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The Undertaking in Damages—Substantive and Procedural Dimensions
Published online by Cambridge University Press: 16 January 2009
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It is well established that a party seeking an interlocutory or a Mareva injunction is required to give a cross-undertaking in damages as a condition of being granted the order sought. Equally settled is the principle that the undertaking in damages may be invoked in two situations. First, when the injunction is discharged before trial on the ground that it should never have been granted and, secondly, if at the end of the trial the party enjoined obtains a favourable judgment vindicating his claims in the action. Yet the principles governing a decision whether to enforce the undertaking are inadequately articulated. Two reasons have combined to contribute to this state of affairs: the fact that the award of damages is considered to be discretionary and the small number of instances in which the courts have been asked topronounce on the subject. However, the great rise in applications for interlocutory relief, whether by way of interim or Mareva injunctions or Anton Piller orders, has commensurably increased the importance of this subject. A number of recent decisions stand witness to this tendency and underscore the need for a thorough treatment of the topic.
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1 There may be other occasions when an undertaking may be required, but here we are concerned mainly with the interlocutory and Mareva injunctions and Anton Piller orders.
2 The number of reported cases is even smaller.
3 Novello v. James (1854) 5 De G.M. & G. 876; Chappell v. Davidson (1856) 8 De G.M. & G. 1; Wakefieldv. Duke of Buccleugh (1865) 11 Jur. N.S. 523; Graham v. Campbell (1878) 7 Ch.D. 490; Newcomen v. Coulson (1878) 7 Ch.D. 764. Cf. Attorney-General v. Albany Hotel Co. [1896] 2 Ch. 696. For the development of American law see: Dobbs, D.B., “Should Security be Required as a Pre-condition to Provisional Injunctive Relief?” (1974) 52Google Scholar North Carolina L.Rev. 1091, 1151; Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828.
4 Fletcher Sutcliffe Wild Lid. v. Burch [1982] F.S.R. 64. However, a plaintiff will normally be taken to have provided an undertaking even if he omitted to give one: Spanish General Agency Corp.v. Spanish Corp. (1890) 63 L.T. 161; Colledge v. Crossley, The Times, 18 March 1975. The position is similar in America: W.R. Grace & Co. v. Local Union 795 461 U.S. 757, 770 N. 14 (1983).
5 Attorney-General v. Albany Hotel Co. [1896] 2 Ch. 696. See also note 3 above and Smith v. Day (1882) 21 Ch.D. 421; Re Hailstone, Hopkinson v. Carter (1910) 102 L.T. 877.
6 [1993] 1 W.L.R. 1545.
7 Id. at 1554–1555.
8 Id., at 1550–1551.
9 Norwesl Hoist Civil Engineering Ltd. v. Polysius, The Independent, 13 July 1987, Lexis Transcript.
10 Day, Smith v. (1882) 21 Ch.D. 421,423,424–425. This view has found an echo in the USA: United Motor Services v. Tropic-Aire 57 F.2d 479 (1932).Google Scholar
11 Metzger, and Friedlander, , “The Preliminary Injunction: Injury Without Remedy?” (1974) 29 The Business Lawyer 913; Spry, Equitable Remedies (4th ed., 1990), p. 643.Google Scholar
12 In Smith v. Day Cotton L.J. disagreed with Jessel M.R. and Brett L.J. expressed no view.
13 Blake, Griffith v. (1884) 27 Ch.D. 474. See also Ushers Brewery Ltd. v. P.S. King & Co. (Finance) Ltd. [1972] Ch. 148;Google ScholarHoffmann-La Roche & Co. AG v. Secretary of State for Trade and Industry [1975] A.C. 295.Google Scholar
14 (1877) 7 Ch.D. 490, 494. See also Newby v. Harrison (1861) 3 De G.F. & J. 287.Google Scholar
15 See Zuckerman, , “Dispensation with Undertaking in Damages—An Elementary Injustice” (1993) 12 C.J.Q. 268;Google ScholarZuckerman, , “Interlocutory Injunctions in Quest of Procedural Fairness” (1993) 56 M.L.R. 325.Google Scholar
16 Kirklees Borough Council v. Wickes Building Supplies Ltd [1991] 3 W.L.R. 985,Google Scholar 994 (although the Court of Appeal decision was reversed on appeal, as we shall see later, this view was not disputed). See also Hoffmann-La Roche &Co. AG v. Secretary of State for Trade and Industry [1975] A.C. 295Google Scholar, Crossley, Colledge v., The Times, 18 03 1975. The position is different in family litigation; see Practice Note [1974] 1 W.L.R. 576.Google Scholar
