Esso Petroleum Co Ltd -v- Niad Ltd; ChD 2001

Esso had entered into a solus agreement with Naid covering one filling station. Esso introduced a marketing scheme called ‘Pricewatch’ under which it made financial support available to its dealers in return for their selling petrol at recommended retail prices, designed to compete with or undercut Esso’s competitors. Niad agreed to join the scheme, but in fact sold petrol at prices in excess of the recommended prices. Morritt V-C awarded Esso an account of Niad’s profits. His reasons for doing so were that: ‘First, damages is an inadequate remedy. It is almost impossible to attribute lost sales to a breach by one out of several hundred dealers who operated Pricewatch. Second, the obligation to implement and maintain the recommended pump prices was fundamental to Pricewatch. Failure to observe it gives the lie to the advertising campaign by which it was publicised and therefore undermines the effectiveness of Pricewatch in achieving the benefits intended for both Esso and all its dealers within Pricewatch. Third, complaint was made of Niad on four occasions. On all of them Niad appeared to comply without demur. It now appears that the breaches of its obligation were much more extensive than Esso at first thought. Fourth, Esso undoubtedly has a legitimate interest in preventing Niad from profiting from its breach of obligation.’
He continued to make a restitutionary award: ‘It is undoubted that Niad obtained a benefit, in the form of the price support, to which it was only entitled if it complied with its obligation to implement and maintain the recommended pump prices to be supported. In these circumstances it can hardly be denied that Niad was enriched to the extent that it charged pump prices in excess of the recommended prices. The enrichment was unjust because it was obtained in breach of contract. It was obtained at the expense of Esso because Esso was providing price support for a lower price than that charged by Niad. I can see no reason why this remedy should be unavailable to Esso if it wishes to pursue it. Indeed it appears to me to be the most appropriate remedy in that it matches most closely the reality of the case, namely that Niad took an extra benefit to which it was not entitled. It is just that it should be made to restore it to its effective source.’

Court: ChD
Date: 01-Jan-2001
Judges: Morritt V-C
References: [2001] EWHC 6 (Ch),
Cited By:

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Filed under Damages

Evans -v- Cherry Tree Finance Ltd and Another; CA 6-Feb-2008

The defendant appealed a finding that a term in its mortgage loan agreement imposing a substantial penalty on the claimant on the redemption of a mortgage was void under the Regulations. The company said that the loan was a business loan.

Court: CA
Date: 06-Feb-2008
Statutes: Unfair Terms in Consumer Contracts Regulations 1991
Links: Bailii,
References: [2008] EWCA Civ 331,

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Filed under Consumer, Contract

Esso Petroleum Company Ltd -v- Addison and others; ComC 15-Jul-2002

The applicants were retailers of the products of the defendant. The supply agreement allowed the defendant to alter the pricing structures. They complained.
Held: The agreements were lawful and did allow Esso to alter the prices in the way they had sought to do. The court discussed the construction of a non-derogation covenant: ‘even accepting that the principle of derogation from grant is, as Lord Denning suggested, one of general application, the nature and scope of the licensee’s obligation is a matter to be determined by reference to the contract as a whole having due regard to its commercial context. Accordingly, I do not think that the doctrine has any direct application to the present case, though it is no doubt a useful reminder that in the absence of clear words, parties to a contract are unlikely to have intended to make significant derogations through the operation of a subsidiary clause from the primary benefits intended to be conferred under it.’

Court: ComC
Date: 15-Jul-2002
Judges: Moore-Bick J
Links: Bailii,
References: [2003] EWHC 1730 (Comm),
Cases Cited:
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Filed under Contract

Parks -v- Esso Petroleum Company Limited; CA 23-Jul-1999

The claimant sought to add a claim under the regulations for compensation after termination of his agency for the defendants. The lower court had rejected his claim saying that the petrol products he sold were at a price fixed by Esso, and that since he did not negotiate the price he fell outside the regulations.
Held: The word ‘negotiate’ need not include the bargaining of price, but did require more than a collection of funds after a self-service sale: ‘he took no part in the customer’s choice and self-service.’

Court: CA
Date: 23-Jul-1999
Judges: Morritt, Thorpe, Popplewell LJJ
Statutes: Commercial Agents (Council Directive) Regulations 1993
Links: Bailii,
References: [1999] EWCA Civ 1942,
Cases Cited:

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Filed under Agency, Landlord and Tenant

Parks -v- Esso Petroleum Company Limited; CA 23-Nov-1998

A renewed application for leave to appeal and for an application for leave to serve and set down out of time a notice of appeal in respect of which leave was given.

Court: CA
Date: 23-Nov-1998
Links: Bailii,
References: [1998] EWCA Civ 1820,
Cited By:

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Filed under Agency, Litigation Practice

Regina -v- Secretary of State for the Home Department ex parte Chahal; CA 27-Oct-1993

Chahal was a Sikh separatist leader who was refused asylum and whom the Secretary of State proposed to deport to India as a threat to national security here.
Held: The Home Secretary must balance the need to deport against against any threat to the deportee’s safety, but his decision was only to be challenged if it was irrational or perverse or unlawful. The court was entitled to look at the assessment made of the risks to the applicant should he be deported in order to determine whether the rejection of the asylum claim was Wednesbury unreasonable. Neill LJ concluded that ‘That the court has power to examine the grounds on which a deportation order is made even where the interests of national security are relied upon, though in practice the the court’s power of scrutiny may be limited.’

Court: CA
Date: 27-Oct-1993
Judges: Staughton LJ, Neill LJ
Statutes: Immigration Act 1971 3(5)(b)
Links: Gazette, Independent, Times,
References: [1995] 1 All ER 658,
Cases Cited:
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Filed under Administrative, Immigration

Transco Plc -v- United Utilities Water Plc; QBD 25-Oct-2005

The defendant’s employee closed off a valve, cutting off the gas supply to the claimant’s customers. The claimant incurred costs investigating and restoring the gas supply.
Held: The tort of wrongful interference with goods was made out. Physical damage included wrongful interference with goods, and that closing the valve was such interference.

Court: QBD
Date: 25-Oct-2005
Judges: Butterfield J
Links: Bailii,
References: [2005] EWHC 2784 (QB),
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Filed under Torts - Other

Chaudhri Abdul Majid -v- Jawahir Lal and Others; PC 7-Apr-1914

(Allahabad)

Court: PC
Date: 07-Apr-1914
Links: Bailii,
References: [1914] UKPC 30,

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Filed under Commonwealth

401 Watling Street – Hertsmere : Midland : Birmingham; LVT 18-Nov-2011

LVT Service Charges

Court: LVT
Date: 18-Nov-2011
Links: Bailii,
References: [2011] EWLVT CAM_LV_SVC_26UE_0

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Filed under Landlord and Tenant

Bliss -v- Hall; 17-Jan-1838

To an action of nuisance for carrying on the business of a tallow chandler, in a messuage adjoining the messuage of the Plaintiff, it is no plea that the Defendant was possessed of his messuage, and the business was carried on, before the Plaintiff became possessed of and occupied the adjoining messuage. However, a right to emit ‘noxious vapours and smells’ might be acquired by prescription

Date: 17-Jan-1838
Judges: Tindal CJ
Links: Commonlii,
References: , [1838] EngR 346, (1838) 4 Bing NC 183, (1838) 132 ER 758
Cited By:

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Filed under Land, Nuisance

Dixon -v- Kennaway & Co; 1900

Farwell J said: ‘There is no doubt on the authorities that a certificate under the seal of the company estops the company from denying the title of a person who has accepted and acted on the certificate. In Knights -v- Wiffen [LR 5 QB 660 at 665] Blackburn J defines estoppel as follows: ‘Where one states a thing to another, with a view to the other altering his position, or knowing that, as a reasonable man, he will alter his position, then the person to whom the statement is made is entitled to hold the other bound, and the matter is regulated by the state of facts imported by the statement.’. I accept that as a good definition of estoppel . . ‘ and ‘It is plain that when Blackburn J uses the phrase ‘alter his position’ he does not mean that an active alteration is necessary, but that it is sufficient if the person to whom the statement is made rests satisfied with the position taken up by him in reliance on the statement, so that he suffers loss.’

Date: 01-Jan-1900
Judges: Farwell J
References: [1900] 1 Ch 833,
Cases Cited:
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Filed under Company, Estoppel

Farley -v- Secretary of State for Work and Pensions and Another; CA 25-Jan-2005

The Respondent had sought a liability order against the appellant, the non-resident parent in respect of child support maintenance arrears. The appellant had asked the magistrates to consider whether he was liable to pay child support maintenance, but they had declined.
Held: The section prevented the magistrates enquiring as to the amount of arrears, but not as to whether child support maintenance was payable at all. If not they might be making an order for a person’s comittal to prison without that person having a proper and convenient way of challenging the assertion that he was liable. In hearing an application for a liability order, the magistrates exercised an adjudicative function requiring evidence of liability in the absence of an admission. The liability order was quashed, and the case remitted.

Court: CA
Date: 25-Jan-2005
Judges: Lord Woolf LCJ, Lord Phillips of Wothr Matravers MR, Lord Slynn of Hadley.
Statutes: Child Support Act 1991 33
Links: Bailii,
References: Times, 27-Jan-2005, [2005] EWCA Civ 778
Cases Cited:
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Filed under Child Support, Magistrates

In Re A Debtor No 638-Io-1994; ChD 3-Dec-1998

A modification to an Individual Voluntary Arrangement made under a clause of the arrangement allowing variations and which variations could have been included in the original deed was valid.

Court: ChD
Date: 03-Dec-1998
Statutes: Insolvency Act 1986 263 (4)
Links: Times,
References:

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Lewis -v- Revenue & Customs; FTTTx 9-Jul-2010

FTTTx Tax: Construction Industry Scheme – failure to lodge monthly returns – penalties – no reasonable excuse – level of penalty – Appeal allowed in part.

