“The court may strike out a statement of case if it appears to the court – (a) that the statement of case discloses no reasonable grounds for bringing or defending the claim; (b) that the statement of case is an abuse of the court’s process or is otherwise likely to obstruct the just disposal of the proceedings; or (c) that there has been a failure to comply with a rule, practice direction or court order.”
“Both the application to strike out and the application for summary judgment are summary applications. The application for summary judgment is made by defendants against a claimant, which is less usual than an application by a claimant for judgment against a defendant. The authorities deal mainly with applications by claimants. The correct approach on applications by defendants is, in my judgment, as follows: i) The court must consider whether the claimant has a “realistic” as opposed to a “fanciful” prospect of success: Swain v Hillman[2001] 2 All ER 91 ; ii) A “realistic” claim is one that carries some degree of conviction. This means a claim that is more than merely arguable: ED & F Man Liquid Products v Patel[2003] EWCA Civ 472 at [8]; iii) In reaching its conclusion the court must not conduct a “mini-trial”: Swain v Hillman; iv) This does not mean that the court must take at face value and without analysis everything that a claimant says in his statements before the court. In some cases it may be clear that there is no real substance in factual assertions made, particularly if contradicted by contemporaneous documents: ED & F Man Liquid Products v Patel at [10]; v) However, in reaching its conclusion the court must take into account not only the evidence actually placed before it on the application for summary judgment, but also the evidence that can reasonably be expected to be available at trial: Royal Brompton Hospital NHS Trust v Hammond (No 5)[2001] EWCA Civ 550 ; vi) Although a case may turn out at trial not to be really complicated, it does not follow that it should be decided without the fuller investigation into the facts at trial than is possible or permissible on summary judgment. Thus the court should hesitate about making a final decision without a trial, even where there is no obvious conflict of fact at the time of the application, where reasonable grounds exist for believing that a fuller investigation into the facts of the case would add to or alter the evidence available to a trial judge and so affect the outcome of the case: Doncaster Pharmaceuticals Group Ltd v Bolton Pharmaceutical Co 100 Ltd[2007] FSR 63 ; vii) The court should be especially cautious of striking out a claim in an area of developing jurisprudence, because in such areas decisions on novel points of law should be decided on real rather than assumed facts.”
“ …the most important principle of all is that justice must be done. But this does not mean justice to the plaintiff alone. It is not just to a plaintiff to strike out his claim without a trial unless it has no real prospect of success. It is not just to defendants to subject them to a lengthy and expensive trial to defend their integrity when there is no foundation in the evidence for the attack upon it.”
“Listed Grade I as being of architectural and historic importance, Wentworth Woodhouse comprises two 18th century houses constructed on the site of an original house built for Sir Thomas Wentworth in around 1630. The principal façade is described by Pevsner as “exceedingly ambitious – with a 600-ft (frontage) the longest front of any English country house”, and was designed by Henry Flitcroft. Internally the principal house includes some of the finest reception rooms in the country such as the Marble Room, Painted Drawing Room, Pillared Hall, Statuary Room, State Dining Room, Whistlejacket Room and Van Dyck Room. Many of the artefacts within the house are designed by some of the country’s greatest known specialists such as Robert Adam and John Gibson. The stables were designed in 1768 by John Carr on a scale to emulate the house and some of these have now been converted to provide classrooms, offices and workshops. In addition, there is a modern extension to the stables providing lecture rooms, indoor swimming pool and gymnasium etc. A residential block, situated to the north of the Property, was designed to provide accommodation for 120 students. The whole Property stands in about 83.5 acres of mature parkland.”
“It is difficult to exaggerate the importance of Wentworth Woodhouse. In architectural terms it is one of the half dozen most important English 18th - century houses. … The interiors are the finest of all the Georgian era and span the whole of the 18th century, their design, decoration and furnishing being the work of three munificent patrons: both the 1st and 2nd Marquesses of Rockingham and the 4th Earl Fitzwilliam, who commissioned a succession of architects, painters, sculptors and craftsmen to embellish the place. … The failure of Wentworth Woodhouse to become a “stately home” open to the public after the Second World War and thus to have secured its future, like Chatsworth or Woburn, is an architectural tragedy. Instead the house has been dogged by repeated misfortune: the premature death in a flying accident in 1948 of its then owner, the 8th Earl Fitzwilliam, without male issue; piecemeal sales of contents; a split inheritance of chattels and the Property; and, not least, open cast coal mining of the park at the instigation of Emmanuel Shinwell, Minister of Fuel in Attlee’s Labour Government.”
“Not at any time to sever or permit or suffer the severance of any of the Protected Fittings from the fabric of the said mansion house otherwise than temporarily for the purpose of protecting repairing cleaning or restoring the Protected Fittings or exhibiting them elsewhere in the United Kingdom for periods not exceeding six months.”
