“3. In a number of authorities the court has distinguished between loss which was caused by the injunction and loss which arose from the litigation: see Bingley v. Marshall (1863) 9LTNS 144, at p 145; Gault v. Murray (1892) 21 OR 458, at p 462; Douglass v. Bullen(1913) 12DLR 652 , at p 655 and Newman Bros. Ltd. v. Allum, S.O.S. Motors Ltd. (In liq.) (No. 2) (1935) NZLR Suppl 17, at p 18. There is no reason to doubt that it is correct in principle to draw such a distinction if the facts warrant it. If the pendency of the litigation, rather than the making of the order, was the cause of the plaintiff's loss, the terms of the undertaking have no application, since the plaintiff has not sustained loss by reason of the order. Moreover, except in certain cases analogous to malicious prosecution, a defendant is not entitled to recover damages for loss resulting from legal proceedings brought against him - the only liability of the unsuccessful plaintiff is to pay costs. The court should no doubt scrutinize with care an assertion by a plaintiff that loss which has been suffered by a defendant has resulted from the litigation rather than from the making of the interlocutory order, since a plaintiff should not be allowed to evade payment of the price which he has agreed to pay for the grant of the injunction. In the end however the question becomes one of fact: did the making of the order cause the loss? The onus of proof must, in accordance with general principles, lie on the defendant who asserts that he sustained damage by reason of the order. 4. It was submitted on behalf of the appellant that it is enough that the making of the order should have been a cause of the damage, so that if both the making of the order and the continuance of the litigation are concurrent causes the undertaking will be applicable. However, in almost every case in which an injunction is granted the injunction will play some part in causing the party bound by it to act in accordance with its terms. To order a plaintiff to pay damages where it appears that the party bound by the injunction would have acted as he did even if the injunction had not been granted, would be to give the undertaking an effect obviously not intended. The party seeking to enforce the undertaking must show that the making of the order was a cause without which the damage would not have been suffered.”
“In the result, therefore, and perhaps not surprisingly, I reach the conclusion that the law as to the recoverability of loss suffered by reason of a cross-undertaking is as stated by Lord Diplock in his dictum in the Hoffmann-La Roche case, but with this caveat. Logical and sensible adjustments may well be required, simply because the court is not awarding damages for breach of contract. It is compensating for loss for which the defendant should be compensated (to apply the words of the undertaking). Labels such as common law damages and equitable compensation are not, to my mind, useful. The court is compensating for loss caused by the injunction which was wrongly granted. It will usually do so applying the useful rules as to remoteness derived from the law of contract, but because there is in truth no contract there has to be room for exceptions.”
“The law allows every person to employ its process for the purpose of trying his rights, without subjecting him to any liability, unless he acts maliciously and without probable cause.”
“if the intervening act was that of the defendant then, as a matter of public policy and common sense, the defendant could not rely on its own intervening negligence to break the chain of causation: see Normans Bay Ltd v Coudert Brothers[2004] EWCA Civ 215 .”
“A defendant cannot escape liability by saying that the damage would have occurred in any event because he would have committed some other breach of duty thereafter.”
'So far as causation is concerned, as a general principle of tort law, it is no answer for the defendant to say that, but for his wrongdoing which has in fact resulted in loss, the same loss would have been suffered because of some other tort or legal wrong was or would have been committed at a later point in time whether by the defendant or someone else. The principle in [sic] summarised in McGregor on Damages, 21st ed., at paragraph 8-007 as follows: “the “but for” test is usually applied by asking whether but for the wrongdoing the loss would have been lawfully suffered. This qualification ensures that a victim is not made worse off by further wrongdoing” (original emphasis)”’ '
“the “but for” test is usually applied by asking whether but for the wrongdoing the loss would have been lawfully suffered. This qualification ensures that a victim is not made worse off by further wrongdoing” (original emphasis)”’ (6) “Sole cause”
“[p]roceedings for contempt of court may be brought against a person who makes or causes to be made a false statement in a document, prepared in anticipation of or during proceedings and verified by a statement of truth, without an honest belief in its truth.” vi)PD22 § 3.7 creates a rebuttable presumption that the legal representative who signs a statement of truth on behalf of their client has explained to the client that in signing the statement of truth they would be confirming the client’s belief that the facts stated in the document are true, and has informed the client of the possible consequences to the client if it should later appear that the client did not have an honest belief in the truth of those facts (Liverpool Victoria Insurance Co Ltd v Yavuz[2017] EWHC 3088 (QB) at [12]). vii) As regards waiver, it is necessary to consider (i) whether there is a ‘reliance’ on the privileged material in respect of the issues in the case; (ii) the purpose of any such reliance; and (iii) the context of the case (PCP Capital Partners LLP v Barclays Bank Plc[2020] EWHC 1393 at [60]). The reference to any legal advice must be ‘sufficient’ and the party waiving must be relying on it to support or advance his case on an issue that the court has to decide (PCP at [49]). A ‘purely narrative reference’ to the giving of legal advice does not constitute a waiver, nor does a mere reference to the fact of legal advice (for example, saying “My solicitor gave me detailed advice. The following day I entered into the contract”: PCP at [49]). Moreover, the rationale for the waiver of privilege is the concept of fairness, which must be given regard to in considering this question: see PCP at [47(5)]-[47(6)]. viii) The ‘iniquity’ exception applies where the party seeking to rely on it shows a prima facie case that there is some iniquity (in the sense of a fraud, crime or equivalent underhand conduct in breach of a duty of good faith, or contrary to public policy or the interests of justice) and there is some abuse of the lawyer-client relationship going beyond the ordinary run of cases (see East-West United Bank SA v Gusinski[2024] EWHC 2223 (Ch) ; Al Sadeq v Dechert LLP[2024] EWCA Civ 28 , at [32]). It applies only in ‘very exceptional’ cases (Derby & Co Ltd v Weldon (No.7) [1990] 1 W.L.R. 1156, 1159). The Court of Appeal in Al Sadeq v Dechert LLP[2024] EWCA Civ 28 at [86] and [90] noted that Lord Sumner’s judgment in O'Rourke v Darbishire[1920] AC 581 “establishes that a mere allegation of iniquity in a pleading which is not evidence is insufficient to meet the merits threshold, even if it could not be struck out”