The claimant is entitled to lowest rate care component (cooking basis) of disability living allowance.Court: SSCS
References:  UKSSCSC CDLA_1480_2006
The claimant is entitled to lowest rate care component (cooking basis) of disability living allowance.Court: SSCS
ECFI External Relations – Non-contractual liability of the Community – Incompatibility of the Community banana import regime with the rules of the World Trade Organization, (WTO) – Imposition by the United States of America-retaliation under the form of a customs-duty levied on imports from the Community by virtue of an authorization of WTO – Decision of settlement body of the WTO – Dispute – Legal effects – Community liability in the absence of unlawful conduct of its institutions – Causal link – Unusual and special damageCourt: ECFI
ECFI Action for annulment – Competition – Commission decision declaring a concentration to be incompatible with the common market – Regulation (EEC) No 4064/89 – Ineffectiveness of a partial challenge to the decision – Aeronautical markets – Action that cannot lead to annulment of the decision.Court: ECFI
T&N had exposure to asbestosis claims; these claims were insured by Lloyd’s but on terms that if payments were to be made, T&N should make certain reimbursements to Lloyd’s. T&N then insured with a captive company known as Curzon their liability to make such reimbursements. Lloyd’s called on T&N to make such reimbursement and when T&N became insolvent claimed that the right of recovery from Curzon became transferred to them (Lloyd’s) so that they could claim against Curzon under the 1930 Act.
Held: What was insured was the non-payment of a contract debt due from T&N to Lloyd’s and that such non-payment was not covered by the 1930 Act.
It is a fundamental rule of cmpany law that that the Companies Acts by implication prohibit a company from returning capital to shareholders except in one of the ways expressly permitted by the Acts.Date: 01-Jan-1887
Subrogation is a remedy, not a cause of action. Subrogation of Customs and Excise to a creditor’s right of proof in the winding up of a supplier was refused as it would have been contrary to the statutory scheme for the administration of VAT.Court: CA
ECHR Article 3 of Protocol No. 1
Free expression of opinion of people
Use of special polling stations for the military in circumstances not permitted by domestic law: violation
Facts – Under the Azerbaijan Electoral Code, military personnel were required to vote in ordinary polling stations. However, where this was not practical, arrangements could be made for them to vote in military polling stations provided three conditions were fulfilled: that the unit was located outside a populated area, it would take more than an hour to get to the nearest ordinary polling station by public transport and the total number of servicemen concerned exceeded 50. The applicant, a candidate in the 2005 parliamentary elections, complained to the Electoral Commission and the domestic courts that special polling stations had been created in his constituency for military personnel even though the statutory conditions had not been met since the units concerned were located in a populated area within a short walking distance of the ordinary polling stations. His complaint and subsequent appeals to the domestic courts were rejected.
Law – Article 3 of Protocol No. 1: Although Article 3 of Protocol No. 1 did not contain an express reference to the ‘lawfulness’ of any measures taken by the State, the rule of law was inherent in all the Articles of the Convention and its Protocols. That principle entailed a duty on the part of the State to put in place a legislative framework for securing its obligations under the Convention in general and Article 3 of Protocol No. 1 in particular, and to ensure that its public officials charged with executing those obligations did not act outside the law, but exercised their powers in accordance with the applicable legal rules.
While the Court was not required under Article 3 of Protocol No. 1 to verify whether every particular alleged irregularity amounted to a breach of domestic electoral law, its task was nevertheless to satisfy itself, from a more general standpoint, that the respondent State had complied with its obligation to hold elections under free and fair conditions and ensured that individual electoral rights were exercised effectively. In cases where it was alleged that the breach of the domestic legal rules was such as to seriously undermine the legitimacy of the election as a whole, Article 3 of Protocol No. 1 required the Court to assess whether such a breach had taken place and resulted in a failure to hold free and fair elections. In so doing, the Court could have regard to whether an assessment in this respect had been made by the domestic courts. If it had, the Court could then confine its own review to whether or not the domestic courts’ finding was arbitrary. In the applicant’s case, however, no such assessment had been made.
It was clear that the elections in the two polling stations concerned had been conducted outside the applicable legal framework and were illegitimate. The fact that the results from those polling stations were then taken into account by the electoral authorities and aggregated with the legitimate votes cast in other polling stations, with a significant impact on the overall election result, had undermined the integrity of the entire election process in the applicant’s constituency.
The circumstances of the case and the observations of the OSCE/ODIHR in its final report on the 2005 elections* showed that this situation was the result not of a mistake but of a deliberate practice of organising military voting in breach of the requirements of the Electoral Code, as was further demonstrated by the manner in which the applicant’s complaints had been ignored by the Electoral Commission and summarily rejected by the domestic courts without any examination of the substance. Such conduct on the part of the electoral commissions and courts revealed an apparent lack of genuine concern for upholding the rule of law and protecting the integrity of the election.
These considerations were sufficient for the Court to conclude that the national authorities had failed to hold the election in the applicant’s constituency in accordance with the requirements of Article 3 of Protocol No. 1.
Conclusion: violation (unanimously).
ECFI External Relations – Non-contractual liability of the Community – Incompatibility of the Community banana import regime with the rules of the World Trade Organization, (WTO) – Imposition by the United States of America – retaliation in the form of a customs-duty levied on imports from the Community by virtue of an authorization-of-WTO – Decision of-settlement body of the WTO-Dispute – Legal effects – Community liability in the absence of unlawful conduct of its institutions – Causal link – Unusual and special damageCourt: ECFI
There was nothing in the 1862 Act or in any other Act requiring the memorandum of a company to contain any reference to the rights of shareholders in the capital of the company inter se, and so: ‘The division of the capital into shares of a certain fixed amount which must appear in the memorandum would not be altered or affected by issuing some of the shares as preference shares.’ What is fair and equitable must depend on the circumstances of each case.Court: HL
The court had already found that the defendants had misused the confidential information of the claimant being secret information used in the manufacture of long lasting insecticidal mosquito bed nets mainly sold in areas of the world where malaria is endemic. The court now considered the level of damages to be awarded.Court: ChD
The claimant sought a declaration that he was the sole remaining director of a company, and that the removal of the defendant, his son, had been successful. The meeting at which the decision had been taken, had not been taken with the full notice for an EGM, but he said that those present had waived the requirement.Court: CA
The plaintiff, as a beneficiary under a will, sued the executors of the will and the trustees of a settlement made by him.
