated for want of consideration. A holder for value is a person in possession of a bill who has given consideration sufficient to support a simple contract, or who derives title directly or indirectly from a previous holder who gave value for the bill (s. 27). A holder for value cannot be defeated on the ground of want of consideration. A holder in due course is broadly a holder of a complete and regular bill who gave value for it in good faith without notice of any defect in the title of the person who negotiated it (s. 29). A holder in due course obtains title to the bill free from equities and defects in the title of the transferor. The fourth type of holder is one who derives title through a holder in due course, and who broadly has all the rights of a holder in due course (s. 29(3)). An application for summary judgment by a mere holder will always be defeated by a of want of consideration, whereas an application by a holder in due course should always succeed as such a holder takes free of equities. If the claimant’s title as a holder in due course is challenged by the defendant, judgment will only be given for the claimant if the claim to be a bona fide holder for value is supported by unchallenged or unchallengeable contemporary documents (Bank für Gemeinwirtschaft AG v City of London Garages Ltd 1 WLR 149). Holders for value are the most problematic category. They are also the most numerous, given that an immediate party to a bill cannot be a holder in due course (R. E. Jones Ltd v Waring and Gillow Ltd AC 670).
Fraud, duress and illegality To amount to a defence against a holder for value, an allegation of fraud, duress or illegality must be supported by evidence. A mere allegation in the defendant’s written evidence is insufficient (Bank für Gemeinwirtschaft AG v City of London Garages Ltd 1 WLR 149). Such a defence will not, however, avail against a holder in due course (see the Bills of Exchange Act 1882, s. 30(2)).
No consideration There will be a defence where the claimant is a mere holder who has given no consideration for the bill sued on. A total failure of consideration arises where a buyer lawfully rejects goods sold, the buyer being entitled to recover the price from the seller. Again summary judgment should be refused. Likewise, a liquidated partial failure of consideration is a defence pro tanto (Thoni GmbH & Co. KG v RTP Equipment Ltd 2 Lloyd’s Rep 282). In Isovel Contracts Ltd v ABB Building Technologies Ltd 1 BCLC 390 the defendant countermanded a cheque given to a subcontractor in payment of the sum due under an interim certificate in a building project. The certificate had been issued by the main contractor, and, before payment of the cheque, had been shown to be wrong, because later certificates showed no money at all was due at the time the cheque was given. The subcontract provided that in this event any overpayment would be deducted from the amounts payable under subsequent interim certificates. It was held that in these circumstances the defendant could not rely on failure of consideration as a defence to an application for summary judgment.
In Clovertogs Ltd v Jean Scenes Ltd Com LR 88 the Court of Appeal 34.41 held that an allegation that the claimant had procured two cheques by misrepresentation amounted to a defence in an application for summary judgment. This decision was described as surprising in Famous Ltd v Ge Im Ex Italia SRL (1987) The Times, 3 August 1987, and should be regarded as wrongly decided as it is inconsistent with other cases on bills of exchange. Following SAFA Ltd v Banque du Caire 2 All ER (Comm) 567 and Solo Industries UK Ltd v Canara Bank 1 WLR 1800, a distinction needs to be drawn between:
(a) Cases where there is a misrepresentation by a which was made directly to induce the execution of the bill of exchange (or other payment obligation covered by the cheque rule). In such cases, provided there is a real prospect of establishing the misrepresentation, summary judgment on the cheque (or other payment obligation) should be refused.
(b) Cases where an allegation of misrepresentation is in reality an allegation relating to the underlying contract of services or sale on which the payment obligation is based. In these cases summary judgment should be entered on the cheque (or other payment obligation), with no stay of execution. The courts need to be particularly astute in ensuring the cheque rule is not diluted by treating cases in this category as ones affecting the cheque or other payment obligation.
SETTING ASIDE
Setting aside a judgment in default is provided for in rule 11, it states “Any judgment given against a party who does not appear at the hearing of an application under rule 1 or rule 5 may be set aside or varied by the Court on such terms as it thinks just”. The application should be made with a Judge’s Summons supported by an affidavit. In the case of Sam Leigh v James Sando Marsh Kamara 2008 CC. 199/08 2008 Justice D.B Edwards held that to set aside a Summary Judgment, the primary requirements and or considerations is whether a defendant has a defence of merits to the action …. “I therefore could not see a defence to this action and would hold that there could be no defence to the action and Order that final judgment be entered for the plaintiff against the defendant for recovery of possession of land…” Osman Thomas Sons and Bros Ltd v Basrone & Firmger (export) Ltd Civ App N0. 7/81 judgment delivered 1983 (Sierra Leone Supreme Court) the immediate issue to determine whether the Learned Trial Judge in reviewing the evidence, drew proper inferences and evaluated the evidence correctly. The Learned Justice stated this aspect of the law as he understood it, and after making references to several authorities, which I do not consider necessary to deal with, set aside the judgment of the trial judge.
