January 27, 2012

Commissioner of Police -v- Davis; PC 1994

(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This subsection related both to convictions on information and to summary convictions. The subsection was unconstitutional in its application to summary convictions but not in its application to convictions on information. In holding that section 22(8) was void only in so far as it related to summary convictions the Board applied the Hutchinson ‘substantial severability’ test. The section sought improperly to deprive defendants of their right to a jury trial.

Court: PC
Date: 01-Jan-1994
References: [1994] 1 AC 283, [1994] 4 All ER 476, [1994] CLY 496
Cases Cited:
  • Director of Public Prosecutions -v- Hutchinson; Director of Public Prosecutions -v- Smith, HL, Cited, ([1990] 2 AC 783, Times 13-Jul-90, Bailii, [1988] UKHL 11)

Cited By:
  • Pilar Aida Rojas -v- Brian Berllaque, PC, Cited, (PC, Bailii, [2003] UKHL 76, Times 13-Nov-03, [2003] UKPC 76, [2004] 1 WLR 201)

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January 27, 2012

Abbott -v- Minister for Lands; PC 1895

When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the community or any class of them into an accrued or vested right to which the presumption applies, the particular beneficiary of the right must have done something to avail himself of it before the law is changed. Since the purpose of legislation is to alter the existing legal situation, there is no presumption that it will not alter rights which individuals have, but have not exercised.

Court: PC
Date: 01-Jan-1895
Judges: Lord Herschell LC
References: [1895] AC 425,
Cited By:
  • Wilson and others -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2), HL, Cited, (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
  • Oxfordshire County Council -v- Oxford City Council and others, HL, Cited, (Bailii, [2006] UKHL 25, Times 31-May-06, Gazette 08-Jun-06, [2006] 2 WLR 1235, [2006] 2 AC 674, [2006] 22 EG 177, [2006] NPC 62, [2006] BLGR 713, [2006] 2 EGLR 95, [2006] 4 All ER 817)
  • Secretary of State for Energy and Climate Change -v- Friends of The Earth and Others, CA, Cited, (Bailii, [2012] EWCA Civ 28)

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January 27, 2012

Inland Revenue Commissioners -v- Scottish and Newcastle Breweries Ltd; HL 1982

Expenditure on refurbishment, decor and fittings in hotels was held to be plant though forming part of the setting of the hotels. The House considered the interpretation of undefined expressions in fiscal legislation, such as ‘trade’, ‘income’, ‘office’ and ‘plant’. Lord Wilberforce said: ‘It naturally happens that as case follows case, and one extension leads to another, the meaning of the word gradually diverges from its natural or dictionary meaning. This is certainly true of ‘plant.’ No ordinary man, literate or semi-literate, would think that a horse, a swimming pool, moveable partitions, or even a dry dock was plant-yet each of these has been held to be so: so why not such equally improbable items as murals, or tapestries, or chandeliers?’ and ‘There is no universal formula which can solve these puzzles. In the end each case must be resolved, in my opinion, by considering carefully the nature of the particular trade being carried on, and the relation of the expenditure to the promotion of the trade. I do not think that the court should shrink, as a backstop, from asking whether it can really be supposed that Parliament desired to encourage a particular expenditure out of, in effect, taxpayers’ money, and perhaps ultimately, in extreme cases, to say that this is too much to stomach.’

Court: HL
Date: 01-Jan-1982
Judges: Lord Wilberforce
References: [1982] 1 WLR 322, (1982) 55 TC 251
Cited By:
  • Shove (Inspector of Taxes) -v- Lingfield Park 1991 Ltd, ChD, Cited, (Times 11-Aug-03, Gazette 18-Sep-03)
  • Lingfield Park (1991) Limited -v- Shove, CA, Cited, (Bailii, [2004] EWCA Civ 391, Times 26-Apr-04)

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January 27, 2012

Secretary of State for Social Security -v- Tunnicliffe; CA 1991

Staughton LJ considered the interpretation of an Act of Parliament to give it reprospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner which is unfair to those concerned in them, unless a contrary intention appears. It is not simply a question of classifying an enactment as retrospective or not retrospective. Rather it may well be a matter of degree – the greater the unfairness, the more it is to be expected that Parliament will make it clear if that is intended.’