Court: FTTTx
Date: 09-Jul-2010
Links: Bailii,
References: [2010] UKFTT 327 (TC),

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Filed under Taxes Management

Palfrey -v- Transco Plc; EAT 15-Mar-2004

EAT Employer gave notice of redundancy to expire on 31 May; termination date brought forward to 31 March with payment in lieu in respect of balance of period. ET found application not brought within 3 months of 31 March out of time. Appeal dismissed. The agreed earlier date constituted an implied withdrawal of the earlier notice or – if necessary concluding TBA Industrial Products Ltd v Morland [1982] ICR 686 to be per incuriam (4 NIRC or EAT decisions not having been addressed) and preferring the minority judgment of Ackner LJ – a variation of that notice.

Court: EAT
Date: 15-Mar-2004
Links: Bailii,
References: [2004] UKEAT 0990_03_1503, [2004] IRLR 916

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Filed under Employment

Clementson -v- Gandy; CA 1836

Lord Langdale MR rejected an attempt to invoke the doctrine of election: ‘But parol evidence is not to be resorted to, except for the purpose of proving facts which make intelligible something in the will which, without the aid of extrinsic evidence, cannot be understood.’

Court: CA
Date: 01-Jan-1836
Judges: Lord Langdale MR
References: (1836) 1 Keen 309,
Cited By:

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Filed under Equity

Rex -v- Pearson; 1835

The prisoner was indicted for the murder of his wife. It was proved, that, in a fit of drunkenness, he had beaten her in a cruel manner with a rake-shank, and that she died of the wounds and bruises which she received. His only defence was that he was drunk.
Held: Park J said: ‘Voluntary drunkenness is no excuse for crime. If a party be made drunk by stratagem, or the fraud of another, he is not responsible. So, drunkenness may be taken into consideration to explain the probability of a party’s intention in the case of violence committed on sudden provocation . . If a party be made drunk by stratagem, or the fraud of another, he is not responsible’.

Date: 01-Jan-1835
Judges: Park J
References: (1835) 2 Lew CC 144,
Cited By:
  • Regina -v- Kingston, HL, No longer good law, (Times 22-Jul-94, Independent 22-Jul-94, Bailii, [1994] UKHL 9, [1995] 2 AC 355, [1994] 3 All ER 353, [1994] 3 WLR 519)

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Filed under Crime

In re W G; CA 1976

The mother sought to change the name of her child from that of the natural father to the surname of her new husband.
Held: Cairns LJ said: ‘it should be realised that the mere fact that there had been a divorce, that the mother had remarried and had custody of the child, and had a name different from that of the child, was not a sufficient reason for changing the child’s surname. The courts recognised the importance of maintaining a link with the father, unless he had ceased to have an interest in the child or there were some grounds–having regard to his character and behaviour–which made it undesirable for him to have access to the child at all.’

Court: CA
Date: 01-Jan-1976
Judges: Cairns LJ
References: (1976) 6 Fam Law 210,
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Filed under Children

Berkeley Peerage case; 1858

Lord St Leonards explained section 1 of the 1660 Act which removed all the ‘fruits and consequents’ of tenure in capite of the Crown: ‘Not only were all tenures in capite . . taken away, but the lands were for ever turned into free and common socage. How can the Castle and Estate of Berkeley, holden as it now is by free and common socage, and not in capite or in chief, carry with it a right in its possessor to sit in this House? It confers upon him just the same right, but no higher than the humblest cottage confers on its owner. The feudal tenure being abolished, of course the privileges annexed or flowing from it have ceased.’

Date: 01-Jan-1858
Judges: Lord St Leonards
Statutes: Abolition of Tenures Act 1660 1
References: (1858-61) 8 HLC 21,
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Filed under Land

Farley -v- Secretary of State for Work and Pensions; Admn 12-Jul-2004

The defendant and his wife were separated. The Child Support Agency assessed the contributions he was to make, and eventually pursued him in the magistrates court for arrears. The defendant argued that whilst the Act did prevent the magistrates looking at the amounts set to be payable, it was able to look at the fundamental issue of liability.
Held: The wording had been changed to refer to ‘maintenance calculation’ save in the subsection. This suggested that the words ‘maintenance assessment’ here referred to the question of liability at all as well as its calculation. The appeal failed.

Court: Admn
Date: 12-Jul-2004
Judges: Keith J
Statutes: Child Support Act 1991 31 33(4)
Links: Bailii,
References: [2004] EWHC 1655 (Admin), Times, 23-Jul-2004
Cases Cited:
  • , , Appealed to,

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Smith -v- Kenrick; CCP 1849

Where there are two minings working adjacent land, each has the right to work his own mine, and to construct shafts in his own mine in whatever way he thinks fit, and even if this results naturally in damage to the neighbour’s mine, provided he is neither malicious nor negligent. Water had flowed from the defendant’s mine into the plaintiff’s mine. The defendant had merely dug holes in the ordinary course of mining and the water flowed into the other mine by gravitation. He was not liable. Cresswell J said: ‘it would seem to be the natural right of each of the owners of two adjoining coal-mines . . to work his own in the manner most convenient and beneficial to himself, although the natural consequence may be that some prejudice will accrue to the owner of the adjoining mine, so long as that does not arise from the neglect or malicious conduct of the party.’

Court: CCP
Date: 01-Jan-1849
Judges: Cresswell J
References: [1849] 7 CB 515, [1849] LJCP 172, [1849] 12 LTOS 556, [1849] 13 Jur 362, [1849] 137 ER 205
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Filed under Nuisance

Rushmer -v- Polsue & Alfieri Limited; CA 1906

The court considered the question of whether excess noise could constitute a nuisance.
Held: The court rejected the argument that a resident of a district specially devoted to a particular trade cannot complained of nuisance by noise caused by the carrying on of a branch of that trade short of proving carelessness and unreasonable use. However, a resident in a noisy district must put up with a certain amount of noise, and the standard of ordinary comfort will differ according to the situation of the property and the class of people who inhabit it. The approach is therefore whether ‘the addition of a fresh noise caused by the defendant’s works may be so substantial as to create a legal nuisance’.
Cozens-Hardy LJ said: ‘I think the addition of a fresh noise caused by the defendant’s works may be so substantial as to create a legal nuisance. It does not follow that because I live, say, in the manufacturing part of Sheffield I cannot complain if a steam-hammer is introduced next door, and so worked as to render sleep at night almost impossible, although previously to its introduction my house was a reasonably comfortable abode, having regard to the local standard; and it would be no answer to say that the steam-hammer is of the most modern approved pattern and is reasonably worked. In short, if a substantial addition is found as a fact in any particular case, it is no answer to say that the neighbourhood is noisy, and that the defendant’s machinery is of first-class character.’ and ‘A resident in such a neighbourhood must put up with a certain amount of noise. The standard of comfort differs according to the situation of the property and the class of people who inhabit it.’

Court: CA
Date: 01-Jan-1906
Judges: Cozens-Hardy LJ
References: [1906] Ch D 234,
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Filed under Nuisance

Vilvarajah and Others -v- The United Kingdom; ECHR 30-Oct-1991

Five Tamils were refused asylum in the UK and returned to Sri Lanka but then continued to suffer ill-treatment. Their complaints to Strasbourg were rejected under both Articles 3 and 13, but with regard to Article 3, it held: ‘108. The court’s examination of the existence of a risk of ill-treatment in breach of Article 3 at the relevant time must necessarily be a rigorous one in view of the absolute character of this provision and the fact that it enshrines one of the fundamental values of a democratic society making up the Council of Europe.’ As to Article 13 the court concluded: ‘125. It is not in dispute that the English courts are able in asylum cases to review the Secretary of State’s refusal to grant asylum with reference to the same principles of judicial review as considered in the Soering case and to quash a decision in similar circumstances and that they have done so in decided cases. Indeed the courts have stressed their special responsibility to subject administrative decisions in this area to the most anxious scrutiny where an applicant’s life or liberty may be at risk. Moreover, the practice is that an asylum seeker will not be removed from the U.K. until proceedings are complete once he has obtained leave to apply for judicial review. 126. While it is true that there are limitations on the powers of the courts in judicial review proceedings the Court is of the opinion that these powers, exercisable as they are by the highest tribunals in the land, do provide an effective degree of control over the decisions of the administrative authorities in asylum cases and are sufficient to satisfy the requirements of Article 13.’
ECHR Judgment (Merits) – No violation of Art. 3; No violation of Art. 13.

Court: ECHR
Date: 30-Oct-1991
Statutes: European Convention on Human Rights
Links: Bailii, ECHR, Bailii,
References: 13163/87, 13164/87, (1991) 14 EHRR 248, [1991] ECHR 47, 13165/87
Cases Cited:
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Filed under Human Rights, Immigration

Slack -v- Leeds Industrial Co-operative Society Ltd; CA 1924

Nothing in Colls served to undermine the ‘good working rule’ of A L Smith LJ in Shelfer, although they discharged a quia timet injunction and ordered an inquiry as to damages

Court: CA
Date: 01-Jan-1924
Judges: Sir Ernest Pollock MR, and Warrington and Sargant LJJ
References: [1924] 2 Ch 475,
Cases Cited:
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Filed under Damages, Land, Litigation Practice

London, Brighton and South Coast Railway Co -v- Truman; 1885

Lord Halsbury LC described the idea that it was a defence to nuisance to say that the plaintiff came to it as an ‘old notion . . long since exploded’

Date: 01-Jan-1885
References: (1885) LR 11 App Cas 45,
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Filed under Nuisance

Karen Millen Fashions Ltd -v- Dunnes Stores; ECJ 19-Jun-2014

ECJ Regulation (EC) No 6/2002 – Community design – Article 6 – Individual character – Different overall impression – Article 85(2) – Unregistered Community design – Validity – Conditions – Burden of proof

Court: ECJ
Date: 19-Jun-2014
Judges: . Silva de Lapuerta (Rapporteur), P
Statutes: Regulation (EC) No 6/2002
Links: Bailii,
References: [2014] EUECJ C-345/13, [2014] WLR(D) 273
Cases Cited:

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Filed under European, Intellectual Property

Coventry (T/A RDC Promotions and Another -v- Lawrence and Others; CA 27-Feb-2012

The appellants, owners of a motor sport racing circuit, appealed against a finding that their activities constituted a nuisance, given that they had planning permissions for the use.
Held: The appeal succeeded. The judge had erred in holding that the actual use of the Stadium and the Track over a number of years, with planning permission, or a CLEUD, could not be taken into account when the assessing the character of the locality for the purpose of determining whether an activity is a nuisance.
Lewison LJ expressed a provisional obiter view that, contrary to the judge’s conclusion, it is possible to obtain by prescription a right to commit what would otherwise be a nuisance.

