A Litigator's Pocket Guide to Delightfully Random (But Useful) Civil Cases

In this article, I have selected 8 cases which all civil practitioners should be aware of, and break down their significance into bitesize chunks complete with analysis. Whilst making this list, I have opted to not select cases which are trite (although I do enjoy the likes of Donoghue v Stevenson [1932] AC 562, Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 and Associated Provincial Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, the latter of which you can read here). This is because, on my analysis, there was not much value in providing case law which most legal professionals are already well versed in. The eight cases which will be discussed are in no particular order and the usual disclaimers apply: this is for educational purposes only and legal advice should always be sought. For completeness, the judgments for each decision are hyperlinked within the case name.

Case 1: Henderson v Henderson (1843) 3 Hare 100; 67 ER 313

• Many practitioners will be aware of the term "Henderson abuse", which was generated by this case.

• The Court held that where a matter was to be decided by the courts, the parties to that litigation had to bring forward their whole case for determination. The Court held that unless there were special circumstances, the parties cannot return to advance new arguments, claims or defences which they could have put forward for decision on the first occasion, but they failed to raise. This appears to include omission due to negligence, inadvertence or accident.

• The importance of Henderson is clear: if a party is to bring a claim, it must bring the entirety of it in one go. There is a public interest in the finality of litigation. A failure to do so could be catastrophic and for practitioners, could lead to professional negligence claims.

• There have been further developments on this principle in subsequent cases, such as: Johnson v Gore Wood & Co [2003] EWCA Civ 1728; Aldi Stores Ltd v WSP Group Plc & Ors [2007] EWCA Civ 1260; and Orji & Anor v Nagra & Anor [2023] EWCA Civ 1289, all of which demonstrate the flexibility of the concept. Indeed, now the appropriate route for a Court to take is that of a broad merits-based assessment. This takes into account the public and private interests involved and all the facts of the case. This successive case law also helps answer the question of what to do when a party, who is involved in ongoing litigation, becomes aware that it may have related claims which are not currently pleaded. In those circumstances, the Aldi case and guidelines would apply: a party who wishes to reserve the right to bring further proceedings on closely related issues, must raise this with the Court as soon as practicable so that the Court can decide how it wishes to proceed.

Case 2: Jameel v Dow Jones & Co Inc [2005] EWCA Civ 75

• This case created what is known as the "Jameel principle".

• Jameel itself was a defamation case whereby the Court held that (it was permissible to strike out a claim on the basis of defamation as an abuse of process if it involved trivial harm such as very limited publication or minor reputational damage. The case also established that a claim must involve a "real and substantial tort".

• The reasoning for the decision is clear: it is a means of preventing disproportionate litigation. Interestingly, Jameel has since been cited to stand for the general principle that a claim which discloses no real and substantial tort is liable to be struck out for being an abuse of process of the Court. This has particularly gained traction in decisions relating to the unlawful disclosure of personal information where it has been held that the Jameel principle can apply to statutory torts (see: Stadler v Currys Group Ltd [2022] EWHC 160 (QB); Johnson v Eastlight Community Homes Ltd [2021] EWHC 3069 (QB))

Case 3: Henderson v Merrett Syndicates Ltd [1995] 2 AC 145

• This case gave rise to the possibility of concurrent contractual and tortious liability in the context of professional services. The case itself focused on the relationship between investors and underwriters. In Henderson v Merrett Syndicates, the Court held that where a person undertakes to perform professional services for another, if it were to be relied upon by the person on whose behalf these services are performed, it may be sufficient to give rise to a duty of care in tort. This is regardless of the contractual relationship between the parties. The Court did hold that this concurrent liability could, however, be precluded by a contractual agreement between the parties.

• Henderson v Merrett Syndicates was controversial: it was a significant departure from the previous regime whereby contract and tort could not be relied on simultaneously.

Case 4: Barton v Wright Hassall [2018] UKSC 12

• Barton was originally a professional negligence claim which ended up before the Supreme Court and provided the foundations for a significant judgment relating to civil procedure and litigants in person. The Claimant served a claim form on the Defendant by email, without first obtaining their confirmation that they were prepared to accept service by email. It is common ground that this was not good service. As a result, the claim form expired unserved on the following day. The question for the Supreme Court was whether, in such cases, the courts should exercise their powers and validate service retrospectively.

• The Supreme Court confirmed the previous decision that service of the claim form via email was not a permitted method of service in Barton. The factors a court should consider when deciding what constitutes good reason for validating non-compliant service of a claim form turn on the facts of the case but the Court would look at the reasonable steps by the Claimant to serve the claim form, whether the Defendant knew of the contents of the claim and what the prejudice would be to the Defendant.

• More importantly, however, the Supreme Court made it clear that it is reasonable to expect a litigant in person to familiarise themselves with the Civil Procedure Rules. The Court went further to find that the rules were sufficiently accessible and clear, not inaccessible and obscure.

• Barton outlines that the Civil Procedure Rules apply equally to both represented and unrepresented parties; a person representing themselves should not be allowed to disregard the Civil Procedure Rules. Indeed, there is no preferential treatment for unrepresented parties, however, there was still an expectation for legal practitioners to assist litigants in person to deal with cases ‘justly and at proportionate cost’.