Held: The court directed that the other beneficiaries of the trust should be joined as defendants to avoid multiplicity of action.
Appeal on ancillary relief order.Court: CA
The plaintiff sought damages, saying that though a prisoner he had been further unlawfully confined within the prison.Date: 01-Jan-1886
The landlord sought an order for possession of the property let under an assured tenancy. It offered as suitable alternative accomodation one of its other properties which was presently let under an assured shorthold tenancy as to which the contractual period had expired.
Held: The alternatve accomodation could only be held to be available if it was reasonable to expect the landlord to take the necessary steps to recover it. In assessing the reasonableness of te offer, the court could allow for the finacial consequences to the tenant.
In a professional negligence claim where the claimant alleges negligence in defending a mortgagee possession action, and the claim engages the loss of chance principle, the question is not as to the likely outcome of the possession claim had it been defended properly, but the ‘prospects’ for their retention of the property if they had done so.Court: CA
In each case where a party’s disposition has been set aside for duress or undue influence: ‘the party has been subjected to an improper motive for action.’Date: 01-Jan-1887
The court considered when the claimant was said to have become aware of the possibility of a claim: ‘In order to mount the action she did not need to be advised that the failure to advise amounted to professional negligence. This is irrelevant for the purposes of subsection (5) and the start date for reckoning the limitation period.’Date: 01-Jan-2001
EAT Unfair Dismissal – Reasonableness of dismissal. Unfair Dismissal and Redundancy
In paragraph 22 of its Reasons the Tribunal appears to have decided that the employer was required to give the employee ‘first refusal’ to return to a particular job when she was redundant. If so, no adequate process of reasoning as to how the ‘reasonable responses’ test applied and why this result was reached.
Constables were entitled, upon a lawful arrest of a person charged with treason or felony to take and detain property ‘found in his possession’ which would form material evidence in his prosecution for crime.Date: 01-Jan-1887
In considering the removal of a liquidator, the court referred to the John Moore Gold case: ‘In my opinion, although of course unfitness discovered in a particular person would be a ground for removing him, yet the power of removal is not confined to that, and I do not think that the late Master of the Rolls in the case of In re Sir John Moore Gold Mining Company ((1879) 12 ChD 325 at 331), which has been cited, intended to give an exhaustive definition.’ (Cotton LJ). It is not necessary in order to justify the court under the section in removing the liquidator that there should be anything against the individual. However, in this case the liquidator: ‘may consider that the judgment of this Court is not based in any way on the possibility of any reflection upon himself, either in his conduct in this matter or in his general fitness to be a liquidator of any honourable company in the kingdom – his character is clear.’ and ‘In many cases, no doubt, and very likely, for anything I know in most cases, unfitness of the liquidator will be the general form which the cause will take upon which the Court in this class of case acts, but that is not the definition of due cause shewn. In order to define ‘due cause shewn’ you must look wider afield, and see what is the purpose for which the liquidator is appointed. To my mind the Lord Justice has correctly intimated that the due cause is to be measured by reference to the real, substantial, honest interests of the liquidation, and to the purpose for which the liquidator is appointed. Of course, fair play to the liquidator himself is not to be left out of sight, but the measure of due cause is the substantial and real interest of the liquidation.’ (Bowen LJ)Court: CA
A suit was instituted against the directors of an abortive company, to make them liable for acts of mismanagement and for the misapplication of its funds. This was compromised by an order on the Defendants to pay a fixed sum, One of them having paid more than his share : Held, that he could sustain a suit simply for contribution in respect of the compromise, and that the co-directors were not entitled without a cross-bill, to make the Plaintiff, at the same time, account for his general Iiabilities to the company.Date: 24-Jul-1855
The defendant was convicted of conspiracy after visiting potential suicides, attempting to dissuade them but then when they could not be persuaded, giving them practical assistance to commit suicide.Court: CACD
The Vice-Chancellor had held that two tenants of Sir John Ramsden, the owner of a large estate near Huddersfield, were entitled to long leases of plots on the estate. They ostensibly held the plots as tenants at will only, but they had spent their own money in building on the strength of assurances, said to have been given to them by the landowner’s agent, that they would never be disturbed.
Held: The decision was overturned. The difference of opinion was over an issue of fact, that is the substance of what was said on the occasion when some tenants agreed to be tenants at lower rents than were being paid by other tenants of Sir John Ramsden.
Lord Kingsdown, dissenting on the facts, said: ‘The rule of law applicable to the case appears to me to be this; if a man, under a verbal agreement with a landlord for a certain interest in land, or what amounts to the same thing, under an expectation, created or encouraged by the landlord, that he shall have a certain interest, takes possession of such land, with the consent of the landlord, and upon the faith of such promise or expectation, with the knowledge of the landlord, and without objection by him, lays out money upon the land, a Court of equity will compel the landlord to give effect to such promise or expectation. This was the principle of the decision in Gregory v. Mighell 18 Ves. 328, and, as I conceive, is open to no doubt.’ Even if there were uncertainty as to the terms of the contract, a court of equity could nevertheless interfere in order to prevent fraud but that it was unclear what, in that case, the remedy should be. The choices were between the grant of a specific interest in the land and the grant of a restitutionary remedy such as monetary compensation.
Lord Cranworth LC said: ‘If any one makes an assurance to another, with or without consideration, that he will do or will abstain from doing a particular act, but he refuses to bind himself, and says that for the performance of what he has promised the person to whom the promise has been made must rely on the honour of the person who has made it, this excludes the jurisdiction of Courts of equity no less than of Courts of law.’
ECJ Judgment – Reference for a preliminary ruling – Approximation of laws – Industrial policy – Directive 2001/83/EC – Medicinal products for human use – Article 6 – Marketing authorisation – Article 8(3)(i) – Requirement to attach to the application for authorisation the results of pharmaceutical pre-clinical tests and clinical trials – Derogations relating to pre-clinical tests and clinical trials – Article 10 – Generic medicinal products – Concept of ‘reference medicinal product’ – Whether the holder of a marketing authorisation for a reference medicinal product has an individual right to oppose the marketing authorisation of a generic of the reference product – Article 10a – Medicinal products of which the active substances have been in well-established medicinal use within the European Union for at least 10 years – Whether it is possible to use a medicinal product for which authorisation has been granted on the basis of the derogation provided for in Article 10a as a reference medicinal product for the purpose of obtaining a marketing authorisation for a generic productCourt: ECJ
The purpose of an asset freezing order is not to give a claimant security for his claim or give him any proprietary interest in the assets restrained.Date: 01-Jan-2001
It will generally only be in rare cases that the judge will exercise his discretion to admit new evidence after judgment has been handed down.Date: 01-Jan-2001
The defendant appealed against a striking out of his defence on a claim for copyright infringement.
