The potential for estoppel to arise based on the conduct of a party in litigation is well established in the law of England and Wales. The courts acknowledge that a party cannot change its position adopted in previous proceedings and then expect the court not to hold that party to its previous conduct.
In Zavarco plc v Nasir, the £36million question was: does the doctrine of merger apply to a declaratory judgment?
The Court of Appeal’s clear and unequivocal answer (merger “has no application at all to declarations”) would suggest that this was a simple point, however the experienced judges who grappled with the question in the lower courts reached contrasting conclusions. It remains to be seen whether the appellant will pursue the point to the Supreme Court in the hope of a different answer.
This judgment relates to three discrete applications in ten test cases out of 134 or more cases initiated through Edwards and others v Slater & Gordon UK Ltd; namely the claimants’ application for disclosure and the defendant’s application for security for costs against a non-party, Clear Legal.
The claimants were former clients of the defendant and represented by Clear Legal.
All these cases concern invoices, which had been paid by way of deduction from damages so if successful, the claimant would be entitled to a refund of monies from the defendant.