Court: CA
Date: 27-Feb-2012
Judges: Mummery, Jackson, Lewison LJJ
Statutes: Town and Country Planning Act 1990 171B
Links: Bailii, WLRD,
References: [2012] EWCA Civ 26, [2012] Env LR 28, [2012] 1 WLR 2127, [2012] 3 All ER 168, [2012] WLR(D) 49, 141 Con LR 79, [2012] 1 EGLR 165, [2012] 10 EG 88, [2012] PTSR 1505
Cases Cited:
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Filed under Nuisance, Planning

Secretary of State for the Home Department -v- JN; CA 14-May-2008

The Secretary of State appealed against a declaration that paragraph 3(2)(b) of Part 2 of Schedule 3 to the 2004 Act was incompatible with Article 3. The clause was said to restrict the Home Secretary from considering anything beyond the country guidance applicable to the case when deciding whether to order the failed asylum applicant’s return. The applicant said that if returned to Greece his human rights concerns at being then returned to Afghanistan would not be considered.
Held: The Secretary’s appeal succeeded. The clause was not an absolute bar to consideration of other matters and evidence. However ‘I will not leave the case without making clear my view that the list system renders the United Kingdom’s compliance with ECHR Article 3 fragile. In the absence of individual examinations of the merits of individual cases by those responsible for specific executive and judicial decisions in those cases, the whole weight of compliance falls on the measures and systems in place for monitoring law and practice in the listed States, and does so in circumstances where government has no discretion to take a State off the list, but must seek main legislation. ‘

Court: CA
Date: 14-May-2008
Judges: Sir Anthony Clarke Master of the Rolls, Lord Justice Laws and Lord Justice Carnwath
Statutes: Asylum and Immigration (Treatment of Claimants etc) Act 2004, European Convention on Human Rights 3, Council Regulation (EC) No 343/2003, the Dublin II Regulations
Links: Bailii,
References: [2008] EWCA Civ 464, Times, 20-May-2008, [2008] INLR 668, [2008] UKHRR 863, [2008] 3 WLR 1386, [2009] 1 All ER 116
Cases Cited:
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Filed under Human Rights, Immigration

Nasseri -v- Secretary of State for the Home Department; Admn 2-Jul-2007

The applicant had sought and been refused asylum. He was found to have come via Greece, and steps were put in place to return him there. He now complained that the provision which allowed no discretion to the respondent to look at his case when the third party country was listed as safe was in breach of his human rights.
Held: A declaration of incompatibility was granted. Counsel for the respondent argued that a declaration could only be granted where a country had been left on the list of ‘safe’ countries when it should be removed. This was mistaken. The deeming provision operated to prevent investigation of a potential breach. This was not merely a denial of a remedy; it directed the respondent not to comply with his obligations under article 3: ‘Failure to conduct an adequate investigation of the risks of loss of life or torture or inhuman and degrading treatment is a breach of the substantive article and it is that investigation that the deeming provision impedes.’

Court: Admn
Date: 02-Jul-2007
Judges: McCombe J
Statutes: Asylum and Immigration (Treatment of Claimants etc) Act 2004 Sch 3
Links: Bailii,
References: [2007] EWHC 1548 (Admin), Times, 03-Aug-2007, [2008] 1 All ER 411, [2008] 2 WLR 523, [2007] HRLR 36, [2007] UKHRR 1008
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Filed under Human Rights, Immigration

St Helens Smelting Co -v- Tipping; HL 1865

The defendant built a factory, from which the escaping chemical fumes damaged local trees.
Held: The defendant was liable even though the smelting was an ordinary business carried on properly, and even though the district surrounding was generally affected by similar factories. The defendant had acquired no right by prescription. It was necessary to distinguish nuisances damaging land, and those alleging personal injury or discomfort. In the latter case the character of the neighbourhood is relevant, but not in the former.
There is no right to discharge such fumes over neighbouring land: ‘My Lords, in matters of this description it appears to me that it is a very desirable thing to mark the difference between an action brought for a nuisance upon the ground that the alleged nuisance produces material injury to the property, and an action brought for a nuisance on the ground that the thing alleged to be a nuisance is productive of sensible personal discomfort. With regard to the latter, namely the personal inconvenience and interference with one’s enjoyment, one’s quiet, one’s personal freedom, anything that discomposes or injuriously affects the senses or the nerves, whether that may or may not be denominated a nuisance, must undoubtedly depend greatly on the circumstances of the place where the thing complained of actually occurs. If a man lives in a town, it is necessary that he should subject himself to the consequences of those operations of trade which may be carried on in his immediate locality, which are actually necessary for trade and commerce, and also for the enjoyment of property, and for the benefit of the inhabitants of the town and of the public at large. If a man lives in a street where there are numerous shops, and a shop is opened next door to him, which is carried on in a fair and reasonable way, he has no ground for complaint, because to himself individually there may arise much discomfort from the trade carried on in that shop. But when an occupation is carried on by one person in the neighbourhood of another, and the result of that trade, or occupation, or business, is a material injury to property, then there unquestionably arises a very different consideration. I think, my Lords, that in a case of that description, the submission which is required from persons living in society to that amount of discomfort which may be necessary for the legitimate and free exercise of the trade of their neighbours, would not apply in circumstances the immediate result of which is sensible injury to the value of the property.’

Court: HL
Date: 01-Jan-1865
Judges: Wenlseydale, Westbury LL
Links: Bailii,
References: [1865] 11 HL Cas 642, [1865] UKHL J81, 11 ER 1483
Cases Cited:
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Filed under Nuisance

Tse Wai Chun Paul -v- Albert Cheng; 13-Nov-2000

(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or hearer should be in a position to judge for himself how far the comment was well founded’ and
‘The purpose for which the defence of fair comment exists is to facilitate freedom of expression by commenting upon matters of public interest. This accords with the constitutional guarantee of freedom of expression. And it is in the public interest that everyone should be free to express his own, honestly held views on such matters, subject always to the safeguards provided by the objective limits mentioned above. These safeguards ensure that defamatory comments can be seen for what they are, namely, comments as distinct from statements of fact. They also ensure that those reading the comments have the material enabling them to make up their own minds on whether they agree or disagree’.
The defence of honest comment is available even if the comment was made with intent to injure, as where a politician seeks to damage his political opponent.
The comment must be on a matter of public interest, recognisable as comment, be based on true or privileged facts, indicate the facts on which the comment is based, and ‘must be one which could have been made by an honest person, however prejudiced he might be, and however exaggerated or obstinate his views.’

Date: 13-Nov-2000
Judges: Chief Justice Li, Mr Justice Bokhary PJ, Mr Justice Ribeiro PJ, Sir Denys Roberts NPJ and Lord Nicholls of Birkenhead NPJ
Links: hklii,
References: [2001] EMLR 777, [2000] 3 HKLRD 418, [2000] HKCFA 35
Cases Cited:
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Filed under Commonwealth, Constitutional, Defamation, Human Rights

Saadi -v- United Kingdom; ECHR 29-Jan-2008

The applicant sought judicial review of the decision to detain him for a short period while his asylum claim was being subject to fast-track processing. The decision was made pursuant to a policy under which all asylum claimants falling within defined criteria (usually by nationality) were normally detained at Oakington while their claims were determined in an accelerated process. The Grand Chamber examined the concept of arbitrary detention in the context of the first limb of article 5(1)(f) authorising a detention to prevent the person making an unauthorised entry to the country. The Chamber directed itself to the restrictions permitted by the various sub-paragraphs of article 5(1), saying that it is fundamental that no arbitrary detention can be compatible with article 5(1) and that the notion of ‘arbitrariness’ extends beyond lack of conformity with national law. The notion of arbitrariness in the context of this article varies to a certain extent depending on the type of detention involved. To avoid being branded as arbitrary, such detention must be carried out in good faith and its length should not exceed that reasonably required for the purpose pursued.

Court: ECHR
Date: 29-Jan-2008
Statutes: European Convention on Human Rights 5(1)(f)
Links: Bailii,
References: [2008] ECHR 80, 13229/03, (2008) 47 EHRR 17
Cases Cited:
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Filed under Human Rights

Macquarie Internationale Investments Ltd -v- Glencore (UK) Ltd; Comc 21-Jul-2008

The second defendants sought summary dismissal of claims brought against them for alleged breach of a company share purchase agreement.

Court: Comc
Date: 21-Jul-2008
Judges: Walker J
Links: Bailii,
References: [2008] EWHC 1716 (Comm),

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Filed under Company

ZT (Kosovo) -v- Secretary of State for the Home Department; CA 24-Jan-2008

ZT applied for asylum. It was refused. On her appeal, the respondent certified that the claim was manifestly unfounded. She sought judicial review.
Held: The procedure laid down by rule 353 should have been applied to the further submissions made by ZT. Had that procedure been applied the Secretary of State might have come to a different decision. Accordingly her decision fell to be quashed so that she could consider ZT’s renewed application according to rule 353. Buxton LJ agreed with this result but, for his part, said that he would assume that the process engaged rule 353.

Court: CA
Date: 24-Jan-2008
Links: Bailii,
References: [2008] EWCA Civ 14,
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Filed under Human Rights, Immigration

Condliffe -v- Hislop and Another; CA 3-Nov-1995

The plaintiff, a bankrupt, pursued libel proceedings. He was being financed by his mother who had limited resources. She undertook to pay any order for costs, but the Master ordered a stay under the inherent jurisdiction of the court to prevent abuse of process unless the plaintiff provided security. The plaintiff appealed and the mother withdrew her undertaking. The judge reversed the order, holding that, even if there were jurisdiction, he would have exercised it in the plaintiff’s favour. The Court disposed of the case shortly on the facts on the basis that the mother’s position was one long since recognised as a lawful justification to maintain, sharing as she did a common interest with the plaintiff on the grounds of kinship. Security for costs orders are strictly limited to circumstances within rules, and no order for security for costs was appropriate, despite support for the action by a relative.