Held: The appeal succeeded. Leave should have been given. Whether copying was substantial depended in part on quality, which was a matter of degree. The court identified the difficulties in identifying the sorts of evidence which might be admissible in a claim for 3-dimensional copying. Fox LJ said: ‘I am not satisfied that no further evidence is relevant or admissible.’
(Court of Appeal of New Zealand) Lawyers had acted for a claimant in mediation proceedings with a defendant and had signed a comprehensive confidentiality agreement. The mediation resulted in a settlement. They were then instructed by another claimant in respect of a very similar dispute against the same defendant.
Held: There was a risk that the lawyers would make use of confidential information acquired in the earlier proceedings in the subsequent action, and they should not be permitted to continue to act.
Blanchard J said: ‘Certainly a party seeking the exclusion of the other side’s legal adviser must first show that there is an appearance of risk, going beyond the remote or merely fanciful, of conscious or unconscious use or disclosure by the lawyer of something relevant to the current dispute of which the lawyer gained knowledge as a result of participation in an earlier mediation. But if that threshold is reached, it is then for the lawyer to demonstrate that in fact no such risks exists or that, if it does, no damage, other than de minimis, could possibly result from use or disclosure.’
The defendant appealed saying that the magistrates in convicting him had given the impression that they had applied a lower standard of proof than was required.
Held: Even though there was no basis to find that the magistrates had in fact applied a lower standard the words used gave the impression that they might have done. The defendant had been left with a feeling that he had not been given a fair trial, and the conviction wa set aside.
The defendant having been found to have infringed the defendants patents, now appealed against the method of calculation of damages.
Held: The appeal failed. Fletcher Moulton LJ emphasised the discretion given to a judge, and said: ‘But I am not going to say a word which will tie down future judges and prevent them from exercising their judgment, as best they can in all the circumstances of the case, so as to arrive at that which the plaintiff has lost by reasons of the defendant doing certain acts wrongfully instead of either abstaining from doing them, or getting permission to do them rightfully.’
The court identified two jurisdictions for the court in construing trusts: (1) the jurisdiction to decide questions of construction as to the ambit of trustees’ powers, and (2) the jurisdiction to ‘bless’ a particular transaction proposed by the trustees in relation to which they are not surrendering their discretion to the court.Date: 01-Jan-2001
The land-owner came to use the second storey of a house as a single dwelling-house where the planning permission for that second storey was conditional on its use only as storage ancillary to residential use of the remainder of the premises. The Court was asked whether that breach was fell within the section. Did ‘it relate to a breach of planning control consisting in: ‘the making without planning permission of a change of use of any building to use as a single dwelling house’.
Held: The breach was covered by the words of section 87(3)(c) and the fact that the change of use was also a failure to comply with a condition did not override that. ‘unlike other changes of use, householders who change the use of a building to that of a single dwelling-house should only be vulnerable to enforcement action if it is instituted within four years from the change. ‘
The debtor had contracted to sell his land to a third party developer, Silver. Between contract and completion, the debtor was made bankrupt. His wife, who already held legal charges over part of the land, took a transfer of a charge over the remainder of the land from Nationwide Building Society and completed the contract by transferring the entirety of the land to Silver in exercise of her power of sale as mortgagee. It was contended that, for the purposes of section 423, the sale by the debtor’s wife as mortgagee to Silver was a sale at an undervalue which had been entered into by the debtor.
Held: The suggestion was rejected. The sale by the debtor’s wife as mortgagee could not be dismissed as ‘conveyancing mechanics’, and the transfers by the debtor’s wife effectively superseded the contract.
An unwanted kiss may be a battery. Lawton LJ discussed the individual responsibility of a police officer: ‘[chief constables] cannot give an officer under command an order to do acts which can only lawfully be done if the officer himself with reasonable cause suspects that a breach of the peace has occurred or is imminently likely to occur or an arrestable offence has been committed.’Court: CA
(Kingston Crown Court) Two brothers, in their mother’s absence but with her permission, held an overnight party at her house. During the evening cannabis was smoked by their guests. The judge had applied Mogford. Judge Oddie: ‘To be ‘the occupier’ the person charged must be proved to have had, whether lawfully or otherwise, such an exclusive possession of the premises at the material time as to enable him to prevent the smoking of cannabis in them. Not every transient use of premises or physical ability to remove another from the premises would enable the court or jury to find the nature, extent and degree of possession sufficient for a finding that the person was the occupier of the premises. On the agreed facts the parents remained occupiers but had delegated to their sons their authority to licence the entry of guests during their absence overnight. In these circumstances the children did not become ‘occupiers’ for the purpose of an offence under the Act.’Court: CC
The defendant had been involved a prolonged period of high speed and dangerous driving involving unsafe overtaking incidents. He eventually overtook on a blind corner at excessive speed, and collided with an oncoming vehicle, causing the death of its driver. He denied that he had been at fault. He was convicted of causing death by dangerous driving and sentenced to nine months imprisonment, and given a two year disqualification. The Attorney general referred the sentence under section 36 of the 1988 Act.
Held: The reference succeeded. The sentence was increased to 15 months imprisonment and the ban increased to three years. The court took account of the fact that the incident occurred after a series of dangerous manoeuvres at excess speed. Though he was of previous good character, had himself required hospital treatment, and had shown genuine remorse, the original sentence was unduly lenient.
The plaintiffs had claimed and proved infringement of patents relating to improvements in gas meters. The Master had assessed damages in the inquiry in relation to the plaintiffs’ loss of profits in relation to entire meters. The defendants now argued inter alia, that this was wrong because the part of the meters embodying the invention was trivial in relation to the whole – the profit on them represented about 1/44th of the whole profit on the meter.
Held: The argument was rejected. Eve J rejected this and also a comparison the defendants had drawn with an earlier case relating to accessories for a car. He ruled that damages should be assessed in relation to profits lost from sales of entire meters.