17 Vapormatic Co. Ltd v. Sparex Ltd [1976] 1 W.L.R. 939.Google ScholarCf. Brigid Foley v. Elliot [1982] R.P.C. 433.
18 Practice Direction, Family Division [1974] 1 W.L.R. 576.
19 Graham v. Campbell (1877) 7 Ch.D. 490.
20 Columbia Pictures Inc. v. Robinson [1987] Ch. 38.
21 See for instance Cheltenham and Gloucester Building Society v. Ricketts [1993] 1 W.L.R. 1545 and text pertaining to note 6 above.Google Scholar
22 See text pertaining to note 14 above. See also Blake, Griffith v. (1884) 27 Ch.D. 474, 476, 477; Re Hailstone: Hopkinson v. Carter (1910) 102 L.T. 877, 879.Google Scholar
23 American Cyanamidv. Ethicon [1975] A.C. 396.Google Scholar
24 Commodity Ocean Transport v. Basford [1987] 2 Lloyd's Rep. 197;Google Scholar undertaking voluntarily given.
25 Even if the court were to have an unfettered discretion to dispense with the undertaking altogether, it could not exercise a similarly unlimited discretion in the enforcement of the undertaking once it allowed the expectation to be formed. See Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828.
26 Spry, , Equitable Remedies (4th ed., 1990), p. 641.Google Scholar
27 [1917] 1 KB. 370.
28 (1877) 2 App. Cas. 439.
29 Coulson, Newcomen v. (1878) 7 Ch.D. 764; Ex pane Hall Wood (1883) 23 Ch.D. 644;Google Scholar Barclays' Bank v. Rosenberg (1985) 135 N.L.J. 633.
30 If, for example, the defendant is restrained from working for employer A, he may not be able to recover his lost wages with A, if he could have secured comparable employment with B.
31 Re Hailstone; Hopkinson v. Carter (1910) 102 L.T. 877.Google Scholar
32 See note 74 below.
33 Hoffmann-La Roche & Co. AG v. Secretary of State for Trade and Industry [1975] A.C. 295.Google Scholar
34 (1882) 21 Ch.D. 421,428.
35 See also Hunt v. Hunt (1884) 54 L.J. Ch. 289; Mansell v. British Linen Co. Bank [1892] 3 Ch. 159;Google ScholarSchlesinger v. Bedford (1893) 9 T.L.R. 370;Google ScholarRe Arbitration Between Pemberton and Cooper (1912) 107 L.T. 716;Google ScholarBullen, Douglas v. (1913) D.L.R. 652; Newman Bros Ltd v. Allum, SOS Motors Ltd (no. 2) [1935] N.Z.L.R. Supp. 17;Google ScholarAir Express Ltd v. Ansett Transport Industries etc. (1981) 146 C.L.R. 249.Google Scholar
36 Victorian Onion and Potato Grower's Association v. Finnigan [1992] V.L.R. 814,Google Scholar 822. Cf. Air Express note 35 above; at 266; Spry, Equitable Remedies (4th ed., 1990), p. 644.Google Scholar
37 Note 35 above.
38 The distinction drawn by the Australian court between harm arising from the injunction and harm arising from the litigation itself raises difficult questions about the adequacy of interlocutory injuctions as a tool for distributing the risks of harm to entitlements pending litigation. These questions, which are beyond the scope of the present paper, are discussed elsewhere. See Zuckerman, , “Timely Judgments and Correct Judgments—An Alternative to the Interlocutory Injunction Process” (1994) 14 O.J.L.S. 353.Google Scholar