Court: CA
Date: 03-Nov-1995
Statutes: Rules of the Supreme Court Order 23
Links: Independent, Times,
References: [1996] 1 WLR 753,
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Filed under Litigation Practice

Dietmann -v- Brent London Borough Council; CA 1987

An enquiry into the death of Jasmine Beckford had led to the two social workers being peremptorily dismissed. The report had accused them on not intervening effectively. Each had been involved in her care, and each brought claims of unfair dismissal. They appealed saying that the tribunal should not have head their cases together. They said that the answers of one given in cross examination might be prejudicial to the other. They now appealed against the EAT rejection of that objection.
Held: The appeal failed. The question was on for the discretion of the tribunal chairman by virtue of regulation 15. An exercise of that discretion could only be disturbed if it could be shown tp be unreasonable in that he or she had either taken some irrelevant consideration into account, or had failed to take a relevant consideration into account, or had oherwise acted perversley. A joint hearing need not lead to unfairness or prejudice, and justice would be seen to be done if the cases were held together, allowing the appropriate apportionment of blame
Sir John Donaldson MR said that it was clearly in the interests of everyone that the two cases should be heard together.
Balcombe LJ, giving the leading judgment in this court adopted Hodgson J’s comment in the court below in relation to the local authority’s submission that no disciplinary meeting was necessary where the charge was one of gross misconduct.

Court: CA
Date: 01-Jan-1987
Judges: Sir John Donaldson MR, Balcombe LJ
Statutes: Industrial Tribunal (Rules of Procedure) Regulations 1985 15 18.1
References: [1987] IRLR 146, [1988] ICR 842
Cases Cited:

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Filed under Employment

Southern Housing Group Ltd and Another, Re Ada Lewis House & Princess of Wales Court; UTLC 15-Jul-2010

UTLC LANDLORD AND TENANT – service charges – whether charges payable under leases within definition – whether amount payable might vary according to cost of providing services – held that charges were within definition – appeals dismissed – Landlord and Tenant Act 1985, s 18(1)

Court: UTLC
Date: 15-Jul-2010
Links: Bailii,
References: [2010] UKUT 237 (LC), [2011] L & TR 7

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Filed under Landlord and Tenant

Kine -v- Jolly; CA 1905

The court refused an injunction in respect of an infringement of the right to light to a dwelling house, restricting the plaintiff to a remedy in damages. Cozens-Hardy LJ: ‘I think it is impossible to doubt that the tendency of the speeches in the House of Lords in Colls v. Home Electric Stores Ltd, is to go a little further than was done in Shelfer v. City of London Electric Lighting Co., and to indicate that as a general rule the Court ought to be less free in granting mandatory injunctions than it was in years gone by.’

Court: CA
Date: 01-Jan-1905
Judges: Cozens-Hardy LJ, Vaughan Williams LJ, Romer LJ
References: [1905] 1 Ch 480,
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Filed under Land, Litigation Practice

Farley -v- Secretary of State for Work and Pensions (No 2); CA 22-Jun-2005

The Court of Apeal had previously considered an appeal from the grant of a liability order made by magistrates. It had become clear that the order had been made without jurisdiction.
Held: The order must be set aside. The court had no jurisdiction to hear an appeal from the High Court hearing an appeal by way of case stated. Nevertheless, the issue had been an appropriate issue for the court. The appellant could apply for judicial review, the CA could sit as a court of first instance and reject that request, then the appeallant could appeal that and the Court of Appeal could then re-instate the order. Accepting limited undertakings for the lodging of documents, the court so acted.

Court: CA
Date: 22-Jun-2005
Judges: Lord Woolf LCJ, Lord Phillips of Worth Matravers MR
Statutes: Child Support Act 1991
Links: Bailii,
References: Times, 30-Jun-2005, [2005] EWCA Civ 869
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Filed under Child Support, Litigation Practice

Solida Raiffeisen Immobilien Leasing GmbH and Tech Gate Vienna Wissenschafts- und Technologiepark GmbH -v- Finanzlandesdirektion fur Wien, Niederosterreich und Burgenland; ECJ 17-Oct-2002

ECJ Reference for a preliminary ruling: Verwaltungsgerichtshof – Austria. Directive 69/335/EEC – Indirect taxes on the raising of capital – Capital duty – Contribution of assets of any kind – Meaning – Acquisition by a non-member of dividend certificates issued by a capital company.

Court: ECJ
Date: 17-Oct-2002
Statutes: Directive 69/335/EEC
Links: Bailii,
References: C-138/00, [2002] EUECJ C-138/00

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Filed under European, Taxes - Other

Irvine -v- Kirkpatrick; HL 1850

Before a misrepresentation may be of any avail whatever, it must inure to the date of the contract. If the other party discovers the truth before he signs the contract, ‘the misrepresentation and the concealment go for just absolutely nothing’.

Court: HL
Date: 01-Jan-1850
Judges: Lord Brougham
References: (1850) 7 Bell App (HL) 186,

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Filed under Contract, Torts - Other

Macquarie Generation -v- Peabody Resources Ltd; 14-Dec-2000

Beazley JA concluded: ‘Thus, it is not relevant for the Court to determine whether, if the true position had been known, the representee would or would not have altered his position in relation to the contract. ‘It is enough if a full and exact revelation of the material facts might have prevented him from doing so.” and ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’.
Mason P noted that: ‘[r]escission for misrepresentation in relation to a carefully negotiated written contract requires close examination of the alleged misrepresentation and its impact upon the representee at the time of contract’

Date: 14-Dec-2000
Judges: Beazley JA, Mason P
References: [2000] NSWCA 361, [2001] Aust Contract Reports 90-121

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Filed under Commonwealth, Contract, Torts - Other

Munro -v- Southern Dairies; 18-Apr-1955

Nuisance – Horses kept on dairy premises without proper stabling – Interference with use and enjoyment of neighbouring premises – Loss of sleep by neighbouring occupier as a result thereof – Whether reasonable’ use of the premises or public benefit are defences – Whether a trade essential to the locality can be complained of – Extent to which evidence of economic necessity for delivery of milk by horse – drawn vehicles is relevant – Jurisdiction to refuse injunction – on undertaking by defendant to erect proper stables.
Sholl J said: ‘If a man chooses to make his home in the heart of a coalfield or in a manufacturing district, he can expect no more freedom from the discomfort usually associated with such a place than any other resident can.’ but granted an injunction: ‘To restrain the defendant, by its directors, servants and agents, from causing or permitting on the premises at Grenville Street and Whylis Street, Hampton, on which it now conducts its business, any nuisance (whether by way of smell, noise or flies . . )’

Date: 18-Apr-1955
Judges: Sholl J
Links: Austlii,
References: [1955] VLR 332, [1955] ALR 793, [1955] VicLawRp 60
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Filed under Commonwealth, Nuisance

Polsue & Alfieri -v- Rushmer; HL 1907

The House approved a decision that a person purchasing property in an industrial district may be unable to claim for noise nuisance. Lord Loreburn LC said that (i) whether an activity gives rise to a nuisance may depend on the character of the particular locality, (ii) the trial judge rightly directed himself as to the law, and (iii) there was no reason to think that he had not applied his own directions to the facts of the case.

Court: HL
Date: 01-Jan-1907
Judges: Lord Loreburn LC
References: [1907] AC 121,
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Filed under Nuisance

Regina (ZL and VL) -v- Secretary of State for the Home Department and Lord Chancellors Department; CA 24-Jan-2003

The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought into effect before the Act had been formally published.
Held: An Act took effect on Royal assent irrespective of publication, but that rule was not echoed in Human Rights law. Could the respondent give effect to the section before publication? Here the applicant retained a right to apply for judicial review to argue that the absence of publication had caused prejudice. The courts were themselves well placed to judge the issues. The courts should look carefully at the individual circumstances of the case, as well as the fact that certain countries were listed as safe. The fast track procedure was capable of protecting the rights of applicants.
‘If on at least one legitimate view of the facts or the law the claim may succeed, the claim will not be clearly unfounded’- The test of whether a claim is ‘clearly unfounded’ is a black and white test. The result cannot, for instance, depend upon whether the burden of proof is on the claimant or the Secretary of State, albeit that section 94 makes express provision in relation to the burden of proof.

Court: CA
Date: 24-Jan-2003
Judges: Lord Justice Waller, Lord Justice Sedley, Lord Phillips MR
Statutes: Nationality and Asylum Act 2002 115, European Convention on Human Rights
Links: Bailii,
References: [2003] 1 WLR 1230, Times, 30-Jan-2003, [2003] EWCA Civ 25, Gazette, 20-Mar-2003, [2003] 1 All ER 1062, [2003] Imm AR 330, [2003] INLR 224
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Filed under Constitutional, Human Rights, Immigration

Crump -v- Lambert; CA 1867

Lord Romilly MR considered the acquisition of a right to commit a nuisance by prescription.
Held: An injunction was granted to restrain the issue of smoke and noise. He said: ‘It is true that, by lapse of time, if the owner of the adjoining tenement, which, in case of light or water, is usually called the servient tenement, has not resisted for a period of twenty years, then the owner of the dominant tenement has acquired the right of discharging the gases or fluid, or sending smoke or noise from his tenement over the tenement of his neighbour; but until that time has elapsed, the owner of the adjoining or neighbouring tenement, whether he has or has not previously occupied it, – in other words, whether he comes to the nuisance or the nuisance comes to him, – retains the right to have the air that passes over his land pure and unpolluted, and the soil and produce of it uninjured by the passage of gases, by the deposit of deleterious substances, or by the flow of water.’