Court: CA
Date: 01-Jan-1991
Judges: Staughton LJ
References: [1991] 2 All ER 712,
Cited By:
  • Wilson and others -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2), HL, Cited, (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
  • Secretary of State for Energy and Climate Change -v- Friends of The Earth and Others, CA, Cited, (Bailii, [2012] EWCA Civ 28)

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January 27, 2012

Brooks -v- Director of Public Prosecutions and Another; PC 2-Mar-1994

(Jamaica) The DPP successfully applied for a voluntary bill after the resident magistrate had discharged the defendant on the ground that having heard the evidence, there was no case to answer. The challenge to the DPP’s decision to seek a voluntary bill was advanced not on the ground of double jeopardy, but rather of abuse of process.
Held: The DPP or the judge should treat the decision of the resident magistrate with the greatest respect and regard their jurisdiction as one to be exercised with great circumspection. There have to be exceptional circumstances to warrant prosecuting a defendant after it has been found in committal proceedings that there is no case to answer. Nevertheless, a judge has the power to issue a voluntary bill of indictment ex parte.

Court: PC
Date: 02-Mar-1994
Judges: Lord Woolf
Links: Gazette,
References: [1994] 1 AC 568,
Cited By:
  • Regina (on the Application of John William Redgrave) -v- The Commissioner of Police for the Metropolis, CA, Cited, (Bailii, [2003] EWCA Civ 4)

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January 27, 2012

Erhire -v- E O-I (by his next friend); CA 24-Mar-2011

The mother appealed against a sentence of eight months imprisonment imposed for contempt of court in having broken an order intended to protect the child against being removed to Nigeria with a view to forcing him into a marriage. On complaint of a breach, she had undertaken to write letters which would secure his return. She did so, but then wrote additionally with the effect of countermanding the letter. She then failed to comply after being given further opportunity to mend the breach.
Held: The appeal failed. The judge had properly considered the points now raised on appeal, and bearing in mind the maximum sentence, this was clearly within the paramaters of a sentence proper for such a breach.

Court: CA
Date: 24-Mar-2011
Judges: Lloyd, Wilson LJJ
Statutes: Forced Marriage (Civil Protection) Act 2007, Family Law Act 1996 63A
Links: Bailii,
References: [2011] EWCA Civ 555, [2011] Fam Law 794, [2011] 2 FLR 793
Cases Cited:
  • Hale -v- Tanner, CA, Cited, (Times 22-Aug-00, [2002] FLR 879, [2000] 1 WLR 2377)
  • CJ -v- Flintshire Borough Council, CA, Cited, (Bailii, [2010] EWCA Civ 393, [2010] 2 FLR 1224, [2010] CP Rep 36, [2010] 3 FCR 40, [2010] Fam Law 697)
  • Slade -v- Slade, CA, Cited, (Bailii, [2009] EWCA Civ 748, Times)

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January 27, 2012

L’Office Cherifien Des Phosphates and Another -v- Yamashita-Shinnihon Steamship Co Ltd; HL 19-Jan-1994

The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord Mustill said: ‘Precisely how the single question of fairness will be answered in respect of a particular statute will depend on the interaction of several factors, each of them capable of varying from case to case. Thus, the degree to which the statute has retrospective effect is not a constant. Nor is the value of the rights which the statute affects, or the extent to which that value is diminished or extinguished by the retrospective effect of the statute. Again, the unfairness of adversely affecting the rights, and hence the degree of unlikelihood that this is what Parliament intended, will vary from case to case. So also will the clarity of the language used by Parliament, and the light shed on it by consideration of the circumstances in which the legislation was enacted. All these factors must be weighed together to provide a direct answer to the question whether the consequences of reading the statute with the suggested degree of retrospectivity are so unfair that the words used by parliament cannot have been intended to mean what they might appear to say.’ and ‘My Lords, it would be impossible now to doubt that the Court is required to approach questions of statutory interpretation with a disposition, and in some cases a very strong disposition, to assume that a statute is not intended to have retrospective effect. Nor indeed would I wish to cast any doubt on the validity of this approach for it ensures that the Courts are constantly on the alert for the kind of unfairness which is found in, for example, the characterisation as criminal of past conduct which was lawful when it took place, or in alterations to the antecedent national, civil or familial status of individuals. Nevertheless, I must own up to reservations about the reliability of generalised presumptions and maxims when engaged in the task of finding out what Parliament intended by a particular form of words, for they too readily confine the Court to a perspective which treats all statutes, and all situations to which they apply, as if they were the same. This is misleading, for the basis of the rule is no more than simple fairness, which ought to be the basis of every legal rule.’