39 Financieria Avenida v. Shiblaq, The Times, 14 January 1991, Lexis Transcript.
40 Rule 65 (c) of the Federal Rules of Civil Procedure provides that no interim injunction “shall issue except upon the giving of security by the applicant, in such sum as the court deems proper, for the payment of such costs and damages as may be incurred or suffered by any p a r ty who is found to have been wrongfully enjoined or restrained”. Upon the defendant receiving judgment he may proceed summarily against the plaintiff and his surety for damages without having to take independent action. See: Dobbs, D.B., “Should Security by Required as a Pre-condition to Provisional Injunctive Relief?” (1974) 52 North Carolina L.Rev. 1091,Google Scholar1151; Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828; Metzger and Friedlander, , “The Preliminary Injunction: Injury Without Remedy?” (1974) 29 The Business Lawyer 913.Google Scholar
41 There seems to be a view that an equitable power exists to award damages in the absence of a bond: Public Service Comm'n v. Brashear Freight Lines 312 U.S. 621, 629 (1941);Google ScholarDornan v. Sheet Metal Workers' Int'I Ass'n 810 F. Supp. 856, 858–860 (E.D. Mich. 1992).
42 Re DPR Futures Ltd. [1989] B.C.L.C. 634, 640.
43 See below text pertaining to note 99.
44 [1989] B.C.L.C. 634.
45 Id., at 640.
46 A plaintiff applying for an interlocutory injunction must make a full and frank disclosure of all material facts: Kensington, R.v.Income Tax Commissioners, ex p. Princess Edmond de Polignac [1917] 1 K.B. 486;Google ScholarNikpour, Bank Mellat v. [1985] F.S.R. 87; Lloyd's Bowmaker Ltd v. Britannia Arrow [1988] 1 W.L.R. 1337;Google ScholarBrink's Mat Ltd v. Elcombe [1988] 1 W.L.R. 1350; Behbehani v. Salem [1989] 1 W.L.R. 723; Lock Internationalp.l.c. v. Beswick [1989] 1 W.L.R. 1268.
47 (1882) 21 Ch.D. 421, 425. See Ross v. Buxton [1888] W.N. 55. In Swedac Ltd. v. Magnet & Southerns p.l.c. [1989] F.S.R. 243 an inquiry into damages was ordered following a discharge for non-disclosure.
48 Ushers Brewery Ltd v. King & Co. (Finance) Ltd [1972] Ch. 148; and see text pertaining to note 88 below.
49 Eastglen International Corp. v. Monpare SA (1986) 137 N.L.J. 56, quoted in Lloyds Bowmaker Ltd. v. Britannia Arrow [1988] 3 All E.R. 178,Google Scholar 183; [1988] 1 W.L.R. 1337, 1343. See also cases cited in note 46 above and The Andria renamed Vasso [1984] Q.B. 477; AH & Fahd Shobokshi Group v. Moneium [1989] 1 W.L.R. 710.
50 R. v. Kensington Income Tax Comrs. ex p. Princess Edmond de Polinac [1917] 1 K..B. 486Google Scholar; The Andria renamed Vasso [1984] Q.B. 477; Bank Mellat v. Nikpour [1985] F.S.R. 87; and cases cited in note 49 above.
51 Lloyds Bowmaker Ltd v. Britannia Arrow [1988] 1 W.L.R. 1337. It was held in Brink's Mat Ltd v. Elcombe [1988] 1 W.L.R. 1350, 1356 that the “duty of disclosure … applies not only to material facts known to the applicant but also to any additional facts which he would have known if he had made inquiries”. Cf. Behbehani v. Salem [1989] 1 W.L.R. 723, 727–729.
32 Where the ex parte remedy is not discretionary but may be obtained as of right, the duty of disclosure does not obtain: The Varna [1993] 2 Lloyd's Rep. 253. The information withheld in such cases would simply make no difference and may be considered immaterial. See Dockray, M.S., “Disclosure and Arrest of Ships” (1994) 110 L.Q.R. 382.Google Scholar
53 Cf. Aptedv. Apted [/9iO] P. 246, 262–263.
54 Roy v. Prior [1971] A.C. 470; the case was concerned with the procurement of an arrest, but there is no reason why an action for abuse of process should not similarly lie in respect of procuring an ex parte injunction; cf. Melia v. Neate (1863) 3 F. & F. 757.