Court: CA
Date: 01-Jan-1867
Judges: Lord Romilly MR
References: (1867) LR 3 Eq 409,
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Filed under Nuisance

Jones -v- Dumbrell; 21-Feb-1968

(Supreme Court of Victoria) Dumbrell had induced shareholders in companies running a business to sell their shares to him. He represented that he would run the business himself. The shareholders had a strong preference to have Dumbrell, rather than an unknown third party, run the business and for that reason sold their shares at an under value. The defendant decided to sell the shares to outsiders rather than run the business himself. The representation was not proved to be false when made.
Held: Smith J said: ‘When a man makes a representation with the object of inducing another to enter into a contract with him, that other will ordinarily understand the word representor, by his conduct in continuing the negotiations in concluding the contract, to be asserting, throughout, that the facts remain as they were initially represented to be. And the representor will ordinarily be well aware that his representation is still operating in this way, or at least will continue to desire that it shall do so. Commonly, therefore, an inducing representation is a ‘continuing’ representation, in reality and not merely by construction of law.’ and ‘I accept, with respect, the statement by Cussen, J. In Dalgety and Co Ltd v Australian Mutual Provident Society [1908] VicLawRp 70; [1908] VLR 481, at p. 506, that ‘the rule is that prima facie (the representation) is to be taken as continuing up till the moment when the contract is completed’. But this, I think, merely lays down a presumption of fact, justified by ordinary human experience, leaving the matter to the court for determination as a question of fact on the whole of the evidence.’

Date: 21-Feb-1968
Judges: Smith J
Links: Austii,
References: [1981] VR 199, 5 ACLR 417, [1981] VicRp 21
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Filed under Commonwealth, Torts - Other

Fleming -v- Hislop; HL 1886

Lord Halsbury LC said that ‘whether the man went to the nuisance or the nuisance came to the man, the rights are the same’

Court: HL
Date: 01-Jan-1886
Judges: Lord Halsbury LC
References: (1886) LR 11 App Cas 686,
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Filed under Nuisance

Nasseri -v- The United Kingdom; ECHR 23-Sep-2013

Questions set for the parties

Court: ECHR
Date: 23-Sep-2013
Statutes: European Convention on Human Rights, Asylum and Immigration (Treatment of Claimants, etc.) Act 2004 Sch 3 3(2)(b)
Links: Bailii,
References: 24239/09 - Communicated Case, [2013] ECHR 967
Cases Cited:

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Filed under Human Rights

Regan -v- Paul Properties Ltd and others; CA 26-Oct-2006

The court considered the appropriate remedy after a finding of infringement of a right to light, and in particular: ‘whether the proper remedy for infringement in this case is damages for nuisance, as ordered by the court below, or whether a mandatory injunction should be granted requiring part of a building in the course of construction to be pulled down. ‘
The court rejected the trial judge’s view that, where the defendant’s building interfered with the claimant’s right to light, the onus was on the claimant to show that damages were not an adequate remedy.

Court: CA
Date: 26-Oct-2006
Judges: Mummery, Tuckey, Wilson LJJ
Links: Bailii,
References: [2007] Ch 135, [2006] EWCA Civ 1391, [2007] 4 All ER 48
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Filed under Land, Litigation Practice, Nuisance

MSS -v- Belgium And Greece; ECHR 21-Jan-2011

Grand Chamber – The applicant alleged that his expulsion by the Belgian authorities had violated Articles 2 and 3 of the Convention and that he had been subjected in Greece to treatment prohibited by Article 3; he also complained of the lack of a remedy under Article 13 of the Convention that would enable him to have his complaints examined. ECtHR noted UNHCR’s claim (in a letter to the Belgian government in April 2009) that the Fourth Section in KRS had apparently overlooked some of the criticisms that it had made of Greece. No reference had been made to whether conditions of reception conformed to regional and international standards of human rights protection or whether asylum seekers had access to fair consideration of their asylum applications or if they were able to exercise their rights under the Geneva Convention. The Grand Chamber reviewed the numerous reports and materials that had been generated about the situation in Greece since the KRS decision. It observed that these all agreed about the deficiencies of the asylum procedure in Greece. The court therefore concluded that the situation in Greece was known to the Belgian authorities; that seeking assurances from the Greek government that the applicant faced no risk of treatment contrary to ECHR was not sufficient to ensure adequate protection against the risk where reliable sources had reported practices that were tolerated by the authorities and which were manifestly contrary to the principles of the Convention; and that the Aliens Office of the Belgian government ‘systematically applied the Dublin Regulation . . without so much as considering the possibility of making an exception’
Held: There had been a violation by Belgium of article 3 of EHCR because by sending the applicant back to Greece, the Belgian authorities exposed him to detention and living conditions there which were in breach of that article.

Court: ECHR
Date: 21-Jan-2011
Judges: Jean-Paul Costa, P
Statutes: European Convention on Human Rights 3
Links: Bailii, Bailii,
References: 30696/09, [2011] ECHR 108, [2011] ECHR 748, 31 BHRC 313, [2011] INLR 533, (2011) 53 EHRR 2
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Filed under Human Rights, Immigration

EM, Regina (on The Application of) -v- Secretary of State for The Home Department; Admn 18-Nov-2011

The court considered whether it was safe to return the applicant to Italy, and said: ‘a system which will, if it operates as it usually does, provide the required standard protection for the asylum seeker will not be found to be deficient because of aberrations.’

Court: Admn
Date: 18-Nov-2011
Judges: Kenneth Parker J
Statutes: Nationality, Immigration and Asylum Act 2002
Links: Bailii,
References: [2011] EWHC 3012 (Admin),
Cases Cited:
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Dietmann -v- London Borough of Brent; Wahlstron -v- Same; EAT 1987

Two social workers had been peremptorily dismissed after adverse findings against them in an enquiry into the death of Jasmine Beckford. They appealed saying that they should have been allowed a disciplinary hearing. They objected also to the hearing of both cases together.
Held: In answer to the suggestion that in a case of serious misconduct no disciplinary hearing may be necessary, Hodgson J said: ‘Such a construction would mean that the more serious the offence . . the less procedural protection the employee charged with misconduct would have’.
Mr Justice Hodgson also discussed a conflict of view which between various eminent judges as to whether it is right to say that a wrongful dismissal must be accepted to become effective. He concluded that the ‘acceptance view’ is the correct view and that in a proper case, the court can, where there has been a wrongful dismissal, prevent, by injunction, the implementation of that dismissal until, for instance, the proper procedures laid down in the contract have been followed.
Arepudiation by one party to an employment contract must be accepted by the innocent party to be deemed effective.

Court: EAT
Date: 01-Jan-1987
Judges: Hodgson J
Statutes: Industrial Tribunal (Rules of Procedure) Regulations 1985 15 18.1
References: [1987] IRLR 259, -1987] ICR 387
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Filed under Employment

The Lyttelton Times Company Limited -v- Warners Limited; PC 31-Jul-1907

(New Zealand) Premises had been leased for use as a printing house, including printing plant and machinery, and the landlords occupied the upper floors for use as bedrooms for their hotel. The landlords then sought an njunction and damages in respect of the noise and vibration caused by the printing business.
Held: While the plaintiffs might have the intention of having reasonably quiet bedrooms, the defendant’s intention was that they should be able to print. The lessor had impliedly reserved the right to use the ground floor as a printing works, notwithstanding the noise generated by that use. A right to emit noise can amount to an easement.

Court: PC
Date: 31-Jul-1907
Judges: Lord Loreburn LC
Links: Bailii,
References: [1907] UKPC 47, [1907] AC 476, [1904-07] All ER 200
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Filed under Commonwealth, Land

Regina -v- Secretary of State for Department (ex parte Adan) and Regina -v- Secretary of State for Home Department (ex parte Subaskaran) etc; CA 23-Jul-1999

Where a country was a signatory to the Convention, but chose to interpret it so as not to give the same protection against oppression by non-state agents which would be given here, the Home Secretary was wrong to certify such countries, in this case France and Germany, as safe countries in which the asylum seekers should first have made their applications.

Court: CA
Date: 23-Jul-1999
Judges: Lord Woolf MR, Laws, Mance LJJ
Statutes: Convention and Protocol relating to the Status of Refugees 1951
Links: Gazette, Times, Bailii,
References: [1999] EWCA Civ 1948, [1999] 4 All ER 774, [1999] COD 480, [1999] Imm AR 521, [1999] 3 WLR 1274, [1999] INLR 362
Cases Cited:
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Miller -v- Jackson; CA 6-Apr-1977

The activities of a long established cricket club were adjudged to be a nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of cricket balls landing in their gardens. The defendant appealed.
Held: A factor to be taken into account was that the plaintiffs had purchased their properties knowing of the club. That could constitute the exceptional circumstances allowing the court to use its discretion not to award an injunction.
Lord Denning MR, dissenting, said: ‘In summertime village cricket is the delight of everyone. Nearly every village has its own cricket field where the young men play and the old men watch. In the village of Lintz in County Durham they have their own ground, where they have played these last 70 years. They tend it well. The wicket area is well rolled and mown. The outfield is kept short . . [y]et now after these 70 years a judge of the High Court has ordered that they must not play there anymore . . [h]e has done it at the instance of a newcomer who is no lover of cricket.
This newcomer has built . . a house on the edge of the cricket ground which four years ago was a field where cattle grazed. The animals did not mind the cricket.’ If the injunction were upheld, cricket would cease in the village and ‘the young men will turn to other things . .’ The public interest in the playing of cricket should prevail over the individual interests of the householders, and, instead of the injunction, he awarded £400 for past and future inconvenience. He went on to answer with a resounding no his own rhetorical (in both senses of the word) question whether this was ‘all to be rendered useless to them by the thoughtless and selfish act of an estate developer in building right up to the edge of it?’
Geoffrey Lane LJ (with whom Cumming-Bruce LJ agreed) concluded that the claim in nuisance was made out. He accepted, albeit with some regret, that it was not for the Court of Appeal ‘to alter a rule which has stood for so long’, namely ‘that it is no answer to a claim in nuisance for the defendant to show that the plaintiff brought the trouble on his own head by building or coming to live in a house so close to the defendant’s premises that he would inevitably be affected by the defendant’s activities, where no one had been affected previously’

Court: CA
Date: 06-Apr-1977
Judges: Geoffrey Lane, Cumming Bruce LJJ, Denning MR
Statutes: Chancery Amendment Act 1858 (Lord Cairns' Act)
Links: Bailii,
References: [1977] 1 QB 966, [1977] 3 All ER 338, [1977] EWCA Civ 6
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Filed under Land, Nuisance

Marleasing SA -v- La Comercial Internacional de Alimentacion SA; ECJ 13-Nov-1990

LMA Oviedo sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC Directive designed to protect companies and third parties from the adverse effects of the doctrine of nullity. The Directive should have been implemented in 1986 but the Spanish authorities had failed to implement the Directive. The Spanish judge sought a ruling under Art.177[Art.234]EC as to whether the (non-implemented) Directive was directly effective.
Held: ECJ ruled (ruling is usually applied in the case of unimplemented directives in preference to Von Colson).