Eve J said: ‘There the accessories were of a nature capable of being applied to any car, and were certainly capable of being and were in fact dealt with as separate. Here nothing of that sort takes place and the parts incorporating the invention, are, in my opinion, component and essential parts of the meter regulating and controlling – from the Gas Company’s point of view – the most important functions of the meter, that is to say the supply of the exact amount of gas to which the consumer is entitled having regard to the amount he has paid and the current price of gas. In my opinion, the mechanism protected by these Patents is of the very essence of the meter;’
EAT Practice and Procedure : Striking-Out/Dismissal – Costs
The Claimant had an opportunity to give reasons orally why an order should not be made before her claim was struck out: rule 19(1) of the Employment Tribunal Rules 2004 was complied with. The Employment Tribunal did not err in law in making the striking out order. Appeal against striking out order dismissed.
The Claimant did not have a proper opportunity to give reasons orally why an order should not be made before the costs order was made: rule 38(9) of the 2004 Rules was not complied with. Appeal against costs order allowed.
(Singapore) The parties disputed liability for damage to 17 tyres belonging to the plaintiff received in the harbour operated by the defendant but never delivered. The defendant claimed the protection of an Ordinance requiring any claim to be made within six months. To claim that protection, the defendant had to establish that in receiving the tyres, it was doing an act ‘in pursuance of any public duty or authority’.
Held: The Company’s appeal failed.
To claim the defence, the act must be in the discharge of a public duty. In deciding this it will sometimes be relevant go ask whether the contract had been entered into voluntarily but the existence of a contract as such is not decisive to exclude the defence. Some effect must be given to the word ‘authority’.
In this case, the Board was under a duty to provide the harbour services, and these included warehousing as a normal adjunct.
(Supreme Court of Canada) There is a head of public policy which recognises the need to preserve the validity of compromises freely entered into with advice. The court advocated the application of equitable principles for both mistake of fact and mistake of law: ‘It would be best to abolish the mistake of law rule, place mistakes of law and of fact on an equal footing, and recognise that with mistakes of law the principle of conscious ignorance or conscious assumption of risk will often prevent relief . . ‘ (Dixon J dissenting)Date: 01-Jan-1982
A contract for the sale of land by a charity was expressed to be subject to and conditional upon the grant of a consent before 31 March 1982 and if consent was not granted before that date then the contract was to be ‘null and void and of no further effect’. The plaintiffs registered an estate contract. The defendants, charity trustees, sought on a motion to have the registration vacated. It had been argued: ‘On that footing [that there was no unconditional contract], the question is whether the contract is a conditional contract which is registrable as an estate contract. [Counsel] contended that it was not, for a variety of reasons. First, the contract was void, or at least ineffective, because it had been made without the approval of the Charity Commissioners. Second, even if initially it was valid, it had come to an end because the Charity Commissioners had refused to approve it. Third, even if it continued to exist as a valid conditional contract, such contracts were not registrable as estate contracts.’
Held: The motion was refused. In addressing the submissions, the court reviewed the authorities and: ‘In the present case, the effect of the exchange of letters in March 1980 was that clause 2.1 of the contract operated to make all the provisions of the contract, apart from the opening words, clause 1, and clause 2.1 itself, ‘subject to and conditional upon’ the Charity Commissioners making an order under section 29 of the Charities Act 1960, authorising the governors to enter into and complete both the contract and the leases. There is a curious element of circularity here: the parties enter into an agreement that nearly all the agreement is subject to an order being made authorising the governors to do what they have done, namely, enter into the agreement. But looking at the substance, it seems plain to me that it is the Michael Richards case  3 All ER 416 that applies rather than the Milner case  Ch 275, so that I do not think that the contract is invalidated by section 29(1) of the Charities Act 1960.’
The Society was responsible for ensuring that sales of controlled pharmaceuticals only took place under the supervision of a pharmacist. The defendants had adopted supermarket style arrangements where the purchaser selected the goods and took them to a till. The Society said that a sale took place when the goods were selected, and at a time when the transaction was unsupervised. ‘The question is whether the offer is an offer of the purchaser, or an offer of the buyer.’
Held: There was in principle no difference between the supermarket type arrangement and an ordinary shop. ‘The mere exposure of goods for sale by a shopkeeper indicates to the public that he is willing to treat but does not amount to an offer to sell. I do not think I ought to hold that that principle is completerly reversed merely because there is a self-service scheme, such as this, in operation. In my opinion it comes to no more than that the customer is informed that he may himself pick up an article and bring it to the shopkeeper with a view to buying it, and if, but only if, the shopkeeper then expresses his willingness to sell, the contract for sale is completed. In fact, the offer is an offer to buy, and there is no offer to sell. . . ‘ There is no sale until acceptance of the price at the till. The shopkeeper has to be free to refuse to sell, and the buyer free to pick something up without having immediately bought it. ‘The offer, the acceptance of the price, and therefore the sale, take place under the supervision of the pharmacist.’
The defendant had over a long period created infringing copies of works whose copyright was owned by the claimants. On investigation, large numbers of items were discovered, and the defendant had put the proceeds into readily identifiable assets. The plaintiff sought orders for their delivery up.
Held: The possibility of self-incrimination by the defendant was no bar to an order for their delivery up. The court set out guidelines for such actions saying: 1) There should be clear evidence of the defendant’s intention to dispose of the assets, but there should also be evidence that the assets had been acquired as a result of the defendant’s wrongful actions, and 2) Items for the use by the defendant in his ordinary daily life or lawful business should not be delivered up, but furnishings being objets d’art purchased to hide the proceeds could be claimed.
Lawton LJ: ‘On the facts put before us this was not a case of a Plaintiff seeking to freeze a Defendant’s assets pending trial in anticipation of getting judgment. It was one, which seemed to us to show that the first Defendant was conducting his affairs with intent to deprive anyone who got judgment against him of the fruits of victory. ‘
A liquidator’s remuneration is not encompassed by the word ‘expenses’. The term ‘expenses’ is not a term of art. It may include any expenses which the liquidator may be compelled to pay in respect of his acts in the course of a proper liquidation of the company’s assets.
The liquidator is the ‘person who can see what the position is’ and has the means to ascertain the company’s financial position at any time.
Freedom of Information Act 2000, and the engagement of the exemption under Section 36(2), 40(1), 40(2) & 42 and the application of the public interest test.
Held: The Tribunal upholds the decision notice (FS50433433) dated 26 February 2013 and dismisses the appeal.