55 Grainger v. Hill (1838) 4 Bing. N.C. 212; Speed Seal Products Ltd. v. Paddington [1985] 1 W.L.R. 1327. Cf. Digital Equipment Corp v. Darkcrest [1984] Ch. 512; Metall und Rohstoff AG v. Donaldson Lufkin & Jenrette Inc. [1990] 1 Q.B. 391. In the USA an action may lie for abuse of process in obtaining a temporary injunction but it requires proof of malice and lack of probable cause. Monolith Portland Midwest Co. v. Reconstruction Fin. Corp. 128 F. Supp. 824 (1955); Metzger and Friedlander, note 40 above.
56 Bir v. Sharna, the Times, 7 December 1988.
57 Costs on an indemnity basis were awarded where a Mareva injunction was obtained on the basis of fabricated evidence even though it had not yet been established that the plaintiff had been involved in the falsification; Birv. Sharna, The Times, 7 December 1988.
58 See for example: The Andria renamed Vasso [!984] Q.B. 477; Eastglen International Corp. v. Monpare SA (1986) 137 N.L.J. 56; Lock International p.l.c. v. Beswick [1989] 1 W.L.R. 1268; Bank Mellat v. Nikpour [1985] F.S.R. 87. See also cases cited in note 46 above.
59 Dormèuil Freres SA v. Nicotian International (Textiles) Ltd. [1988] 1 W.L.R. 1362, 1368–1371; Brink's Mat Ltd. v. Elcombe [1988] 1 W.L.R. 1350; Behbehani v. Salem [1989] 1 W.L.R. 723; Lagenes Ltd v. Its At (UK) Ltd. [1991] F.S.R. 492; National Bank of Sharjah v. Dellborg, The Times. 24 December 1992.
60 P.A. McGrath has drawn my attention to this point. See discussion pertaining to note 63 below.
61 Amanuel v. Alexander Shipping Co. [1986] Q.B. 464, 470; Columbia Picture Industries v. Robinson [1987] Ch. 38, 75.
62 Cf. Bank Mellat v. Nikpour [1985] F.S.R. 87; Lagenes Ltd. v. It's At [1991] F.S.R. 492; and cases cited in note 49 above.
63 Leubsdorf, J., “Remedies for Uncertainty” (1981) 61 Boston U.L. Rev. 132,Google Scholar argues for decoupling compensation from the harm to the individual and relating it to the protection of the process. American law does not, however, consistently support the view that a bond may be enforced in respect of procedural infringements: Dobbs, D.B., “Should Security be Required as a Pre condition to Provisional Injunctive Relief?” (1974) 52 North Carolina L. Rev. 1091, 1151; Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828.Google Scholar
64 In Smith v. Day (1882) 21 Ch.D. 421, 428, Brett L.J. said: “If the injunction had been obtained fraudulently or maliciously, the Court … would act by analogy to the rule in the case of fraudulent or malicious breach of contract, and not confine itself to proximate damages, but give exemplary damages.” However, this was said in the context where the party restrained won on the merits, not where he failed.
65 Digital Corpn v. Darkcrest Ltd. [1984] Ch. 512, 516. Cf. Columbia Picture Industries v. Robinson, note 61 above. Aggravated damages are concerned with compensation over and above the normal measure, whereas exemplary damages are punitive in character; Rookes v. Barnard [1964] A.C. 1129. By analogy, the former would be more appropriate in this context since punishment can be meted out by committal for contempt. Cf. Barclays Bank v. Rosenberg (1985) 135 N.L.J. 633.
66 A.J. Bekhor & Co v. Bilton [1981] Q.B. 923; Iraqi Ministry of Defence v. Arcepey Shipping Co. SA [1981] Q.B. 65; Cretanor Maritime Co. Ltd. v. Irish Marine Management Ltd. [1978] 1 W.L.R. 966; Zuckerman, “Mareva Injunctions and Security for Judgment in a Framework oflnterlocutory Remedies” (1993) 109 L.Q.R. 432.
67 Barclays Bank v. Rosenberg (1985) 135 N.L.J. 633.
63 The Times, 14 January 1991, Lexis Transcript.
69 [1993] 1 W.L.R. 1545.
70 These are set out in the text pertaining to note 88 below.
71 [1993] 1 W.L.R. 1545, 1558.