  • Upholding Marshall decision that a Directive cannot impose obligations on private parties (no HDE).
  • Re-affirmed the position in Van Colson and Harz “that national courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive” whilst “having regard to the usual methods of interpretation in its legal system, give precedence to the method which enables it to construe the national provision concerned in a manner consistent with the directive.”
  • Adding, that this obligation applied, whether the national provisions in question were adopted before or after the Directive was issued.
  • National courts are “required” to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved.
    Europa The Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by it and thereby comply with the third paragraph of Article 189 of the Treaty,
    A national court hearing a case which falls within the scope of Directive 68/151 on the coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, is required to interpret its national law in the light of the purpose and the wording of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive. Those grounds must themselves be strictly interpreted, in the light of that purpose, so as to ensure that nullity on the ground that the objects of the company are unlawful or contrary to public policy must be understood as referring exclusively to the objects of the company as described in the instrument of incorporation or the articles of association.
    “in applying national law, whether the provisions in questions were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and purpose of the directive in order to achieve the result pursued by the latter . . “
  • Court: ECJ
    Date: 13-Nov-1990
    Statutes: EEC Treaty 5 189, Directive 68/151, Council Directive 68/151 A-11
    Links: Bailii,
    References: (1992) 1 CMLR 305, C-106/89, [1990] ECR I-4135, [1990] EUECJ C-106/89, [1990] 1 ECR 3313
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    Filed under Company, Constitutional, European

    Transco Plc -v- Her Majestys Advocates; HCJ 16-Sep-2004

    A dwellinghouse had exploded, killing the occupants. The defendant was to be tried for alleged breaches of the 1974 Act in the gas supoplies to the house. The appellant complained that a jury trial would be an infringement of its rights, since a jury asked to sit for three to six months would be prejudiced against it, and be unable to deliver a proper verdict.
    Held: Applying Heasman, it was for the appellant to show that a jury trial would necessarily result in an infringement of its rights. That had not been shown. The absence of reasons from a jury’s verdict did not make for an unfair trial.

    Court: HCJ
    Date: 16-Sep-2004
    Judges: Lord Maclean And Lord Osborne And Lord Hamilton
    Statutes: European Convention on Human Rights 6, Health and Safety at Work Act 1974 3
    Links: ScotC,
    References:
    Cases Cited:

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    Filed under Crime, Human Rights, Scotland

    Sturges -v- Bridgman; CA 1879

    The character of the neighbourhood in which the plaintiff lives should, for the law of nuisance, include established features: ‘whether anything is a nuisance or not is a question to be determined, not merely by an abstract consideration of the thing itself, but in reference to its circumstances; what would be a nuisance in Belgrave Square would not necessarily be so in Bermondsey; and where a locality is devoted to a particular trade or manufacture carried on by the traders or manufacturers in a particular and established manner not constituting a public nuisance, Judges and juries would be justified in finding, and may be trusted to find, that the trade or manufacture so carried on in that locality is not a private and actionable wrong.’
    If a man ‘temporarily licenses’ his neighbour’s enjoyment, that enjoyment is precario in terms of the civil law phrase ‘nec vi nec clam nec precario’. It is not a defence that the plaintiff came to the nuisance.

    Court: CA
    Date: 01-Jan-1879
    Judges: Thesiger LJ
    References: [1879] 11 Ch D 852,
    Cited By:

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    Filed under Land, Nuisance

    Fishenden -v- Higgs & Hill Ltd; CA 1935

    An injunction had been refused an injunction in respect of an infringement of an easement of light and awarded damages in lieu, even though the damages would be substantial because it had been shown that the plaintiff was plainly ‘only wanting money’. The court made use of a sky contour diagram. At first instance Crossman J had said: ‘that something like 50 per cent of an ordinary shaped room ought to be adequately lighted within this so-called grumble line.’
    Held: The appeal against the finding of nuisance was dismissed. There was sufficient material before the learned judge to justify his conclusion that a nuisance would be committed. The court made use of daylight plans, grumble lines and the 50-50 rule.
    Maugham LJ, whilst finding the daylight plans ‘exceedingly useful’ said that ‘no hard and fast mathematical standards can be applied’ and: ‘I should add one thing more with regard to the daylight plans, and that is that they may, I think, often be exceedingly misleading if the so-called 50-50 rule with regard to the amount of light which the rooms should enjoy is applied to a room which has any unusual depth in it, or applied to a room where the windows are in any sense unusual, because the light falling at table height from the window at a particular part of the room depends directly upon the depth of the room and the height of the window, and obviously those things have got to be carefully considered in applying the rule.’
    Romer LJ spoke of the plaintiff’s complaint that ‘he now – that is to say, in the last few weeks – has to use artificial light to eat his lunch, though formerly he could do so by daylight’ and ‘In whatever neighbourhood a dwelling-house is situated, a man is entitled to have his ancient lights protected to this extent, that he may be able to go on having his lunch without the use of electric light in places where obviously he had so lunched.’ A L Smith LJ’s four tests in Shelfer ‘were not intended to be a fetter on the exercise of the court’s discretion’, and Romer LJ suggested that, while it was true that an injunction should be refused if those tests were satisfied, ‘it by no means follow[ed]‘ that an injunction should be granted if they were not In deciding to overturn the injunction, Romer LJ was strongly influenced by the fact that the defendants had ‘acted fairly [and] in a neighbourly spirit’ as well as by the conduct of the plaintiff.

    Court: CA
    Date: 01-Jan-1935
    Judges: Lord Hanworth MR and Romer LJ
    References: [1935] 153 LT 128,
    Cases Cited:
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    Filed under Damages, Land

    AS523422003 (Unreported); AIT 22-Oct-2004

    Court: AIT
    Date: 22-Oct-2004
    Links: Bailii,
    References: [2004] UKAITUR AS523422003,

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    Filed under Immigration

    AS503282003 (Unreported); AIT 22-Oct-2004

    Court: AIT
    Date: 22-Oct-2004
    Links: Bailii,
    References: [2004] UKAITUR AS503282003,

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    Filed under Immigration

    Mackie -v- Dundee City Council; 2001

    A dining hall table being moved by a caretaker was held to be work equipment.

    Date: 01-Jan-2001
    References: [2001] Rep LR 62,
    Cited By:

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    Filed under Health and Safety, Scotland

    Re Butlins Settlement Trusts; 1976

    Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
    Held: The court could rectify the settlement even though only one of the original trustees knew of the intention. (Brightman J) ‘There is, in my judgment, no doubt that the court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement. Lackersteen v. Lactersteen (1860) 30 L.J. Ch 5, a decision of Page-Wood V.C. and Behrens v. Heilbut (1956) 222 L.J. Jo.290, a decision of Harman J., are cases in which voluntary settlements were actually rectified. There are also obiter dicta to the like effect in cases where rectification was in fact refused; see Bonhote v. Henderson [1895] 1 Ch. 642; [1895] 1 Ch. 202.’ and ‘… rectification is available not only in a case where particular words have been added, omitted or wrongly written as a result of careless copying or the like. It is also available where the words of the document are purposely used but it was mistakenly considered that they bore a different meaning as a matter of true construction. In such a case … the court will rectify the wording so that it expresses the true intention ….’

    Date: 01-Jan-1976
    Judges: Brightman J
    References: [1976] Ch 251,
    Cited By:

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    Filed under Contract, Equity

    Catnic Components Ltd & Another -v- Hill & Smith Ltd; HL 1982

    The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The defendants had not been in business in this field at all, entered the market at the expense of the plaintiffs using an infringing version of the plaintiffs’ patented construction.
    Held: The proper damages were on the assumption that the plaintiffs would have made, with their patented lintels, those sales made by the defendants with the infringing lintels save as shown otherwise. An invention involves an inventive step if it is not obvious ‘to a person skilled in the art’ being a person likely to have a practical interest in the subject matter of the invention.
    The approach to construction exemplified in Prenn and in Reardon-Smith is to be applied also to the construction of patents claims: ‘A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge.’ and ‘Both parties to this appeal have tended to treat ‘textual infringement’ and infringement of the ‘pith and marrow’ of an invention as if they were separate causes of action, the existence of the former to be determined as a matter of construction only and of the latter upon some broader principle of colourable evasion. There is, in my view, no such dichotomy; there is but a single cause of action and to treat it otherwise . . is liable to lead to confusion.’

    Court: HL
    Date: 01-Jan-1982
    Judges: Lord Diplock
    Statutes: Patents Act 1977 3
    References: [1983] FSR 512, [1982] RPC 183
    Cases Cited:
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    Filed under Damages, Intellectual Property

    In the Goods of Boehm; 1891

    It was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the will in the belief that the correct name appeared.
    Held: the will could be admitted to probate with the name omitted. In some cases, a simple word or expression can be deleted from a will ‘if shewn to have been inserted by mistake’. By omitting the erroneous name he was creating an ambiguous situation. A court of construction might infer, on consideration of the will as a whole, that in the blank the name of the intended legatee should be understood, or it might hold that the clause was meaningless. Nevertheless his Lordship decided to omit the word. He said: ‘If a person by fraud obtained the substitution of his name for that of another in a will it would be strange if his name could not be struck out, although the rest of the clause in which it occurred became thereby meaningless. It may be that in the present case the effect of striking out the name in question will be, on the construction of the will, as it will then read, to carry out the testator’s intentions completely. It is not for me to decide that. But even if to strike out a name inserted in error and leave a blank have not the effect of giving full effect to the testator’s wishes, I do not see why we should not, so far as we can, though we may not completely, carry out his intentions’

    Date: 01-Jan-1891
    Judges: Jeune J
    References: [1891] P 247,
    Cited By:

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    Filed under Wills and Probate

    Regina -v- Boyes; 27-May-1861

    A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he merited no protection: ‘the effect of which [the pardon] was to make him a new man, and consequently to bar any proceedings by or in the name of the Crown’.
    Cockburn CJ set out the level of risk required to allow a claim of the privilege against self incrimination: ‘To entitle a witness to the privilege of not answering a question as tending to incriminate him, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable grounds to apprehend danger to the witness from his being compelled to answer. If the facts of the witness being endangered be once made to appear, great latitude should be allowed to him in judging the effect of any particular question. The danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things, and not a danger of imaginary character having reference to some barely possible contingency.’