“In consideration of the sum of£50,000 now paid by the Trustees to the Settlor and receipt whereof the Settlor hereby acknowledges the Settlor hereby covenants for himself and his personal representatives with the Trustees that within 28 days of the full discharge of the Charge (whether before or after the death of Mr Haydon-Baillie) he (or his personal representatives as appropriate) will transfer Wentworth Woodhouse and the Chattels and the Share to the Trustees to be held by them on the trusts of the Succession Trust.”
“The solicitors have confirmed that I am not in a position to revoke the Wentworth Woodhouse Succession Trust and that I am not entitled to receive capital payments from the Trust.”
“As far as this situation is concerned, Mr Haydon-Baillie had no knowledge of this, as he has been in the Churchill Priory for at least six weeks. Prior to that he was extremely unwell, and unable to deal with his own personal affairs. He is likely to be in the Churchill Priory for some considerable time. We therefore request on his behalf, that he be allowed to keep his possessions, which are presently in the Property known as Wentworth Woodhouse for a few more months. The reason for that is that he is not in a fit state to arrange for the collection of those possessions.”
“I know that the bank and myself are both prepared to see a solution where the loan is repaid in full, at an appropriate date, and we need to ensure that such an opportunity is not missed.”
“Why should Mr H-B now wish you to go with a lower offer?”
“This avenue was closed”
“I appreciate the need to help your client as much as you can but in these circumstances, I think you need the clearest and most unquestionable reasons for straying from the simple strategy of selling to the highest bidder in order to net H-B the best return.”
“all that the freehold land and premises situate at and known as Wentworth Woodhouse Yorkshire as registered at HM Land Registry with title absolute under title numbers SYK270992.”
“ … the sum of two million one hundred thousand and fifty four pounds (£2,100,054 ) which shall be apportioned between the land and premises and the Protected Fittings as defined by the conveyance dated1 March 1989 … such apportionment to be determined by a valuation of the Protected Fittings by Phillips.”
“Save as herein expressly provided all fixtures and fittings are included in the sale.”
“I had no Defence to the Possession Proceedings based on arrears of instalments and was in any event wholly unable to deal with my business affairs.”
“…….. if Haydon-Baillie wants to pursue a claim for any chattels, he can join the purchaser in proceedings when the purchasers’ identity is revealed in due course (e.g. by search of the register once registration has taken place).”
“It must be emphasised that a clear understanding and full appreciation of these facts and circumstances are essential for the court to comprehend ………… (3) The Mental and Physical Health of Wensley Grosvenor Haydon-Baillie, including admission as an emergency to hospital on several occasions and covering all of the material dates.”
“I first met Mr Haydon-Baillie in September 1998 he was admitted into hospital with a major depressive illness that required intensive treatment, he was discharged on the 12th December and was followed up in out patients and day care since then. He is continuing on medication I have to say here and now that Mr Haydon-Baillie’s illness was of the most severe nature possible, if he had not received treatment there was the risk that this man would have killed himself. His current medication are anti-depressants, Sertraline and Mirtazipine and he occasionally needs a little bit of Chlorpromazine, side effects of this are weight gain, sweatiness and occasionally sleep disturbance. Turning to the point in your letter about the duration of the illness it is my belief that having talked to other doctors involved in Mr Haydon-Baillie’s care before I got to know him that he had been ill for at least a year prior to his admission. I am glad to say that he has responded well to treatment but is still not well enough to conduct his own affairs. I am able to confirm that the illness prevents him looking after himself fully and he is certainly not well enough to work and will not be able to work now I suspect for some months to come, possibly more than a year.”
“ate the skin off his hands” and “he tore off strips of flesh and that it was horrible to watch”
“Claimants will seek by Disclosure and Special Disclosure by Order of Court all the records held by each of the thirteen Defendants and are deeply concerned that any one or all of these Defendants may have, or contemplated, destroying records and/or creating others to frustrate the attempts of the Claimants to determine the Truth in the Royal Courts of Justice.”
“Persons Under Disability”
“However, finality in litigation is also important, and the rules as to capacity are not designed to provide a vehicle for re-opening litigation which, having apparently been properly conducted (whatever the wisdom of the individual decisions in relation to it), has for long been understood to be at an end”
“The power of sale is given to the mortgagee for his own benefit, to enable him the better to realise his debt. Accordingly, his own interests come before those of the mortgagor. The mortgagee is not a trustee of his own power of sale for the mortgagor and nor is he under a general duty of care to the mortgagor. He can, therefore, act in his own interests in deciding whether or not to exercise his power of sale. If the mortgagee does decide to exercise his power of sale, he can likewise act in his own interest in deciding when to exercise it, subject to his duty to obtain the best price reasonably obtainable. He is entitled to sell even though a sale (or the time, or the terms, of the sale) may be disadvantageous to the mortgagor. However, while the mortgagee may look to his own interest, he must nevertheless pay some regard to the interests of the mortgagor. Thus, the mortgagee, owes a general duty in equity to the mortgagor and to others with an interest in the equity of redemption (including subsequent incumbrancers) to act in good faith and to use his powers for proper purposes. Insofar as consistent with the mortgagor’s right to put his own interests first, the mortgagee must act fairly towards the mortgagor. Where their interests conflict, he is not entitled to act in a manner which unfairly prejudices or wilfully and recklessly sacrifices the interests of the mortgagor. Depending on the particular facts and circumstances of the case, he may also owe other duties in equity; the equitable obligations are flexible and will be adjusted to fit the requirements of the time.”