72 For discussion see Zuckerman, , “Interlocutory Remedies in Quest of Procedural Fairness” (1993) 56 MLR. 325.Google Scholar
73 In Columbia Pictures Inc. v. Robinson [1987] Ch. 38, 85, Scott J. warned against judging with hindsight: “The evidence at the trial determines what order I should now make against Mr.Robinson but cannot, in my judgment, be relied on to justify ex post facto the making of the exparte order if, at the time the order was made, it ought not to have been made nor to excuse breaches of duty which attended upon the obtaining of the order.”
74 “In exercising this discretion”, Brett L.J said in Smith v. Day (1882) 21 Ch.D. 421,427–428, “the Court should act as nearly as may be on fixed rules, or by analogy to fixed rules.”
75 Barclays Bank v. Rosenberg (1985) 135 N.L.J. 633.
76 Anton Piller KG v. Manufacturing Processes Ltd. [1976] Ch. 55. Laddie, Dockray, “Piller Problems” (1990) 106 L.Q.R. 601.Google Scholar
77 Digital Equipment v. Darkcrest Ltd. [1984] Ch. 512.
78 See note 40 above.
79 See note 51 above.
80 Commenting on this aspect Scott, J. observed: “What is to be said of the Anton Piller procedure which, on a regular and institutionalised basis, is depriving citizens of their property and closing down their businesses by orders made ex parte, on applications of which they know nothing and at which they cannot be heard, by orders which they are forced, on pain of committal, to obey, even if wrongly made?” Columbia Picture Industries v. Robinson [1987] Ch. 38, 74.Google Scholar
81 Columbia Picture Industries v. Robinson [1987] Ch. 38; Universal Thermosensors Ltd. v. Hibben [1992] 1 W.L.R. 840.
82 Swedac Ltd. v. Magnet & Southerns p.l.c. [1989] 1 F.S.R. 243.
83 Columbia Picture Industries v. Robinson [1987] Ch. 38, 74.
84 Lock International p.l.c. v. Beswick [1989] 1 W.L.R. 1268.
85 Bel-Tyne Company Ltd. v. JSK, 24 March 1986, unreported; A-Z Couriers Ltd. v. Comspec Computer Software Ltd, 9 November 1988, unreported; Swedac Ltd. v. Magnet & Southerns p.l.c. [1989] I F.S.R. 243.
86 The intrusiveness of which received vivid description in Bhimji v. Chatwani [1991] 1 W.L.R. 989, 996–998.
87 [1993] 1 W.L.R. 1545, 1557–1558.
88 In view of adverse comments made on it in Norwest Hoist Civil Engineering Ltd. v. Polysius Ltd, 3 July 1987, unreported.
89 Or such other time as the court may order. The court may order that the matter would be dealt with either at some point before judgment or when it becomes clear that the case will not proceed to judgment.
90 An example is provided by an action alleging fraud where a Mareva injunction has been discharged.
91 This line is advanced in Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828.
92 Lloyds Bowmaker Ltd. v. Britannia Arrow [1988] 1 W.L.R. 1337, 1347. See also The Siskina [1979] A.C. 210. It is an abuse of process to fail to prosecute the action after obtaining a Mareva injunction: Town and County Building Society v. Daisystar Ltd., The Times, 16 October 1989. When an ex parte injunction is granted before the issue of the writ, it is normally made conditional on prompt service.
93 In the case of Mareva relief, which arises from a fear that the defendant would dispose of assets in order to evade judgment, the important aspect is that the plaintiff undertakes to prosecute his action to judgment rather than to obtain a favourable judgment, and the same goes for Anton Piller orders.
94 Ushers Brewery Ltd v. King & Co. (Finance) Ltd. [1972] Ch. 148; Lock International p.l.c. v. Beswick [19S9] 1 W.L.R. 1268.
95 Hoffman-La Roche & Co. AGv. Secretary of State for Trade and Industry [1975] A.C. 295; Kirklees Metropolitan Borough Council v. Wickes Building Supplies Ltd. [1993] A.C. 227. See Zuckerman, note 15 above.
96 [1980] 1 W.L.R. 1252.