Court: HL
Date: 19-Jan-1994
Judges: Lord Mustill
Statutes: Arbitration Act 1950 13A
Links: Gazette, Independent, Times,
References: [1994] 1 AC 486, [1994] 1 All ER 20, [1994] 1 Lloyds Rep 251, [1994] 2 WLR 39
Cited By:
  • Wilson and others -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2), HL, Cited, (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
  • Odelola -v- Secretary of State for the Home Department, HL, Cited, (Bailii, [2009] UKHL 25, Times, [2009] 1 WLR 1230, [2009] 3 All ER 1061)

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January 26, 2012

Secretary of State for Energy and Climate Change -v- Friends of The Earth and Others; CA 25-Jan-2012

The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought iin in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against a finding that this was unlawful.
Held: Permission to appeal was granted, but the appeal failed. The effect of the proposed modifications were retrospective in effect, and could not be supported without an express statutory power.
Moses LJ said: ‘I should record that the proposed modifications remain proposals. There was an issue before Mitting J as to whether a proposal put out for consultation was a proper subject of judicial review at all, but in the event neither side has sought in this appeal to contend that the fact that the Secretary of State has not yet reached a decision, still less laid the modifications before Parliament, should inhibit or prevent this court from reaching a decision on the substantive issues. Both sides require an urgent decision as to the lawfulness of the proposals in relation to installations becoming eligible from 12 December 2011 to 1 April 2012.’ and
‘The question, I respectfully suggest, is not whether the proposed modification may have a significant adverse impact on those proposing to install small solar systems once the proposal was announced, but rather whether Parliament conferred a power to make a modification with such a retrospective effect. It did not.’

Court: CA
Date: 25-Jan-2012
Judges: Lloyd, Moses, Richards LJJ
Statutes: Energy Act 2008,
Links: Bailii,
References: [2012] EWCA Civ 28,
Cases Cited:
  • Abbott -v- Minister for Lands, PC, Cited, ([1895] AC 425)
  • Newcastle Breweries Ltd -v- The King, , Cited, ([1920] KB 854)
  • Wilson and others -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2), HL, Cited, (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
  • Secretary of State for Social Security -v- Tunnicliffe, CA, Cited, ([1991] 2 All ER 712)

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January 26, 2012

Cook -v- The Mortgage Business Plc; CA 24-Jan-2012

The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to possession has priority over, or is subject to, any entitlement of the vendor to continue in occupation where the right asserted by the vendor is prohibited by the mortgage.’
Held: The appeals were dismissed. It was not possible to distinguish the Cann case. As a matter of policy, it would not be appropriate to place on the respondent lenders the risk of carelessness or fraud in the carrying out of the promises or representations made to the appellant vendors because the lenders could have, and should have, made direct enquiries of the vendors.
Prior to the registration of the purchaser as the proprietor, the purchaser’s interest in the property can subsist only in equity. As a matter of basic land law, an equitable owner of land cannot grant a legal interest. A person cannot grant a greater interest than he or she possesses. No doubt, for good policy reasons, the legislature could provide in sufficiently clear and precise language for a different position. It had not done so.