Two men quarrelled in a public house. One struck at the other with his belt. The glancing blow bounced off and struck the prosecutrix, wounding her severely. He was prosecuted for having unlawfully and maliciously wounded her, contrary to section 20 1861 Act. Counsel for the defendant relied on Pembliton.
Held: Lord Coleridge CJ said: ‘It is common knowledge that a man who has an unlawful and malicious intent against another, and, in attempting to carry it out, injures a third person, is guilty of what the law deems malice against the person injured, because the person is doing an unlawful act, and has that which the judges call general malice, and that is enough.’
Bowen LJ distinguished Pembliton which: ‘was founded not upon malice in general but on a particular form of malice, viz., malicious injury to property.’ and ‘It is quite clear that the act was done by the prisoner with malice in his mind. I use the word ‘malice’ in the common law sense of the term, viz., a person is deemed malicious when he does an act which he knows will injure either the person or property of another.’
When an authority applies for the revocation of a nursing home’s licence, only evidence relevant to the issues identified in the 1984 Act can be presented. The authority must show a case to the civil standard of proof. The authority need not be limited to the elements set out in the written statement of reasons, and, on appeal, matters arising subsequently could be adduced.Date: 01-Jan-1987
The relationship between partners is of a fiduciary nature. ‘If fiduciary relation means anything I cannot conceive a stronger case of fiduciary relation than that which exists between partners’Date: 01-Jan-1886
Renewed application for leave to challenge to an order for a post-mortem examination. The deceased had died aged 88.
Held: No doctor had recently attended the deceased, and a post mortem was required at law. Leave was refused. It was for the coroner to address as best he could within the law the humanitarian concerns of the family.
Appeal against a decision of the Respondents with respect to a surcharge assessment and being a reasonable excuse appeal.Court: VDT
The claimant sought damages from the defendant surgeon alleging negligent care of a footballer. The defendant argued that he had no duty to the club as employer of his patient who was being treated through his BUPA membership. It would have created a conflict of interest if he had accepted a contractual obligation to the claimant.
Held: There was no intention to create legal relations between the parties, and there was no contract. There was in this case not sufficient proximity between the Claimant and the Defendant to give rise to a duty of care toward the claimant. It would not be just and equitable to impose such liability.
The court considered an action for damages for deceit: ‘As I understand the law, it is not necessary that the mis-statement should be the motive, in the sense of the only motive, the only inducement of a party who has acted to his prejudice so to act. It is quite sufficient if the statement is a material inducement to the party to act upon it.’ The question of damages is how much worse off is the plaintiff than if he had not entered into the transaction. If he had not done so he would have had the money in his pocket.Court: CA
The claimant sued for breach of trust. The action was re-instated after being struck out for want of prosecution, but in the meantime the defendant had been made bankrupt and then discharged from bankruptcy. An order for costs was then made which the claimant now sought to enforce.
Held: The possibility of a future costs order was not a liability, contingent or otherwise, at the date of the bankruptcy and was therefore not a debt from which Mr Glenister’s discharge from bankruptcy released him. Under Order 62 Rule 3(2) the claimant had no right to recover the costs except under an order of the court. Whether or not to award costs was entirely in the discretion of the court. Unless and until the court exercised its discretion to make an award of costs, no debt of any kind existed. The making of an order for costs by a court could be seen as a contingency, in the sense of being something that might happen in the future, but it was not a contingent liability. Thorpe LJ said that a distinction had to be drawn between a liability and the risk of a liability.
EAT Trade Union Membership
A Solicitor’s letter before action sent on behalf of a Union demanding costs and undertaking was not a ‘determination’ under Section 64 Trade Union and Labour Relations Act.
Lord Justice Chadwick considered what was meant by actual completion: ‘I accept, of course, that there is no absolute rule that completion takes place when title is transferred . . We were referred to no case in which it has been held that completion did not take place until some time after title had been transferred. The question has to be answered on the facts of each case; construing the language which the parties have used in their agreement in the light of the facts known to them (or which they must be taken to have known) at the time.’Court: CA
The court criticised the failure of applicants for an order made not on notice to follow good practice. Applications not on notice should be made only where there was real urgency. The more serious the allegations made the greater was the need to keep proper records and for openness. An applying party should normally provide a witness statement. It was not proper to rely upon the courts’ recording system, and a duty fell on both solicitors and counsel attending to keep a full note of what transpired to supply as neceesary to the other party.Court: ChD
VDT ASSESSMENT – whether to best judgment – invoices revealing quantity of children’s clothing as a proportion of turnover – best judgment not in dispute – insufficient evidence to upset liability – assessment to best judgment – case dismissedCourt: VDT
ECJ Judgment – Reference for a preliminary ruling – Community Customs Code – Recovery of import duties – Origin of goods – Means of proof – Charter of Fundamental Rights of the European Union – Article 47 – Rights of the defence – Right to effective judicial protection – Procedural autonomy of the Member StatesCourt: ECJ
ECJ Judgment – References for a preliminary ruling – Reference for a preliminary ruling – Rome Convention on the law applicable to contractual obligations – Article 4(1), (2), (4) and (5) – Law applicable by default – Commission contract for the carriage of goods – Contract for the carriage of goodsCourt: ECJ
The court was asked whether costs awarded against a company were costs in the winding up.
Held: Where a creditor has obtained leave of the court to bring proceedings against a company in liquidation, any costs to which the creditor would become entitled as a result of the successful prosecution of the proceedings would be payable out of the company’s assets in full.
The rationale for the estate costs rule lies in the fact that: ‘a company in winding up ought to be dealt with as a matter of course like any other litigant, and if an action be brought or resisted for the benefit of the estate, and that action be brought fruitlessly, or defended fruitlessly, then the estate, that is to say, the other creditors, ought, like everybody else, to be fixed with the costs to which they have improperly and unnecessarily put their opponent.’
An order for costs could be proved where the action was in respect of a provable debt or liability. In such a case they were regarded as an addition to the sum recovered.Date: 01-Jan-1899
EAT Practice & Procedure: Appearance/Response, Review & Appellate Jurisdiction/Burns-Barke
When a Respondent has been debarred from taking part in proceedings under ET Rule 9, he may request Reasons from the ET for the purpose of an application for review, but not for any other purpose (and, consequently, at least pending any legislative change to Rule 9, a request for such Reasons intended solely for the purpose of considering an appeal can only be achieved by asking the EAT to exercise its powers under Rule 30(3)(b)). Because of the draconian effect of a Rule 9 order, a Tribunal must be aware of disproportionate consequences, for example the effect on a Respondent of being debarred from resisting quantum as well as liability. In any event, review opportunities at the EAT (by reference to Pendragon where appropriate) should be taken up. Doubted whether there is power to order or lay down a condition that an undisputed sum be paid over by an appellant.
