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Published online by Cambridge University Press: 20 January 2015
How should a civil court use a relevant conviction? Some have argued that a civil claim contesting the factual basis of a conviction should be struck out as an abuse of process unless new evidence is presented which “entirely changes the aspect of the case”. Such a high evidential requirement is wrong in principle, inconsistent with section 11 of the Civil Evidence Act 1968, and unjust in practice. The law should recognise that there are two distinct types of cases. The first is concerned with truly abusive claims, where the later civil suit is brought for an improper purpose or otherwise similarly abusive; there a high level of new evidence should be required. The second deals with challenges to convictions which are in principle permissible; there, if on the facts they have no real prospect of success, an application for summary judgment by the other party is the solution.
1 The so-called Phosphate Sewage test, see note 120 below.
2 For the essence of which see text to note 57 below.
3 J. v Oyston [1999] 1 W.L.R. 694.
4 A term “more helpful” than “collateral purpose”: see Crawford Adjusters v Sagicor [2013] UKPC 17, [2014] A.C. 366, at [62], per Lord Wilson S.C.J., when discussing the tort of abuse of process. See also Walpole v Partridge & Wilson [1994] Q.B. 106, 120.
5 See Hunter v Chief Constable [1982] A.C. 529, 536; Walpole [1994] QB 106. Although Lord Diplock was careful to not to limit abuse of process to “fixed categories” (see also text to note 144 below), in practice these three bases for it are those identified in the modern cases in this area.
6 Through CEA 1968, s. 11.
7 CEA 1968, s. 11(2)(a); see also Hunter [1982] A.C. 529, 544, per Lord Diplock.
8 Reported in Hunter [1982] A.C. 529. In 1991, a further appeal by Mr. Hunter and five others against their convictions for murder was allowed by the Court of Appeal (Criminal Division), on the grounds of new and compelling evidence of police misconduct in the obtaining of confessions, which had constituted the principal evidence against the accused at their trial.
9 See Hunter [1982] A.C. 529, 537.
10 Ibid., at p. 538.
11 Given the trial judge's direction recounted by Lord Diplock at pp. 538–39; see also p. 542.
12 Ibid., at pp. 536, 539, 541; J.A. Jolowicz, “Lest Decisions Conflict: Once Given Not To Be Reopened” [1989] C.L.J. 196.
13 See e.g. Brinks Ltd. v Abu-Saleh (No. 1) [1995] 1 W.L.R. 1478.
14 CXX v DXX [2012] EWHC 1535 (QB); 162 N.L.J. 806. For a Case Note, see R.J. Kelly, “Civil ‘Relitigation’ of a Criminal Conviction” [2012] Jo. Crim. L. 369.
15 An offence contrary to Offences Against the Person Act 1861, s. 58.
16 Spencer J. heard the application for permission to appeal and the appeal together for reasons of convenience. The defendant had, for good measure, also taken the opportunity to counter-claim for malicious prosecution (a claim doomed to fail, so long as his conviction stood: Basebé v Matthews (1867) L.R. 2 C.P. 684).
17 See at paras. [34]–[35] and [58]–[62].
18 McCauley v Vine [1999] 1 W.L.R. 1977.
19 See generally J. Stapleton, “Civil Prosecutions Part 1: Double Jeopardy and Abuse of Process” (1999) 7 Torts L.J. 244; and “Civil Prosecutions Part 2: Civil Claims for Killing or Rape” (2000) 8 Torts L.J. 15; N. Zaltzman, “Relitigating the Admissibility of a Confession: Collateral Attack on Acquittal in Subsequent Criminal Proceedings” [1999] Crim.L.R. 886; and M. Hirst, “Contradicting Previous Acquittals” [1991] Crim.L.R. 510.
20 E.g. Ali Daar v Chief Constable of Merseyside Police [2005] EWCA Civ 1774; [2005] Po. L.R. 376.
21 E.g. In re Norris [2001] UKHL 34; [2001] 1 W.L.R. 1388; Re Y [2011] EWHC 2427.
22 Reichel v Magrath (1889) 14 App. Cas. 665; and R. v L. [2006] EWCA Crim 1902; [2006] 1 W.L.R. 3092.
23 Such as unfair dismissal by an Employment Tribunal, unlawful killing by a Coroner's Court, and breach of the Prison Rules by an Independent Adjudicator. See recently, J.R. Spencer, “The Ghost of the rule in Hollington v Hewthorn: Exorcist required” [2014] C.L.J. 474.