    Date: 27-May-1861
    Judges: Cockburn CJ
    Links: Commonlii,
    References: (1861) 1 B & S 311, [1861] EngR 626, (1861) 121 ER 730
    Cases Cited:
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    Filed under Criminal Practice, Litigation Practice

    Smith -v- Sydney; 1871

    A sequestration order, while in force, was a valid order providing legal protection to those who had obtained it and acted upon it. The court made a distinction between acts of the court and the acts of the parties.

    Date: 01-Jan-1871
    References: (1871) QB 203,
    Cited By:

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    Filed under Litigation Practice

    Keeves -v- Dunn; CA 1924

    The court considred the meaing of the term ‘statutory tenancy': ‘I think that it is a pity that that expression ['statutory tenant'] was ever introduced. It is really a misnomer, for he is not a tenant at all; although he cannot be turned out of possession so long as he complies with the provisions of the statute, he has no estate or interest in the premises such as a tenant has.’

    Court: CA
    Date: 01-Jan-1924
    Judges: Bankes LJ
    References: [1924] 1 KB 685,
    Cited By:

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    Filed under Landlord and Tenant

    Regina -v- National Insurance Commissioners, ex parte Timmis; QBD 1954

    A decision of the Commisioners was said by statute to be final, an accordingly certiorari was not available.

    Court: QBD
    Date: 01-Jan-1954
    References: [1954] 2 All ER 292,
    Cited By:

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    Filed under Administrative

    Re Deans; 1954

    A Probate Judge is not considered to be a trustee.

    Date: 01-Jan-1954
    References: [1954] 1 WLR 332,
    Cited By:

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    Filed under Trusts

    West Bromwich Building Society -v- Robert Guest and Financial Intermediaries, Managers and Brokers Regulatory Association; CA 12-Dec-1996

    Court: CA
    Date: 12-Dec-1996
    Links: Bailii,
    References: [1996] EWCA Civ 1199,

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    Filed under Financial Services

    Marley -v- Rawlings & Another; CA 2-Feb-2012

    Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed that of the other. After Mr Rawling died the family disputed whether he had made a will. Mrs Rawling applied for rectification of the document signed by her late husband, and now appealed against rejection of her claim, the judge finding that the document had not been intended to be his will.
    Held: The appeal failed. The Will did not satisfy section 9(b) of the 1837 Act, and rectification was not available to correct it.

    Court: CA
    Date: 02-Feb-2012
    Judges: Sir John Thomas
    Statutes: Wills Act 1837 3 9, Wills Act Amendment Act 1852, Administration of Justice Act 1982 20 21
    Links: Bailii,
    References: [2012] 2 FLR 556, [2012] EWCA Civ 61, [2013] 2 WLR 205, [2013] Ch 271, [2012] WTLR 639, 14 ITELR 843, [2012] Fam Law 403, [2012] 4 All ER 630
    Cases Cited:
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    Filed under Wills and Probate

    Bowman -v- Hyland; 1878

    A vendor’s right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract.

    Date: 01-Jan-1878
    References: (1878) 8 Ch D 588,
    Cited By:

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    Filed under Contract, Land

    Rossiter -v- Miller; 1873

    There is no significance in the fact that a formal written agreement, whether executed or not, is in different terms to the oral discussions leading up to it, subject of course to the appropriate authority of those who have executed it.
    Lord Blackburn said: ‘So long as they are only in negotiation either party may retract; and though the parties may have agreed on all the cardinal points of the intended contract, yet, if some particulars essential to the agreement still remain to be settled afterwards, there is no contract. The parties, in such a case, are still only in negotiation. But the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, shew that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence and determining whether the parties have really come to a final agreement or not. But as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed.’

    Date: 01-Jan-1873
    Judges: Lord Blackburn
    References: [1873] 3 APP Cas 1124,
    Cited By:

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    Filed under Contract

    Cockburn -v- Smith; 1924

    The owner of a block of flats let one to the tenant, but kept the roof and guttering in his own possession and control. The guttering became defective and the landlord failed to remedy it after notice. Rainwater escaped and caused damage to the Claimant.
    Held: The landlords were liable for the damage suffered by her.
    Bankes LJ referred to a ‘line of authorities to show that a landlord is under an obligation to take reasonable care that the premises retained in his occupation are not in such a condition as to cause damage to the parts demised to others.’

    Date: 01-Jan-1924
    Judges: Scrutton LJ, Bankes LJ and Sargant LJ
    References: [1924] 2 KB 119,
    Cases Cited:
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    Filed under Landlord and Tenant

    Regina -v- Boyesen; HL 1982

    The House considered the meaning of possession.
    Held: Lord Scarman: ‘Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control.’

    Court: HL
    Date: 01-Jan-1982
    References: [1982] AC 768,
    Cited By:

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    Filed under Crime

    Pilcher -v- Rawlins; 1872

    Equity has an interest in and a power over a purchaser’s conscience. Good faith is a separate test which may have to be passed even though absence of notice is proved.

    Date: 01-Jan-1872
    Judges: James LJ
    References: (1872) LR 7 Ch App 259,
    Cited By:

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    Filed under Equity

    Semtex Ltd -v- Gladstone; 1954

    The court considered the liability of the master in a case of master and servant, a case of pure vicarious liability and a case in which the sole cause of the injuries was the negligence of the servant.

    Date: 01-Jan-1954
    Judges: Finnimore J
    References: [1954] 2 All ER 206,
    Cited By:

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    Filed under Limitation, Vicarious Liability

    Arbuthnott -v- Fagan; CA 11-Jul-1994

    Evidence given to Lloyds loss review committee is discoverable despite rule.

    Court: CA
    Date: 11-Jul-1994
    Links: Ind Summary,
    References:
    Cases Cited:
    • Arbuthnott -v- Fagan, CA, See also, ([1995] CLC 1396, [1996] 1 Lloyd's Re Insurance Law Reports 135)

    Cited By:

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    Filed under Litigation Practice

    NS -v- Secretary of State for the Home Department etc; ECJ 21-Dec-2011

    ECJ (Grand Chamber) European Union law – Principles – Fundamental rights – Implementation of European Union law – Prohibition of inhuman or degrading treatment – Common European Asylum System – Regulation (EC) No 343/2003 – Concept of ‘safe countries’ – Transfer of an asylum seeker to the Member State responsible – Obligation – Rebuttable presumption of compliance, by that Member State, with fundamental rights

    Court: ECJ
    Date: 21-Dec-2011
    Judges: V Skouris, P
    Statutes: Regulation (EC) No 343/2003
    Links: Bailii,
    References: [2012] 2 CMLR 9, [2012] All ER (EC) 1011, [2011] EUECJ C-411/10, [2013] QB 102, ECLI:EU:C:2011:865, [2012] 3 WLR 1374
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    Filed under European, Human Rights, Immigration

    Anstruther-Gough-Calthorpe -v- McOscar; CA 1924

    Tenants of new houses in 1925 agreed in their 99 year leases to yield up the premises having well and sufficiently repaired the premises with all manner of reparations.
    Held: Atkin LJ said that repair ‘connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged’.

    Court: CA
    Date: 01-Jan-1924
    Judges: Atkin LJ
    References: [1924] 1 KB 716,

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    Filed under Landlord and Tenant

    Universal Cargo Carriers Corporation -v- Citati; 1957

    The shipowners had cancelled a voyage charter-party because no cargo had been provided. The court asked what delay could lead to a claim for a repudiatory breach of a contract. Devlin J said: ‘This case gives rise to a difficult question. How long is a ship obliged to remain on demurrage, and what are the rights of the owner if the charterer detains her too long? Translated into the terms of general contract law, the question is: Where time is not of the essence of the contract – in other words, when delay is only a breach of warranty – how long must the delay last before the aggrieved party is entitled to throw up the contract? The theoretical answer is not in doubt. The aggrieved party is relieved from his obligations when the delay becomes so long as to go to the root of the contract and amount to a repudiation of it. The difficulty lies in the application, for it is hard to say where fact ends and law begins. The best solution will be found, I think, by a judge who does not try to draw too many nice distinctions between fact and law, but who, having some familiarity both with the legal principle and with commercial matters and the extent to which delay affects maritime business, exercises them both in a common-sense way. This is the sort of solution which, upon the supposition that it was acceptable to business men, the commercial court was created to provide.’ and ‘But a party to a contract may not purchase indefinite delay by paying damages . . When the delay becomes so prolonged that the breach assumes a character so grave as to go to the root of the contract, the aggrieved party is entitled to rescind. What is the yardstick by which this length of delay is to be measured? Those considered in the arbitration can now be reduced to two’ (as in the present appeal) ‘first, the conception of a reasonable time, and secondly, such delay as would frustrate the charter-party . . In my opinion the second has been settled as the correct one by a long line of authorities’.

    Date: 01-Jan-1957
    Judges: Devlin J
    References: [1957] 2 QB 402,
    Cited By:

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    Filed under Contract

    GH Renton & Co Ltd -v- Palmyra Trading Corporation of Panama; HL 1957

    An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
    Lord Somervell of Harrow said as to Art III r2: ‘It is, in my opinion, directed and only directed to the manner in which the obligations undertaken are to be carried out. Subject to the later provisions, it prohibits the shipowner from contracting out of liability for doing what he undertakes properly and with care. This question was considered by Devlin J in Pyrene Co Ltd v Scindia Navigation Company Limited in relation to the words ‘shall properly and carefully load’. I agree with his statement, which has already been cited.’