“There is no doubt that the general maxim of the law is, that what is annexed to the land becomes part of the land; but it is very difficult, if not impossible, to say with precision what constitutes an annexation sufficient for this purpose. It is a question which must depend on the circumstances of each case, and mainly on two circumstances, as indicating the intention, viz., the degree of annexation and the object of the annexation. When the article in question is no further attached to the land, than by its own weight it is generally to be considered a mere chattel; see Wiltshear v Cottrell 1E& B674, and the cases there cited. But even in such a case, if the intention is apparent to make the articles part of the land, they do become part of the land: see D’Eyncourt v Gregory LR3 Eq 382…….Perhaps the true rule is, that articles not otherwise attached to the land other than by their own weight are not to be considered as part of the land, unless the circumstances are such as to shew they were intended to be part of the land, the onus of shewing that they were so intended lying on those who assert that they have ceased to be chattels, and that, on the contrary, an article which is affixed to the land even slightly is to be considered as part of the land, unless the circumstances are such as to shew that it was intended all along to continue a chattel, the onus lying on those who contend that it is a chattel.”
“….articles of ornament are frequently held not to have become fixtures despite having been affixed to the property since many such articles cannot be enjoyed without some degree of affixation. So paintings, tapestries and antique panelling and fireplaces have all been held to remain chattels even though affixed by nails or screws. In each case the court came to the conclusion that the purpose of the annexation was the better enjoyment of the chattel as a chattel. By contrast, where the court comes to the conclusion that the objects were attached to the property for the purpose of its permanent beautification, the attached article will probably be held to be a fixture. So statues forming part of the architectural design of the building were held to be part of the property, even though they were resting on the ground only by their own weight. So also were ornamental wood carvings by Grinling Gibbons which were part of the original decorations of a mansion house, even though they had been moved within the house; and frescoes forming part of the permanent decoration of a cinema. In many cases the articles in question could equally well be chattels or fixtures, and in such cases the purpose of the annexation may be decisive. So where garden ornaments resting by their own weight could have been part of the permanent design of the garden or merely placed in the garden to be enjoyed as chattels, the fact that the owner of the land regarded them as features of the garden showed that they were fixtures.”
“The rule of law depends upon the existence and availability of courts and tribunals to which citizens may resort for the determination of differences between them which they cannot otherwise resolve. Litigants are not without scrupulous examination of all the circumstances to be denied the right to bring a genuine subject for litigation before the court…This does not however mean that the court must hear in full and rule on the merits of any claim or defence which a party to litigation may choose to put forward.”
“The underlining policy interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. I would not accept that it is necessary before abuse may be found, to identify any additional elements such as a collateral attack on a previous decision or some dishonesty, but where those elements are present the later proceedings will be much more obviously abusive, and there will rarely be a finding of abuse unless the later proceeding involves what the court regards as unjust harassment of a party. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in the later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits-based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. As one cannot comprehensively list all possible forms of abuse, so one cannot formulate any hard and fast rule to determine whether, on given facts, abuse is to be found or not. Thus while I would accept that lack of funds would not ordinarily excuse a failure to raise in earlier proceedings an issue which could and should have been raised then, I would not regard it as necessarily irrelevant, particularly if it appears that the lack of funds has been caused by the party against whom it is sought to claim. While the result may often be the same, it is in my view preferable to ask whether in all the circumstances a party’s conduct is an abuse than to ask whether the conduct is an abuse and then, if it is, to ask whether the abuse is excused or justified by special circumstances. Properly applied, and whatever the legitimacy of its descent, the rule has in my view a valuable part to play in protecting the interests of justice.”
“It is one thing to refuse to allow a party to relitigate a question which has already been decided; it is quite another to deny him the opportunity of litigating for the first time a question which has not previously been adjudicated upon. This latter (though not the former) is prima facie a denial of the citizen’s right of access to the court conferred by the common law and guaranteed byArticle 6 of the Convention for the Protection of Human Rights and Fundamental Freedoms (1953). While, therefore, the doctrine of res judicata in all its branches may properly be regarded as a rule of substantive law, applicable in all save exceptional circumstances, the doctrine now under consideration can be no more than a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression.”
“Conversion of goods can occur in so many different circumstances that framing a precise definition of universal application is well nigh impossible. In general, the basic features of the tort are threefold. First, the defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference. If these cause damage they may give rise to claims for trespass or in negligence, but they do not constitute conversion.”