24 See Pollock, F. and Maitland, F.W., The History of English Law Before the Time of Edward I, 2nd ed., vol. I (Cambridge 1898), 476–77Google Scholar.
25 Forfeiture Act 1870, s. 1. Cf. P.P. (1833), XXIX, 393, paper 765, Felon's Property Returns for 1823–1833: £3,200 forfeited, of which the majority was held in trust for the felon or his family. See also e.g. HC Deb. vol. 200 cols. 931–37 (30 March 1870) and Baker, J.H., An Introduction to English Legal History, 4th ed. (London 2002)Google Scholar, p. 509, suggesting that enforcement had tailed off by the eighteenth century.
26 M.N. Dyson, “The Timing of Tortious and Criminal Actions for the Same Wrong” [2012] C.L.J. 85.
27 See generally P. Handler, “The Court for Crown Cases Reserved” (2011) 29 L.H.R. 259.
28 The prosecution, though long brought by the victim, being in the name of the Crown: Dyson, “The Timing”, pp. 105–9.
29 Though see the recent discussion in J. Murphy, “Rethinking Tortious Immunity for Judicial Acts” (2013) 33 L.S. 455, arguing for a reduction in the level of such immunity. See recently O'Shane v Harbour Radio Pty. Ltd. [2013] NSWCA 315.
30 Basebé (1867) L.R. 2 C.P. 684.
31 See e.g. Peel, E. and Goudkamp, J. (eds.), Winfield and Jolowicz on Tort, 19th ed. (London 2010)Google Scholar, paras. 20–01 to 20–07.
32 See e.g. Darker v Chief Constable of the West Midlands [2001] 1 A.C. 435, 455–56, per Lord Cooke.
33 R v Skinner (1772) 98 E.R. 529.
34 Marrinan v Vibart [1963] 1 Q.B. 528.
35 Arthur J.S. Hall & Co. v Simons [2002] 1 A.C. 615.
36 Medcalf v Mardell [2002] UKHL 27; [2003] 1 A.C. 120, at [53], per Lord Hobhouse of Woodborough.
37 Westcott v Westcott [2008] EWCA Civ 818, [2009] QB 407.
38 Arthur J.S. Hall [2002] 1 A.C. 615, 740 per Lord Hobhouse.
39 Jones v Kaney [2011] UKSC 13; [2011] 2 A.C. 398, at [68], per Lord Brown of Eaton-under-Heywood S.C.J.: in addition to their contractual duties to the party retaining them, there might be exceptionally egregious behaviour needing a remedy.
40 Darker [2001] 1 A.C. 435.
41 See e.g. Darker [2001] 1 A.C. 435, 439, 453; Roy v Prior [1971] A.C. 470, 477–78.
42 Hargreaves v Bretherton [1959] 1 QB 45. They peaked as a means of controlling witnesses but, by the 1870s, they had died out, as prosecutions and civil suits: Schneider, W.E., “Perjurious Albion: Perjury Prosecutions and the Victorian Trial” in Lewis, A. and Lobban, M. (eds.), Law and History: Current Legal Issues 2003, vol. 6 (Oxford 2004)Google Scholar, esp. 344. These had occasionally reached the media, e.g. the case of the Reverend Henry Hatch: The Times, May 18, 1860.
43 See Merryweather v Nixan (1799) 8 T.R. 186; and Everest, L.F. (ed.), Everest and Strode's Law of Estoppel, 3rd ed. (London 1923), 61–62Google Scholar.
44 Law Reform (Married Women and Tortfeasors) Act 1935, s. 6(1)(c) provided no such protection in respect of joint liability and, indeed, contributions could be sought from other tortfeasors. See now the Civil Liability (Contribution) Act 1978, s. 3.
45 See e.g. Colburn v Patmore (1834) 149 E.R. 999. See also Burrows v Rhodes and Jameson [1899] 1 Q.B. 816.
46 See e.g. Gray v Thames Trains [2009] UKHL 33; [2009] 1 A.C. 1339, e.g. at [29]–[55]. See further at note 78 below and the text thereto.