(Outer House, Court of Session)Court: SCS
Lord Bramwell discussed the capitalisation of undistributed profis within a partnership: ‘Where there is a partnership, whether an ordinary partnership or an incorporated partnership . . There the undivided profits of any period, a year or shorter or longer time, continue to be undivided profits unless something in the articles of partnership or some agreement by all the partners make them capital. They do not become capital by effluxion of time or by their being used in the trading’.Date: 01-Jan-1887
(Grand Court of the Cayman Islands) The court considered a proposed undertaking by successor trustees to their predecessors not to distribute a proportion of the trust fund for as long as it was required to meet the outgoing trustees’ entitlement to an indemnity.
Held: Such an undertaking, giving effect to the retiring trustees’ entitlement to an indemnity and lien, was, although restrictive of the successor trustees’ discretionary powers, plainly not an illegitimate fetter on their discretion. The rule preventing a trustee from fettering his future exercise of a discretion given to him under the trust was not universal.
On the divorce, the husband was ordered to transfer his share in the house to the wife. On his bankruptcy shortly after, the order was confirmed. After the wife sold the property at a profit, the trustee in bankruptcy applied to set the transfer aside as a transaction at an undervalue.
Held: The starting point is consideration of the rights of spouses for financial provision and property adjustment orders under the 1973 Act.
Held: ‘The order of the court quantifies the value of the applicant spouse’s statutory right by reference to the value of the money or property thereby ordered to be paid or transferred by the respondent spouse to the applicant. In the case of such an order, whether following contested proceedings or by way of compromise, in the absence of the usual vitiating factors of fraud, mistake or misrepresentation the one balances the other. But if any such factor is established by a trustee in bankruptcy on an application under s.339 then it will be apparent that the prima facie balance was not the true one and the transaction may be liable to be set aside.’
Arden J was asked to approve aproposal that the company should go into voluntary liquidation, on the basis that, prior to that happening, the administrators would pay into a trust account in their own name a sum equal to the total amount owing to the preferential creditors, from which account the preferential creditors would be paid, leaving the balance of the money in the administrators’ hands to be passed on to the voluntary liquidators for distribution pro rata to the unsecured creditors. The purpose of this was that a voluntary liquidation was the preferred exit route for the administration, but the preferential creditors would otherwise have been prejudiced by that course, as their preferential status would only arise under a compulsory liquidation.
Held: Section 18(3) could only be relied on to support a provision “which results directly or indirectly in the discharge of the administration order”. However, the purpose of the administration had effectively come to an end, and “[A] provision is consequential even though it will have to take effect immediately before the discharge because it is a direction which is being made to the administrators and they of course will cease to hold office on discharge of the administration order. As I see it, this particular direction is necessitated by the application for discharge since there will have to be a liquidation, and voluntary liquidation is the preferred route.”
Arden J therefore considered that the Court had “power to make the proposed direction provided that the administrators have power to make proposed payments to themselves on trust”. The combination of section 14 of, and paragraph 13 of Schedule 1, to the 1986 Act did enable the court to make such an order: “part of the function of the administrators is to bring the administration to a conclusion . . in the best interests of the creditors . . Under Schedule 1 the Administrators have the power to present a petition for the winding up of the company, in other words, the functions extend to bringing the administration to a conclusion and ensuring that the company is put into a position from which it can make distributions to creditors. As I see it, it is part of their function to put the company in that position and in a manner which is most advantageous to the creditors. In this particular case, this is achieved by first putting the company in a position whereby it can enter into voluntary liquidation. As I see it, the proposed payment to the administrators as trustees is a payment which will enable that process to be achieved and therefore comes within paragraph 13.”
ECFI Non-contractual liability of the Community – Incompatibility of the Community regime governing the import of bananas with the rules of the World Trade Organisation (WTO) – Imposition by the United States of America of retaliatory measures in the form of increased customs duty levied on imports from the Community, pursuant to a WTO authorisation – Decision of the WTO Dispute Settlement Body – Legal effects – Community liability in the absence of unlawful conduct of its institutions – Causal link – Unusual and special damage.Court: ECFI
Buckley J held: ‘When the voluntary liquidator, or the liquidator in a compulsory winding up, comes to the Court for leave to bring or defend an action by or against the company, and obtains this leave, the judge in effect pledges the assets of the company for the costs of the action which he authorizes the liquidator to bring or adopt or defend.’ and ‘When there is a winding-up of a company – whether the liquidation be compulsory or voluntary – all claims of creditors ought prima facie to be dealt with in the winding-up in accordance with the rules applicable to the distribution of the assets, and that costs ought also to be dealt with in like manner; but that if an action is pending to which the company is a party, then, if the company which is in liquidation acting by its liquidator determines to prosecute or defend the proceedings for the estate, the estate must be treated as the party litigant, and must in case of failure pay the costs in full. In other words, the other creditors, for whose benefit the action is defended, must in such case bear the costs.’Date: 01-Jan-1905
IAT The finding of the IAT in YS and HA that a Midgan who had lost the protection of a local patron or patrons, and who had not found alternative protection in the city would be vulnerable to persecution is good law and applies to Yibir as well.Court: IAT
The defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. Parliament has given local authorities a special status to bring proceedings in their own name, thereby overcoming the difficulties which existed at common law in bringing civil proceedings in aid of public law. However the court should be slow to grant powers which risked the infringer in sanctions more onerous than the penalty imposed for the offence. S.222(1) confers on a local authority power to institute and maintain proceedings to enforce obedience to the criminal law within their district, being a power additional to the power at common law enabling the Attorney-General to proceed in such matters either ex officio or by relator action.Court: HL
Compensation was awarded to the owner of a warehouse near Blackfriars because the construction of the Victoria Embankment cut off his access across the public highway to a dock on the river. Lord Cairns LC quoted Thesiger QC as saying: ‘Where by the construction of works there is a physical interference with any right, public or private, which the owners or occupiers of property are by law entitled to make use of, in connection with such property, and which right gives an additional market value to such property, apart from the uses to which any particular owner or occupier might put it, there is a title to compensation, if, by reason of such interference, the property, as a property, is lessened in value.’ and ‘The word ‘physical’ is here used in order to distinguish the case from cases of that class where the interference is not of a physical, but rather of a mental, nature, or of an inferential kind, such as those of a road rendered less agreeable or convenient, or a view interfered with, or the profits of a trade, by the creation of a new highway or street, diminished in the old one. And in like manner the words ‘a right, public or private, which the owner of property is entitled to make use of,’ apply to this case and distinguish it from such cases as Hammersmith Railway Co. v. Brand. There no right, public or private, was interfered with, and the claim for compensation was made in respect of the injury to the enjoyment of the property.’Court: HL
The court considered whether corporation tax had to be paid as an expense of the liquidation in priority to other claims. In that case it had arisen not on profits but on chargeable gains, on sales of the company’s properties after the commencement of the winding up.