CONSENT JUDGMENT
Consent judgments and orders must be expressed as being ‘by consent’ and must be signed by the legal representatives for each party (or by the litigants in person where this is allowed provides that the signatures of the legal representatives may be those of the solicitors or counsel acting for the parties.
Consent orders in family proceedings A further distinction relates to family proceedings. In these the legal effect of a consent order derives from the order, not the agreement of the parties. Consequently, there is no jurisdiction to vary a matrimonial consent order (Thwaite v Thwaite Fam 1). Where such an order was obtained by fraud, misrepresentation or mistake, the remedy is to appeal or bring fresh proceedings (De Lasala v De Lasala AC 546 per Lord Diplock).
Consent orders as estoppels A consent order can act as an which can be raised if 61.13 fresh proceedings are brought alleging matters encompassed by the compromise (Keith v Walcott AC 482). However, whether this is the effect depends on what was agreed in the consent order, and it may be that one party has reserved the right to bring proceedings on certain allegations although they were raised in the compromised action (Rice v Reed 1 QB 54 and contrast Jameson v Central Electricity Generating Board 1 AC 455, where the terms of the settlement extinguished a claim against a concurrent tortfeasor). Particular care must be taken when entering into a consent order to compromise a claim for . Such a consent order may be construed as replacing the agreement on which the proceedings were based, or it may be construed as simply replacing the terms of the original contract expressly dealt with in the consent order, with the rest of the original contract still subsisting (as in Paige v Webb EWCA Civ. 1220, LTL 26/7/2001).
TABLE OF CASES — FREE DOWNLOAD LINKS
Authorities cited in this paper, with the best free public source located for each.
A. Sierra Leone authorities
Berthan Macauley v Jim Diamantopoulos (CC 2 of 1962) SLSC 51; cited as 1962 2 S.L.L.R. 14 — — source PDF of the same matter:
Closest later related file: Decore Furniture Company & Anor v Union Trust Bank Ltd (CC 534 of 2007) SLHC 6.
Kamara v Davies and Others SLCA 13 — matching published appeal: Dr Raymond S. Kamara v Virginia Ayo Davies (CIV 22 of 2007) SLCA 6 (18 June 2009):
Osman B. Conteh v Sierra Leone Dock Workers Union (SC CIV APP 5 of 1984) SLSC 4 / SLSC 7 (cited as SLSC 1) — Kabia v Conteh (CIV APP 16 of 1965) SLCA 1; 1964–66 ALR S.L. 354 — — source:
Sierra Leone Oxygen Factory Ltd v P.B. Pyne-Bailey (CIV APP 1 of 1973) SLSC 5 (cited as SLOF v Pyne Bailey civ.app.1/73 Unreported) — Osman Thomas Sons and Bros Ltd v Bastone & Firminger (Export) Ltd (SC CIV APP 7 of 1981) SLSC 26 (28 April 1983) — B. England and Wales (and other common-law) authorities Evans v Bartlam AC 473; 2 All ER 646 — House of Lords.
Swain v Hillman EWCA Civ 3053; 1 All ER 91 — ED & F Man Liquid Products Ltd v Patel EWCA Civ 472; CPLR 384 — Three Rivers District Council v Bank of England (No 3) UKHL 16; 2 AC 1 — — earlier related hearing:
Royal Brompton Hospital NHS Trust v Hammond EWCA Civ 206; BLR 297 — Director of the Assets Recovery Agency v Woodstock EWCA Civ 741 — Miles v ITV Networks Ltd EWHC 3134 (Ch) — Homebase Ltd v LSS Services Ltd EWHC 3182 (Ch) — M.V.
Anglo-Eastern Trust Ltd v Kermanshahchi EWCA Civ 198 — Esso Petroleum Co Ltd v Milton 1 WLR 938 (CA) — Isovel Contracts Ltd v ABB Building Technologies Ltd 1 BCLC 390; BCLC 390 — SAFA Ltd v Banque du Caire 2 All ER (Comm) 567 (CA) — Solo Industries UK Ltd v Canara Bank 1 WLR 1800; EWCA Civ 1059 — R.E.
Thoni GmbH & De Lasala v De Lasala AC 546 (PC) — Jameson v Central Electricity Generating Board 1 AC 455; UKHL 51 — Paige v Webb EWCA Civ 1220 —