47 See recently Wong v Parkside Health NHS Trust and another [2001] EWCA Civ 1721; [2003] 3 All E.R. 932.
48 E.g. J. Spencer, “Legislate in Haste, Repent at Leisure” [2010] C.L.J. 19.
49 Adorian v Commissioner of Police of the Metropolis [2009] EWCA Civ 18; [2009] 1 W.L.R. 1859; in the event, Adorian's claim failed at trial: [2010] EWHC 3861 (QB).
50 Hollington v F. Hewthorn & Co. [1943] KB 587. On the historical development before and after, see M.N. Dyson, “Civil Law Responses to Criminal Judgments in England and Spain” (2012) 3 Journal of European Tort Law 308.
51 Roy [1971] A.C. 470, where the House of Lords refused to strike out such a claim.
52 See generally Dyson, “Civil Law Responses”, esp. pp. 320–22.
53 Cutler v Dixon (1585) 76 E.R. 886.
54 Jones [2011] UKSC 13; [2011] 2 A.C. 398, at [11].
55 See e.g. Petrie v Nuttal (1856) 156 E.R. 957, 960; Castrique v Imrie and Tomlinson (1870) L.R. 4 HL 414, 434. Libel was versatile enough that it has even been possible to clear the name of a dead person by use of a libel action, despite the rule of law that dead men have no reputations to protect: Dean, J., Hatred, Ridicule or Contempt (London 1954), 96–117Google Scholar, on W.E. Gladstone and prostitutes, and the libel case brought against his sons, Wright v Gladstone.
56 Goody v Odhams Press Ltd. [1967] 1 Q.B. 333. See also e.g. Hinds v Sparks [1964] Crim.L.R. 717.
57 Lord Pearson, Law Reform Committee Fifteenth Report: The Rule in Hollington v Hewthorn (1967), paras. [13], [14].
58 Ibid., at para. [14].
59 As noted by M. Dean, “Law Reform Committee: Fifteenth Report on the Rule in Hollington v. Hewthorn” (1968) 31 M.L.R. 58, who in fact argued that a later civil court would, without further evidence, have to ignore the conviction in practice.
60 See e.g. on France, Viney, G., Introduction à la responsabilité, 3rd ed. (Paris 2008), 292–315Google Scholar; on Spain, see Dyson, “Civil Law Responses”, pp. 329–39.
61 There are other reasons to have such a mechanism, e.g. as a useful case management tool to allow one test case to go forward. Other claims would be stayed, but the claimants in the stayed actions would technically not be parties to the test case, so could attempt to challenge its findings at a later date. The jurisdiction to stay such collateral attacks as an abuse of process provides a solution: Zuckerman, A., Zuckerman on Civil Procedure: Principles of Practice, 3rd ed. (London 2013)Google Scholar, para. 25.138.
62 Lord Diplock in Hunter [1982] A.C. 529, at 543, holds that Hollington v Hewthorn is not an authority on where an identical question is raised in a civil case after its determination in a criminal one. This is because, he noted, in Hollington the issue was not identical: the tort of negligence was not the same as the crime of careless driving under Road Traffic Act 1930, s. 12.
63 See e.g. Dyson, M.N., “Challenging the Orthodoxy of Crime's Precedence over Tort: Suspending a Tort Claim Where a Crime May Exist” in Pitel, S.G.A., Neyers, J.W. and Chamberlain, E. (eds.), Challenging Orthodoxy in Tort Law (Oxford 2013), esp. pp. 125–26Google Scholar.
64 Smith v Linskills [1996] 1 W.L.R. 763 (CA), 773.
65 Hunter [1982] A.C. 529, 536; see also 542.
66 Amin v Director General of the Security Service (MI5) [2013] EWHC 1579 (QB).
67 Ibid., at para. [72]; see also paras. [69]–[70].
68 Masterfully dealt with in Smith [1996] 1 W.L.R. 763 (CA).
69 Hunter [1982] A.C. 529, 541. Cf. Hamilton v Al-Fayed [1999] 1 W.L.R. 1569, 1581–82, per Lord Woolf M.R.
70 Walpole [1994] QB 106, 118, per Ralph Gibson L.J.
71 “Mutuality of Collateral Estoppel: Limits of the Bernard Doctrine” (1957) 9 Stan.L.Rev. 281, 315, cited by Watson, G.D., in “Issue Estoppel, Abuse of Process and Prospective Litigation: The Death of Mutuality” in Scott, I.R. (ed.), International Perspectives on Civil Justice (London 1990)Google Scholar, 188, fn. 32.