Held: ‘section 243(2) of the Income and Corporation Taxes Act 1970 [now section 8(2) of the 1988 Act] expressly enacts that a company is chargeable to corporation tax on a capital gain arising in the winding up. It follows that the tax is a charge which the liquidator is bound to discharge by payment to the extent that assets are available. It is, therefore, to my mind, beyond argument that the payment of the tax is a ‘necessary disbursement’ of the liquidator and must come within the fifth paragraph of rule 195(1) . . ‘
The former husband appealed an order for his committal to prison on a judgment summons in default of clearing arrears of maintenance payments. He said that the proceedings were criminal in nature and offended his rights to a fair trial under the Convention, in that evidence had been taken at less than criminal standards.
Held: The article 6 rights ‘are, of course, important rights, but they are not to be elevated so as to subvert the enforcement process upon which the judgment creditor is entitled to rely. ‘ The appeal failed: ‘The overwhelming reality is that an obligation was established by a consent order which remains on foot. There has been no subsequent application for its downward variation. The amount of the arrears that have accrued is not in issue.’
The court construed the devise of ‘my freehold farm and land situate at Edgware and now in the occupation of James Bray’ as including copy holds which were part of his farm and land situate at Edgware and in the occupation of James Bray, even though there were also freeholds which undoubtedly were included in the description given.Date: 01-Jan-1886
Walton J restated the rule in In re James: ‘the rule provides that where it would be unfair for a trustee to take full advantage of his legal rights as such, the court will order him not to do so, and, indeed, will order him to return money which he may have collected.’ To attract the defense it must be shown that: (1) There must be some form of enrichment of the assets of the bankrupt by the person seeking to have the rule applied (citing Government of India v Taylor  AC 491 per Lord Keith). (2) Except in the most unusual cases, the claimant must not be in a position to submit an ordinary proof of debt. The rule is not to be used merely to confer a preference on an otherwise unsecured creditor, but to provide relief for a person who would otherwise be without any. (3) In all the circumstances, it was not fair for an honest person to keep the money. (4) When the rule applies, it applies only to the extent necessary to nullify the enrichment of the estate.’Court: ChD
The trustee in bankruptcy disclaimed an agreement for a lease under Section 23. The landlord claimed to prove as creditor under the section.
Held: Where one party has repudiated a contract and the other party has accepted that repudiation as terminating the contract and he then exercises his secondary right to claim damages ‘Surely he is to prove for the damage which could be recovered for the breach of the contract.’ ‘I am satisfied that the injury referred to in the sub-section means the legal wrong that is done him. He is deprived of a certain contract, under which he was to recover a certain sum of money, and he is to prove against the estate for that which he would have had a right to recover or to sue for if he had not been deprived of that right by the bankruptcy.’ and ‘A landlord who has made a contract for £500 a year, to be paid to him for the use of the land, is entitled to claim £500 a year, minus what he can get for the land from another tenant.’
Mellish LJ said: ‘It is quite plain that the object of these sections is that the bankrupt should be absolutely relieved from any liability under any contract he has ever entered into. And the bankrupt being so relieved, it is plainly also the intention of the Legislature that the person deprived of the right of action against the bankrupt, and of the benefit of the contract which he made with the bankrupt, should be turned into a creditor in respect of what the Act describes the injury he has received. That, I think, must mean in respect of what he would have been entitled to recover against the bankrupt if the bankrupt had remained solvent. It would be contrary to every principle that in assessing the damages which could have been recovered against the bankrupt if he had not been made bankrupt, and for which proof is made, you are to take into consideration the fact of the bankrupt being insolvent, so that the amount of the proof is to depend upon the extent of his insolvency.’ and ‘In estimating the amount of damages, you are to take into consideration that the landlord regains possession of the property, and if he can get as much rent for the property afterwards as before, then the damages would be nil:if he gets less, it will be the difference.’
ECHR Article 3
Use of electrical discharge weapons (Tasers) during police raid on company offices: violation
Facts – Masked police officers raided the offices where the applicants worked. In the course of the operation they used electrical discharge weapons in contact mode, allegedly to overcome the applicants’ resistance and to prevent them from destroying evidence. Some of the applicants sustained burns as a result. A preliminary inquiry into the applicants’ allegations ended with a decision of the military prosecutor not to institute criminal proceedings against the officers concerned.
Law – Article 3: Electroshock discharges applied in contact mode (known also as ‘drive-stun’ mode) were known to cause intense pain and temporary incapacitation. Bulgarian law at the time lacked any specific provisions on the use of electroshock devices by the police, who were not trained in their use. The Court noted that in its 20th General Report the Committee for the Prevention of Torture (CPT) had expressed strong reservations regarding the use of electrical discharge weapons in contact mode. Properly trained law enforcement officers had many other control techniques available to them when they were in touching distance of a person who had to be immobilised.
Given the failure of the preliminary inquiry to establish in detail the exact circumstances of the incident and to account in full for the use of force of the extent and type alleged, the Government had failed to discharge the burden of disproving the applicants’ version of the events or to furnish convincing arguments justifying the degree of force used. There had thus been a violation of both the substantive and procedural aspects of Article 3.
Conclusion: violations (unanimously).
Article 41: EUR 2,500 in respect of non-pecuniary damage to each applicant whose complaint was declared admissible.
