Consolidation of Proceedings in UK Law

However that may be, it is not immediately obvious to me that it would be unjust for Vertex to be confined to such remedy in damages as is determined to be the extent of the bargain which it struck. That was an extraordinary case on the facts where the contractor, Mowlem, sought indefinitely to delay completion of the high profile Millennium Bath Spa project, a project which was intended and expected to confer significant benefits upon the local economy.

In fulfilling this personal fiduciary responsibility, a director is entitled to rely upon the judgment, information and advice of a fellow director whose integrity skill and competence he has no reason to suspect: see Dovey v Cory [1901] AC 477 at 486, 492. He may legitimately defer to those views where he is persuaded that his fellow directors' views are advanced in what they perceive to be the best interests of the company, even if he is not himself persuaded.

It enables, and in appropriate cases requires, him to vary them and so create new rights, obligations and liabilities in the parties. This is not a power which is normally possessed by any court and again it has a strong element of personal judgment by an individual nominated in accordance with the agreement of the parties.

That restatement of principle recognises that the doctrine is a flexible one which is not dependent upon identity of parties or issues and in an appropriate case is equally applicable whether the previous proceedings were criminal or civil. Accordingly, I reject any suggestion by Mr de la Mare QC that Hunter-type abuse cannot arise where the earlier proceedings were civil and there is no identity or privity between the parties.

In our view, the correct way to put the matter is to say that the DJ who has to decide whether there is a case to answer for the purposes of section 84(1) must determine whether, on one possible view of the facts, he is satisfied that there is evidence upon which the requested person could be convicted at a summary trial of an information against him, upon the basis of the notional English charges.

There are three further points which encourage me to accept Servier's proposal at this stage. First, as Ms Manley emphasised more than once in her written evidence, Servier is not saying that its disclosure should necessarily be confined to the documents on the Commission's file, but only that in the interests of proportionality this exercise should be undertaken first.

That question must – as is common ground—be judged objectively, that is to say by looking at what was done and said by and as between the parties in order to determine whether it amounts to service. Whether service has been effected cannot depend upon the views, possibly idiosyncratic or even bizarre, of individual litigants or their advisors.