72 See e.g. Lord Gardiner L.C. in the debates leading to the Civil Evidence Act 1968: HL Deb. vol. 288 col. 1347 (8 February 1968). In the context of civil claims by complainants following an acquittal at a criminal trial, different evidence may well be admitted, in addition to the different standard of proof. Criminal judges have, and regularly exercise, extensive discretionary powers to exclude otherwise admissible evidence (under e.g. the Police and Criminal Evidence Act 1984 and CJA 2003). Although there is now a general judicial power to exclude otherwise admissible evidence in civil proceedings (under C.P.R. 32.1), in practice it is rarely exercised.
73 LRC Fifteenth Report, paras. [26]–[33].
74 See e.g. Lord Diplock in Hunter [1982] A.C. 529, 542–43; and Raja v Van Hoogstraten [2005] EWHC 2890 (Ch), at [43]–[46], per Lightman J.
75 Walpole [1994] Q.B. 106, 117.
76 See Dyson, “The Timing”, pp. 99–103.
77 Ashton v Turner [1981] QB 137.
78 See now Gray [2009] UKHL 33; [2009] 1 A.C. 1339, at [93], per Lord Brown, at [29]–[55], per Lord Hoffmann and at [75]–[87], per Lord Rodger, esp. at [82]; and Dyson, M.N. (ed.), Unravelling Tort and Crime (Cambridge 2014)CrossRefGoogle Scholar, esp. chs. 7, 8, 11.
79 See Ashley v Chief Constable of Sussex Police (Sherwood Intervening) [2008] UKHL 25; [2008] 1 A.C. 962.
80 Ibid., at p. 965; see also p. 966. For the rejection of these arguments, see paras. [64]–[66], per Lord Rodger, and cf. paras. [77]–[83].
81 On the untidiness of this arrangement and its history, see J.A. Jolowicz, “Abuse of the Process of the Court: Handle with Care” (1990) 43 C.L.P. 77. For the more recent development of these types of powers, see I.R. Scott, “Inherent Jurisdiction to Prevent Initiation of Civil Proceedings” (1999) 18 C.J.Q. 197; and J. Sorabji, “Protection from Litigants who Abuse Court Process” (2005) 24 C.J.Q. 31, discussing (at p. 31) the growth of collateral attacks on e.g. the judge and counsel, though focusing on civil claims.
82 Reichel (1889) 14 App.Cas. 665, with only a terse few lines from the House of Lords; and the barely more detailed Stephenson v Garnett [1898] 1 Q.B. 677. Both concerned civil actions repeating factual allegations defeated in earlier civil actions.
83 In fact, Jolowicz argues that only the inherent jurisdiction, not the rule-based one, could be used where the action is unobjectionable on its face: “Abuse”, pp. 82–89 and fn. 29.
84 Of course, as it turned out in that case, the various courts could not have been more wrong: see note 8 above.
85 Hunter [1982] A.C. 529, 536.
86 Somasunaram v M. Julius Melchoir & Co. [1988] 1 W.L.R. 1394, esp. 1042–43.
87 Jolowicz, “Lest Decisions Conflict”, p. 198.
88 The Secretary of State for Trade and Industry v Bairstow [2004] Ch. 1, esp. at [38].
89 See R.F. Roxburgh, on the background “Rondel v. Worsley: The Historical Background” (1968) 84 L.Q.R. 178; and on the case itself “Rondel v. Worsley: Immunity of the Bar” (1968) 84 L.Q.R. 513, esp. 518–27. See also, on the ethical discussion generated, D.L. Carey Miller, “The Advocate's Duty to Justice: Where Does It Belong?” (1981) 97 L.Q.R. 127.
90 See Rondel v Worsley [1966] 2 W.L.R. 300 (QBD.); [1967] 1 Q.B. 443 (CA) and [1969] 1 A.C. 191 (HL). Lord Salmon's throwaway remark that the learned judge at first instance in Rondel could have dismissed it as an abuse of process (Saif Ali v Sydney Mitchell & Co. [1980] A.C. 198, 228, apparently picking up the argument of counsel for the appellants, 201) appears to be ahistorical, but might suggest what he thought commonly happened on the ground.
91 See e.g. Arthur J.S. Hall [2002] 1 A.C. 615, at [29]–[30] of the CA report.
92 [1980] A.C. 198, 223.