The court considered an employer’s duty to his workman injured at work. Bowen LJ ‘It is no doubt true that the knowledge on the part of the injured person which will prevent him from alleging negligence against the occupier, must be a knowledge under such circumstances as lead necessarily to the conclusion that the whole risk was voluntarily incurred. The maxim, be it observed, is not ‘Scienti non fit injuria,’ but ‘Volenti.’ There may be a perception of the existence of the danger without appreciation of the risk; as, where the workman is of imperfect intelligence.’ and ‘The defendant in such circumstances does not discharge his legal obligation by merely affecting the plaintiff with knowledge of a danger which but for a breach of duty on his own part would not exist at all. But, where the danger is one incident to a perfectly lawful use of his own premises, neither contrary to statute nor common law, where the danger is visible and the risk appreciated, and where the injured person, knowing and appreciating both risk and danger, voluntarily encounters them, there is, in the absence of further acts of omission or commission, no evidence of negligence on the part of the occupier at all. Knowledge is not a conclusive defence in itself. But, when it is a knowledge under circumstances that leave no inference open but one, viz. that the risk has been voluntarily encountered, the defence seems to me complete.’ The words at the end of s. 1 do no more than ‘remove such fetters on a workman’s right to sue as had been previously held to arise out of the relation of master and workman.’ S2(3) does not extend the master’s liability beyond that imposed by s. 1, and s. 2, sub-s. 1. In each case specified in s. 1, the maxim Volenti non fit injuria is applicable, and, if a workman, knowing and appreciating the danger and the risk, elects voluntarily to encounter them, he can no more maintain an action founded upon the statute than he can in cases to which the statute has no application.Court: CA
The liquidator sought directions from the court after former employees of the company submitted proofs of debt in respect of protective awards made for the company’s failure to consult on their redundancy before going into liquidation.
Held: The Act provided one remedy only for enforcement, and the debts were not provable. At the date of the liquidation, the employees had no contingent or other debt capable of being proved.
IPO After initiating the action, the claimant failed to prosecute the case diligently. He failed to respond to numerous communications from the Office. This amounted to an abuse of process and the action was therefore struck out for want of prosecution. The hearing officer decided that there was no public interest in continuing the action under section 72.Court: IPO
If the circumstances of a case are such as would make it the duty of one court in this country to restrain a party from instituting proceedings in another court here, they will also warrant it in imposing on him a similar restraint with regard to proceedings in a foreign court.
The fact of a foreigner having property in this country, enables the Court here to make effectual an injunction issued to him; but, especially in the case of a foreigner who seeks no assistance from the courts here, the issuing of such injunction ought clearly to be shown to be required as conducive to justice.
ECHR Article 10-1
Freedom of expression
Fine imposed on opposition MPs for showing billboards during parliamentary votes
Imposition d’amendes a des parlementaires de l’opposition condamnes pour avoir montre des affiches pendant des votes : violation
Facts – At the material time, all four applicants were members of the opposition in the Hungarian Parliament. On a motion introduced by the Speaker, they were fined amounts ranging from EUR 170 to EUR 600 for having gravely disrupted parliamentary proceedings after they displayed billboards accusing the government of corruption. The fines were imposed by the Parliament in plenary session without a debate.
In their application to the European Court, the applicants complained that the decisions to fine them for showing the billboards during the voting procedure had violated their right to freedom of expression under Article 10.
Law – Article 10: The fines imposed on the applicants constituted interference with their right to freedom of expression. The interference was prescribed by law and pursued the legitimate aims of protecting the rights of others and preventing disorder.
In assessing the proportionality of the interference, the Court considered the nature of the speech in the context of the legitimate aim sought to be protected, the nature of the impact of the impugned expression on order in parliament and the authority of parliament, the process applied and the sanctions imposed.
(a) Nature of the expression: The views expressed by the applicants concerned a public matter of the highest political importance that was directly related to the functioning of a democracy. Their main purpose was to criticise the parliamentary majority and the Government, rather than to personally attack one of the MPs or any other individual. Although they had had an opportunity to express their views on the bill subject of the vote, showing the billboards was also part of their political expression. The expressive acts of protest could not be equated in their function and effect with the speech opportunity that had been granted to them during the debate. Given the importance of public exposure to minority views as an integral function of democracy, minority members should have leeway to express their views, including in a non-verbal fashion, and considering the symbolic aspects of their speech, within a reasonable framework.
(b) Impact on parliamentary authority and order: The Court noted the importance of orderly conduct in parliament and the importance of respect for constitutional institutions in a democratic society. However, it was satisfied that the applicants’ display of the billboards had not created a significant disturbance: they had not delayed or prevented the parliamentary debate or vote, and had not disturbed the actual functioning of parliament. Their accusations against the Government’s policies had not challenged or undermined the authority of the Parliament, or exposed it to ridicule or disrespect.
(c) Procedure: Given the State’s margin of appreciation in this sphere, the arguably partisan nature of the sanctioning procedure did not in itself constitute a violation of the Convention. However, the Court identified a number of shortcomings in the procedure that was followed: the applicants were not given any warning that sanctions might be imposed, the Speaker did not specify, even less give reasons, why their conduct was ‘gravely offensive’, the decision to impose fines was taken without debate at a plenary session, which could not be considered an appropriate forum for examining issues of fact and law, assessing evidence and making a legal characterisation of the facts.
(d) Sanctions: While not atypical in parliamentary law in matters of personal affront, the fines imposed on the applicants could be seen as having a chilling effect on opposition or minority speech and expressions in Parliament.
In sum, there had been no compelling reason for the interference since parliamentary authority and order had not been seriously affected and it had not been shown that those interests had on balance been weightier than the opposition’s right to freedom of expression. The interference could not, therefore, be considered to have been ‘necessary in a democratic society’.
Conclusion: violation (unanimously).
Patent application GB 1009825.9 relates to electrochemical protection of steel in reinforced concrete exposed to the air. The applicants had been unable to satisfy the examiner that the claimed invention was novel and that amendments made to the application had not added matter. Following a hearing at which the applicants provided more information on the particular field in which the invention lay, the Hearing Officer accepted that the claimed invention was novel and that the amendments did not add matter. The case was referred back to the examiner to conclude her examination.Court: IPO
The Trustee in bankruptcy has relevant duties as the Trustee as an officer of the Court. Such a Trustee would not engage in conduct which could be seen to involve an unfair use of that position, and ‘where it would be unfair’ for a trustee in bankruptcy ‘to take full advantage of his legal rights as such, the court will order him not to do so’. The court will permit a mistake of law rule to be invoked to prevent repayment of sums paid under an error of law to or by a trustee in bankruptcy as an officer of the court.Date: 01-Jan-1874