97 Id., at 1257.
98 American Cyanamid v. Ethicon [1975] A.C. 386, 408; Brigid Foley v. Elliot [1982] R.P.C. 433.
99 Re DPR Futures [1989] B.C.L.C. 634, 640. In Allen v. Jambo Holdings Ltd. [1980] 1 W.L.R. 1251, 1257, Lord Denning M.R. referred to the plaintiff's impecuniosity and said: “As a matter of convenience, balancing one side against the other, it seems to me that an injunction should go to restrain the removal of this aircraft”. See also Swedac Ltd. v. Magnet & Southerns p.l.c. [1989] 1 F.S.R. 243. Where the court has not decided to make allowance for the plaintiff's impecuniosity because this fact was suppressed, albeit innocently, the undertaking may be visited on the plaintiff's solicitor; Schmitten v. Faulkes [1893] W.N. 64.
100 De Falco v. Crawley Borough Council [1980] Q.B. 460.
101 In the US impecuniosity is a reason for waiving the bond requirement, because the bond is underwritten by a third party and an indigent defendant is not able to purchase the bond; see Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828; Blood, “Injunction Bonds: Equal Protection for the Indigent” (1969) 11 S. Tex. L. J. 16. For the position in Canada see Macmillan Bloodel v. Mullin [1985] 3 W.W.R. 577; Hunt v. Halcon Log Services [1986] 34 D.L.R. (4th) 504 and cases mentioned therein. See also Sharpe, , Injunctions and Specific Performance (Toronto, 1992), ch. 2.Google Scholar
102 A similar result may be achieved by limiting the undertaking to an amount commensurate with the applicant's ability to pay; see text pertaining to note 44 above.
103 [1993] A.C. 227; for criticism see Zuckerman, “Dispensation etc.”, note 15 above. See also In Re Highfield Commodities Ltd. [1985] 1 W.L.R. 149; Director General of Fair Trading v. Tobyward Ltd. [1989] 1 W.L.R. 517; In re Agreement Between Members of the Institute of Independent Insurance Brokers [1991] I.C.R. 822; Securities and Investment Board v. Lloyd-Wright [1993] 4 All E.R. 210.
104 See also Attorney-General v. Wright [1988] 1 W.L.R. 164.
105 Interestingly, several of their Lordships in the Hoffman-La Roche case were of the view that had the defendant shown a strong prospect of succeeding on the merits, the undertaking might not have been dispensed with notwithstanding that the proceedings were brought in order to enforce the law [1975] A.C. 295, 342 per Lord Reid; 368 per Lord Diplock; 371 per Lord Cross. See also Secretary of State for Trade and Industry v. Hoffman-La Roche & Co. AG in the Court of Appeal [1973] 3 W.L.R. 805, 806 per Buckley L.J.; Director General of Fair Trading v. Tobyward Ltd. [1989] 1 W.L.R. 517.
106 See, however, Rosling v. Law Guarantee, etc., Co. (1903) 47 S.J. 255; cf. Re DPR Futures Ltd. [1989] B.C.L.C. 634, 639. In Canada there has been wider dispensation: Macmillan Bloodel v. Mullin (1985) 2 W.W.R. 577; Hunt v. Halcon Log Services (1986) 34 D.L.R. (4th) 504; Corp. of Delta v. Nationwide Auctions Inc. (1979) 100 D.L.R. (3D) 4 W.W.R. 49. In the United States the waiver has recently favoured individuals and civil rights organisations suing to protect a public interest. Note, “Recovery for Wrongful Interlocutory Injunctions under Rule 65(c)” (1986) Harv. L. Rev. 828.
107 Securities and Investment Board v. Lloyd-Wright [1993] 4 All E.R. 210; section 187(3) of the Financial Services Act 1986.
108 See Zuckerman, “Dispensation etc.”, note 15 above.
109 Whitworth v. Rhodes (1850) 20 L.J. Ch. J05; Jones v. Pacaya Rubber and Produce Co. Ltd. [1911] 1 K.B. 455.
110 East Moseley Local Board v. Lambeth Waterworks Co. [1892] 3 Ch. 289.
111 Id.
112 Harman Pictures NV v. Osborne [1967] 1 W.L.R. 723.
113 Macleod v. Jones (1883) 24 Ch.D. 289.
114 Newson v. Pender (1884) 27 Ch.D. 43, 63.