93 Ibid., at para. [16] of the CA report.
94 Ibid., at p. 680. See also pp. 684–85, per Lord Browne-Wilkinson, and pp. 699–705, per Lord Hoffmann. Cf. pp. 722–24, per Lord Hope, and pp. 742–43, per Lord Hobhouse.
95 Ibid., at p. 705.
96 Stupple v Royal Insurance Co. Ltd. [1971] 1 Q.B. 50, 72–74. Buckley L.J. took a different view, at 75 et seq. Lord Denning's view has been preferred by Malek, H.M. (ed.) in Phipson on Evidence, 17th ed. (London 2009)Google Scholar, paras. 43–88; by Moore-Bick J. in Phoenix Marine Inc. v China Ocean Shipping Co. [1999] 1 Lloyd's Rep. 682, at [143]; and by Spencer J. in CXX [2012] EWHC 1535 (QB), at [39].
97 For examples of a robust judicial approach being taken, see Brinks [1995] 1 W.L.R. 1478; and Smith [1996] 1 W.L.R. 763 (CA).
98 Hunter [1982] A.C. 529, 544.
99 Ibid.
100 Brinks [1995] 1 W.L.R. 1478.
101 Ibid., at p. 1482.
102 See also pp. 1483, 1484.
103 Ibid., at p. 1482.
104 McCauley [1999] 1 W.L.R. 1977, 1983–84; correctly distinguishing the dictum of Sir Thomas Bingham M.R. in Smith [1996] 1 W.L.R. 763 (CA), 771, which applied the Hunter test for fresh evidence in that case.
105 J v Oyston [1999] 1 W.L.R. 694.
106 Ibid., at p. 700, citing a dictum of Woolf L.J. (as he then was) in Nawrot v Chief Constable of Hampshire [1992], The Independent, 7 January.
107 Ibid., at pp. 698–99.
108 C.P.R. 24.2. See further at text to notes 146–152 below.
109 Save only the point made in the text to note 111 below.
110 A factor described as “important” by Spencer J. in CXX [2012] EWHC 1535 (QB), at [27].
111 Which was given a few months before the Court's power to award summary judgment of its own motion was introduced with the new Civil Procedure Rules in April 1999 (C.P.R. 3.3 and 3APD.1.2).
112 CXX [2012] EWHC 1535 (QB), at [34], per Spencer J.
113 On the facts, this would have been to “vex the claimant and put her through the mill again” (see para. [35]). At the time, he was seeking to impugn his convictions by a different and permissible method, namely an application to the Criminal Cases Review Commission (see ibid., at paras. [4], [29]).
114 See ibid., at paras. [35], [60], [62]–[65]. No abuse argument based on manifest unfairness or public disrepute appears to have been advanced by the claimant.
115 Ibid., at paras. [43]–[44].
116 Three Rivers D.C. v Bank of England (No. 3) [2001] UKHL 16; [2003] 2 A.C. 1, at [158].
117 See paras. [40]–[58].
118 Drawing on the concurring judgment of Potter L.J. in McCauley [1999] 1 W.L.R. 1977 (CA), 1983–85.
119 Hunter [1982] A.C. 529, 536, 539, 541.
120 Ibid., at pp. 537, 541, 545 (applying a dictum of Earl Cairns L.C. in Phosphate Sewage Co. Ltd. v Molleson (1879) 4 App. Cas. 801, 814).
121 For which, see note 120 above and the text thereto.
122 CXX [2012] EWHC 1535 (QB), esp. at [40]–[58]. Abu-Saleh, text to notes 100–103 above, is another such case, provided one ignores those passages in the judgment where Jacob J. suggests that the proposed defences in question amounted to abuses of the court's process.
123 McCauley [1999] 1 W.L.R. 1977, esp. 1983, per Sir Patrick Russell.
124 Walpole [1994] QB 106 (CA), at 115–116, per Ralph Gibson L.J. For an example where the convicted party was the defendant, see CXX [2012] EWHC 1535 (QB), esp. text to notes 112–118 above.
125 See notes 12 and 119 above and the text thereto. See also G.D. Watson, “Issue Estoppel”, p. 192: “the party seeking to relitigate has an ‘ulterior motive’ in the sense that it is not his or her genuine purpose to obtain the relief sought in the second action, but some collateral purpose.”