• Barton does, however, seem to be at odds with other cases and cause a form of tension. For example, in Mervyn v BW Controls [2020] EWCA Civ 393 (which originated in the Employment Tribunal system) whereby the Court of Appeal indicates that if the Claimant at a case management hearing inadvertently drops a claim which is clearly within the terms of the Form ET1, the tribunal at the final hearing should consider it and amend the list of issues.

Case 5: Dammermann v Lanyon Bowdler LLP [2017] EWCA Civ 269

• Dammermann provided some guidance on the meaning of "unreasonableness" in relation to costs within the small claims regime. A large proportion of cases end up on this track. Usually, costs on the small claims regime are limited to fixed costs, as outlined in the Civil Procedure Rules, unless unreasonableness can be shown.

• The Court relied on the previous decision of Ridehalgh v Horsefield [1994] 3 WLR 462, which held that the term "unreasonable" included conduct which was vexatious or designed to harass the other side rather than advance the resolution of the case. The Court of Appeal did hold, however, that conduct cannot be described as unreasonable simply because it leads in the event to an unsuccessful result or because other more cautious legal representatives would have acted differently.

• The test which the Court arrived at was whether the conduct in question permits of a reasonable explanation. If the conduct does have a reasonable explanation to it, it is likely to be reasonable. Such matters are therefore to be taken on a case by case basis (as they are likely to be fact-sensitive), and the Court of Appeal declined to give further guidance owing to the myriad of circumstances that can arise before the Court.

• The bar for finding unreasonable conduct is a high one.

Case 6: Competition and Markets Authority v Flynn Pharma Ltd and Pfizer Inc [2022] UKSC 14

• This decision relates to public bodies and the costs position to be adopted by the Court should a public body lose in litigation. It is likely to have implications for public law disputes, regulatory disputes and possibly more routine matters before the County Court.

• The Supreme Court held that there is no generally applicable principle to provide that all public bodies should enjoy a protected costs position when they lose a case which they have brought or defended in the exercise of their public functions.

• When making such a decision on costs, one prominent factor that should be considered is the risk that there will be a "chilling effect" on the conduct of the public body, and its ability to act in the public interest, where awards of costs are routinely made against it. Crucially, however, the Supreme Court did explain that it is not necessary to consider the question of whether a chilling effect exists each and every time that it exercises its discretion.

Case 7: Bali v 1-2 Couriers Limited and Walsingham Motor Insurers Limited [2025] EWCA Civ 1413

• This is a case on procedural law. It is trite to outline the strict 4-month deadline for service of a claim form within the jurisdiction. A failure to comply with this will usually mean the claim is barred. The central question for the Court of Appeal in Bali was: what is the date on which the claim form is "issued" for the purposes of Rules 7.2 and 7.5 of the Civil Procedure Rules? The Court of Appeal also provided guidance on what action should be taken if a Claimant finds themselves in this position.

• The Court of Appeal held that the date of issue for the purposes of the Civil Procedure Rules, and the point at which the clock starts to tick, is the date when the Court seals the claim form, not when it posts it. Therefore, proceedings will often have started earlier than the sealed claim form being received by the Claimant.

• It could be argued that if the appeal had succeeded, and the date of posting was the correct date of issue, then it could give generate further complications. For example, there could be disputes as to when the claim form was sent out, and that in of itself could cause procedural uncertainty.

• Additionally, when asked for an extension of time for service, the Court of Appeal took the view that the Judge at first instance was able to take into consideration matters such as the efforts made by the solicitors to obtain the claim form once it had been filed.

• Bali demonstrates that it is good practice for solicitors to take an active approach and monitor the Court’s progression of cases, which may in turn require some chasing. A failure to do so leaves the Claimant at risk of falling foul of the service requirements; the rules around service are strictly enforced as can be seen in both Bali and Barton.

Case 8: Jaevee Homes Ltd v Fincham (t/a Fincham Demolition) [2025] EWHC 942

• This is a fairly recent decision from the High Court. It relates to building disputes but has wider implications for contract law more generally. A Part 8 claim was brought to ask the Court two questions. First, when had the parties entered into a contract? (and on what terms). Secondly, whether the invoices issued were valid applications for payment. The first question in this case is the subject of examination for this article.

• The High Court found that the use of emojis in WhatsApp messages can create formal contracts. It follows that where there is an offer, acceptance of that offer, and an intention to create legal relations, a contract will be formed. This is regardless of the means used.

• Interestingly, it demonstrates the Court's consideration of changing societal norms and methods of communication and how this can impact on the evolution of fundamental concepts of contract law. One of the key takeaways from this case seems to be that if there is a desire to discuss business on a more informal basis, the parties should make it clear that the discussion is ‘subject to contract’, and also agree that the terms will be finalised in a subsequent formal written contract.

Please note that our posts should not be intended to be legal advice and should not be construed as such; they are merely discussions and therefore readers are encouraged to seek professional legal advice for their own matters.