Court: CA
Date: 24-Jan-2012
Judges: Lord Neuberger MR, Rix, Etherton LJJ
Statutes: Law of Property Act 1925 63, Land Registration Act 2002 29, Law of Property (Miscellaneous Provisions) Act 1989
Links: Bailii,
References: [2012] EWCA Civ 17,
Cases Cited:
  • Abbey National Building Society -v- Cann, HL, Cited, ([1990] 1 All ER 1085, [1991] 1 AC 56, Bailii, [1990] UKHL 3)
  • Shaw -v- Foster, HL, Cited, ((1872) LR 5 HL 321)
  • Coventry Permanent Economic Building Society -v- Jones, ChD, Cited, ([1951] 1 All ER 901)
  • Sargaison -v- Roberts, ChD, Cited, ([1969] 3 All ER 1072)
  • Williams & Glyn's Bank Ltd -v- Boland, HL, Cited, ([1981] AC 487, [1980] 2 All ER 408, [1980] 3 WLR 138, Bailii, [1980] UKHL 4)
  • City of London Building Society -v- Flegg And Another, HL, Cited, (lip, [1988] AC 54, [1987] 3 All ER 435, [1987] 2 WLR 1266, Bailii, [1987] UKHL 6)
  • Abbey National Building Society -v- Cann, HL, Cited, ([1990] 1 All ER 1085, [1991] 1 AC 56, Bailii, [1990] UKHL 3)
  • AIB Group (UK) Plc -v- Mark Redler & Co (A Firm), ChD, Cited, (Bailii, [2012] EWHC 35 (Ch))
  • Nationwide Anglia Building Society -v- Ahmed, CA, Cited, ((1995) 70 P & CR 381)
  • Target Holdings Ltd -v- Redferns (A Firm) and Another, HL, Cited, (Gazette 06-Sep-95, Times 21-Jul-95, Independent 10-Aug-95, [1996] 1 AC 421, Bailii, [1995] UKHL 10, [1995] 3 All ER 785)
  • Barclays Bank Plc -v- Estates & Commercial Ltd and Another, CA, Cited, (Gazette 20-Mar-96, [1997] 1 WLR 415)
  • Mothew (T/a Stapley & Co) -v- Bristol and West Building Society, CA, Cited, (Times 02-Aug-96, Bailii, [1996] EWCA Civ 533, [1998] Ch 1, [1997] 2 WLR 436, [1996] 4 All ER 698)
  • Jerome -v- Kelly (Her Majesty's Inspector of Taxes), HL, Cited, (House of Lords, [2004] UKHL 25, Bailii, Times 20-May-04, [2004] 21 EGCS 151, [2004] STI 1201, [2004] 2 All ER 835, [2004] 1 WLR 1409, [2004] NPC 75, [2004] WTLR 681, [2004] STC 887, 76 TC 147, [2004] BTC 176)
  • Hardy and others -v- Fowle and Another, ChD, Cited, (Bailii, [2007] EWHC 2423 (Ch))
  • Lloyds TSB Bank Plc -v- Markandan & Uddin (A Firm), ChD, Cited, (Bailii, [2010] EWHC 2517 (Ch), [2011] PNLR 6)
  • Redstone -v- Welch & Jackson, , Cited, ([2009] EG 98)
  • Edward Wong Finance Co Ltd -v- Johnson Stokes & Master, PC, Cited, ((1983) 80 LSG 3163, [1984] 2 WLR 1, [1983-84] ANZ Conv R 640, [1984] AC 296, Bailii, [1983] UKPC 32)
  • Abigail -v- Lapin, PC, Cited, (Bailii, [1934] UKPC 33, [1934] AC 491, 151 LT 429, [1934] All ER 720)
  • In re Connolly Brothers Ltd (No. 2), ChD, Cited, ([1912] 2 Ch 25)
  • Coventry Permanent Economic Building Society -v- Jones, ChD, Cited, ([1951] 1 All ER 901)
  • Security Trust Co -v- The Royal Bank of Canada, PC, Cited, ([1976] AC 503, Bailii, [1975] UKPC 23)
  • Church of England Buidling Society -v- Piskor, CA, Cited, ([1954] Ch 553)

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January 26, 2012

Walter Wardle -v- The Very Reverend John Bethune; PC 20-Nov-1871

Article 1688 of the Civil Code of Lower Canada enacts that, ‘I If a building perish in the whole or in part within ten years, from a defect in construction, or even from the unfavourable nature of the ground, the Architect superintending the work and the Builder are jointly and severally liable for the loss.’ Such Article held to be declaratory of the law of Lower Canada, as it existed before the promulgation of the Code. A Builder, before the passing of the Code, contracted to execute, in a workmanlike manner, all the work requisite to be done in building and completing Christ Church Cathedral, in Lower Canada, according to the plans and drawings made by an Architect, upon foundations already made and completed by a previous Builder, under the direction of his Employer’s Architect, the expense of which foundations the contract stipulated should be estimated and allowed for. The Builder erected the Cathedral in strict conformity with the contract, under the direction of the Architect, and in a workmanlike manner; but the Tower of the Cathedral, shortly after it was erected, and before the works were completed, sunk, and considerable damage was done. The cause of the sinking was found to be the insufficiency of the foundations, as planned by the original Architect, and constructed by the former Builder. This defect, though not patent, might have been discovered by the Builder of the Cathedral, before making the contract : Held (affirming the judgment of the Court of Queen’s Bench to Lower Canada), in an action by the Builder against his employer (the Employer claiming to deduct from the contract price agreed to be paid to the Builder, the amount of his charge for repairing the damages caused to the building by the sinking of the Tower, through the insufficiency of the foundations) that the Employer was entitled to make the deduction, as the Builder was responsible for the defect in the foundations, and was not freed from liability either by acting under the directions of his Employer’s Architect, or by reason of the defective foundations being the work of the preceding Builder. The decision in the case of Brown v. Laurie adopted.

Court: PC
Date: 20-Nov-1871
Links: Commonlii,
References: [1871] EngR 46, (1871) 8 Moo PC NS 223, (1871) 17 ER 296

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