126 Aliter a purpose “otherwise than [that] for which the [proceedings] are designed”. Crawford Adjusters [2013] UKPC 17; [2014] A.C. 366, at [56], [62]–[63], per Lord Wilson S.C.J., citing Grainger v Hill (1838) 132 E.R. 769.
127 Ibid., paras. [64]–[65].
128 See notes 12 and 119 above.
129 Walpole [1994] QB 106, 120; see also 116. The latter two points appear to be drawn from the first paragraph of Lord Diplock's speech in Hunter (at p. 536).
130 Smith [1996] 1 W.L.R. 763, 770–71.
131 Ibid., at p. 771.
132 Both by the judge below and the Court of Appeal itself: ibid., at p. 772.
133 Now, but not in 1996, available to defendants as well as claimants under C.P.R. 24.3(2).
134 To prove which, the claimant would have to satisfy the court, on the balance of probabilities, that he would, if properly defended, have been acquitted.
135 See Arthur J.S. Hall [2002] 1 A.C. 615, 705, per Lord Hoffmann.
136 Brinks [1995] 1 W.L.R. 1478, 1482.
137 No other improper motive having been suggested.
138 Amin [2013] EWHC 1579 (QB), at [43].
139 Ibid., at paras. [65]–[70]. See also notes 66–67 above and the text thereto.
140 Which was contended for (see ibid., at para. [43], final sentence), and would hardly have been unreasonable on the facts (see inter alia notes 66–67 above and the text thereto).
141 As to which see note 111 above.
142 See Amin [2013] EWHC 1579 (QB), at [19]–[26], [36], [60].
143 See text to notes 125–128 above; see also note 5 above and the text thereto.
144 See Ashmore [1990] 2 Q.B. 338 (CA), 352; see also note 5 above.
145 See text to notes 57–60 above.
146 Text to note 112 above.
147 See note 120 above.
148 McCauley [1999] 1 W.L.R. 1977, 1983–84.
149 Smith [1996] 1 W.L.R. 763, 771.
150 See text to notes 101–102 above.
151 C.P.R. 24.2.
152 See Hunter [1982] A.C. 529, 544, per Lord Diplock.
153 O'Reilly v Mackman [1983] 2 A.C. 237.
154 C. Emery, “Collateral Attack: Attacking Ultra Vires Action Indirectly in Courts and Tribunals” (1993) 56 M.L.R. 643.
155 Lord Diplock did not refer to Hunter, but Lord Denning M.R., in the Court of Appeal, had referred to Hunter at p. 254, as had Ackner L.J. at pp. 260–61, and counsel for the appellants at p. 268.
156 O'Reilly [1983] 2 A.C. 237, 272, 285. See also Roy v Kensington and Chelsea and Westminster Family Practitioner Committee [1992] 1 A.C. 624.
157 O'Reilly [1983] 2 A.C. 237, 285.
158 A position that was criticised at the time: See e.g. C.F. Forsyth, “Beyond O'Reilly v. Mackman: The Foundations and Nature of Procedural Exclusivity” [1985] C.L.J. 415, esp. 422: “novel and cavalier use of abuse of process.” See now D. Feldman, “Error of Law and the Effects of Flawed Administrative Decisions and Rules” [2014] C.L.J. 275 for a view on whether all flawed administrative decisions are void.
159 Boddington v British Transport Police [1999] 2 A.C. 143. Boddington built on earlier movements away from a strict collateral attack position, e.g. Chief Adjudication Officer v Foster [1993] A.C. 754, 766–67, citing particularly the efficiency benefits.
160 See e.g. Boddington [1999] 2 A.C. 143, 160–62, per Lord Irvine L.C.; D.P.P. v T. [2006] EWHC 728 (Admin); [2007] 1 W.L.R. 209. The difference in title is not consistent across the cases, but may be suggestive of an attitudinal shift.
161 In addition, claims may now proceed in a civil court where they respect public-law safeguards like time limits: Clark v University of Lincolnshire and Humberside [2000] 1 W.L.R. 1988, at [16]–[18], [30]–[39].
162 C.P.R. 54(20) and Practice Direction 54A, at para. 14.2.
163 See e.g. Wandsworth LBC v Winder (No 1) [1985] A.C. 461, 509–10.
164 Most likely a defendant, being forced into relitigating by having been served with proceedings.