    Court: HL
    Date: 01-Jan-1957
    Judges: Lord Morton of Henryton, Lord Cohen and Lord Somervell of Harrow.
    Statutes: Hague-Visby Rules III r8
    References: [1957] AC 149,
    Cases Cited:

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    Filed under Transport

    Carter -v- Boehm; 1766

    Lord Mansfield CJ said: ‘The underwriter, here, knowing the governor to be acquainted with the state of the place; knowing that he apprehended danger, and must have some ground for his apprehension; being told nothing of either; signed this policy, without asking a question. If the objection ‘that he was not told’ is sufficient to vacate it, he took the premium knowing the policy to be void; in order to gain, if the alternative turned out one way; and to make no satisfaction, if it turned out the other: he drew the governor into a false confidence . . If he thought that omission an objection at the time, he ought not to have signed the policy with a secret reserve in his own mind to make it void; if he dispensed with the information, and did not think this silence an objection then; he cannot take it up now, after the event.’ and
    ‘There are many matters as to which the insured may be innocently silent. He need not mention what the underwriter knows: what way soever he came to the knowledge. The insured need not mention what the underwriter ought to know: what he takes upon himself the knowledge of: or what he waives being informed of…and either party may be innocently silent as to grounds open to both to exercise their judgment upon.’
    There may be circumstances in which an insurer, by asserting a right to avoid for non-disclosure, would himself be guilty of want of good faith.

    Date: 01-Jan-1766
    Judges: Lord Mansfield CJ
    Links: Commonlii,
    References: [1766] 3 Burr 1905, [1766] EngR 13, (1766) 3 Burr 1905, (1766) 97 ER 1162 (C)
    Cases Cited:
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    Filed under Insurance

    Georgiou and Another -v- Commissioners of Customs & Excise; QBD 19-Oct-1995

    The VAT tribunal may assess whether the Commissioner had acted on the basis of his best judgment. Evans LJ discussed appeals on fact disguised as appeals on law: ‘There is a well-recognised need for caution in permitting challenges to findings of fact on the ground that they raise this kind of question of law. That is well seen in arbitration cases and in many others. It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. As this case demonstrates, it is all too easy for the appeals procedure to the High Court to be misused in this way. Secondly, the nature of the factual inquiry which an appellate court can and does undertake in a proper case is essentially different from the decision-making process which is undertaken by the tribunal of fact. The question is not, has the party upon whom rests the burden of proof established on the balance of probabilities the facts upon which he relies, but, was there evidence before the tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the tribunal was entitled to make? Clearly, if there was no evidence, or the evidence was to the contrary effect, the tribunal was not so entitled.
    It follows, in my judgment, that for a question of law to arise in the circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and, fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. What is not permitted, in my view, is a roving selection of evidence coupled with a general assertion that the tribunal’s conclusion was against the weight of the evidence and was therefore wrong. A failure to appreciate what is the correct approach accounts for much of the time and expense that was occasioned by this appeal to the High Court.’

    Court: QBD
    Date: 19-Oct-1995
    Judges: Evans LJ
    Statutes: Value Added Tax Act 1994 83 84
    Links: Times,
    References: [1996] STC 463,
    Cited By:

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    Filed under Litigation Practice, VAT

    Verge -v- Somerville; PC 1924

    On an appeal from New South Wales, The Board considered the validity of a gift ‘to the trustees’ of the Repatriation Fund or other similar fund for the benefit of New South Wales returned soldiers’.
    Held: Trusts for education and religion do not require any qualification of poverty to be introduced to give them validity and generally poverty is not a necessary qualification in trusts beneficial to the community. However, Lord Wrenbury said: ‘To ascertain whether a gift constitutes a valid charitable trust so as to escape being void on the ground of perpetuity, a first enquiry must be whether it is public-whether it is for the benefit of the community or of an appreciably important class of the community. The inhabitants of a parish or town, or any particular class of such inhabitants, may, for instance, be the objects of such a gift, but private individuals, or a fluctuating body of private individuals, cannot.’

    Court: PC
    Date: 01-Jan-1924
    Judges: Lord Wrenbury
    References: [1924] AC 496,
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    Filed under Charity, Commonwealth

    Johnston -v- Boyes; 1899

    There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.

    Date: 01-Jan-1899
    References: [1899] 2 Ch 73, [1899] 68 LJ Ch 425, [1989] 80 LT 488, [1989] 47 WR 517, [1989] 43 Sol Jo 457
    Cases Cited:

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    Filed under Contract

    In re Hawksleys Settlement; Black -v- Tidy; 1934

    A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
    Held: Neither feature was sufficient to effect a complete revocation of the earlier will. What was conclusive in that regard was that the second will was wholly inconsistent with the first. An implied revocation was found because a clear inconsistency between the successive testamentary instruments was identified, so that the presumption against implied revocation was rebutted.

    Date: 01-Jan-1934
    Judges: Luxmoore J
    References: [1934] Ch 384,
    Cited By:

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    Filed under Wills and Probate

    European Commission -v- Siemens Ag A-Sterreich & Others; ECJ 10-Apr-2014

    ECJ (Judgment Of The Court (Fourth Chamber)) Appeals – Competition ? Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Joint and several liability for payment of the fine – Concept of an ‘undertaking’ – Principle of personal liability and the principle that the penalty must be specific to the offender and the offence – Unlimited jurisdiction of the General Court – The ultra petita rule – Principles of proportionality and equal treatment

    Court: ECJ
    Date: 10-Apr-2014
    Links: Bailii,
    References: C-231/11, [2014] EUECJ C-231/11, ECLI:EU:C:2014:256

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    Filed under European

    In the Goods of Hunt; 1875

    Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
    Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it.’

    Date: 01-Jan-1875
    Judges: Sir J Hannen
    Statutes: Wills Act 1837
    References: (1875) LR 3 P&D 250,
    Cited By:

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    Filed under Wills and Probate

    The London Chartered Bank of Australia -v- William George Lempriere And Others; 6-Feb-1873

    The property of a married woman, settled by an ante-nuptial Settlement for her separate use for life, with remainder as she should by Deed or Will appoint, with remainder in failure of appointment to her Executors or Administrators, is an absolute settlement for her sole and separate use, without restraint or anticipation, and vests in equity the entire corpus in her for all purposes.

    Date: 06-Feb-1873
    Links: Commonlii,
    References: [1873] EngR 3, (1873) 9 Moo PC NS 426, (1873) 17 ER 574

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    Filed under Family, Trusts

    In the Goods of Oswald; 1874

    The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’
    Held: Hannen J said: ‘It was clearly not the intention of the deceased to revoke her previous will. From the facts stated in the affidavit it is evident that the words of revocation were introduced into the last paper per incuriam, and therefore probate will issue without them.’ The judge had received and relied upon an affidavit from one of the executors who attended on the deceased when she executed it that no instructions were given to the person who drew up the second will to insert a clause of revocation, the will was never read over by or to the deceased before she executed it and she was not aware of the clause of revocation contained therein.

    Date: 01-Jan-1874
    Judges: Sir James Hannen P
    References: (1874) LR 3 P&D 162,
    Cited By:

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    Filed under Wills and Probate

    Young -v- Edward Box & Co Ltd; CA 1951

    A lorry driver employed by a firm of contractors on a site where many other contractors were working, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. The passenger was injured and sought to sue the employer.
    Held: He could not.
    Lord Denning MR said:’In every case where it is sought to make the master liable for the conduct of his servant, the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant’s liability’.
    Asquith LJ said: ‘I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class ‘which he was not employed to perform at all.’

    Court: CA
    Date: 01-Jan-1951
    Judges: Asquith LJ, Denning LJ
    References: [1951] 1 TLR 789,
    Cited By:
    • Rose -v- Plenty, CA, Cited, ([1976] 1 WLR 141, Bailii, [1975] EWCA Civ 5, [1976] 1 All ER 97, [1975] ICR 430)

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    Filed under Vicarious Liability

    York Glass Co Ltd -v- Jubb; 1924

    The defendant denied liability under contract, after the vendor brought an action against against the committee of his estate as a person of unsound mind. He said that the fact that he was of unsound mind was known to vendor, and later that the vendor knew that he was infirm of mind and body and incapable of managing his affairs reasonably and properly, that the price was excessive, that he had no legal advice and that there was no reasonable degree of equality between the contracting parties.
    Held: the first defence was a plea in law, the second raised a case for rescission in equity. ‘It is well settled that where the defendant in an action of contract sets up the defence of his insanity at the date of the contract he must, in order to succeed, show that the plaintiff knew of his insanity.’ The defendant had not shown that the company knew of the unsoundness of mind. As to te plea in equity: ‘In the result, after having carefully considered the whole of the evidence in support of this part of the case, I have come to the conclusion and hold as a fact that there was no want of fairness either in the terms of the contract itself or in the circumstances under which it was made, and I acquit all the persons concerned in the transaction on behalf of the plaintiff company from the charge made against them of having overreached or exercised any undue influence over the defendant.’

    Date: 01-Jan-1924
    References: [1924] 131 LT Rep 559,
    Cited By:

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    Filed under Contract

    Boyes -v- Cook; CA 1880

    James LJ said that when interpreting a will, the court should ‘place [itself] in [the testator's] arm-chair’

    Court: CA
    Date: 01-Jan-1880
    Judges: James LJ
    References: (1880) 14 Ch D 53,
    Cited By:

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    Filed under Wills and Probate

    Goodrich -v- Paisner; HL 1956

    By a tenancy agreement, the landlord of a dwelling house let to the tenant, on a weekly tenancy, four unfurnished rooms on the first floor of the house together with the use in common with the landlord of the back bedroom on the first floor and the use, in common with the landlord and others authorised by her and of the bathroom and lavatories. After the death of the landlord, the respondents, her successors in title, determined the tenancy by a notice to quit, but the tenant refused to deliver up possession. In an action by the respondents for possession of the four unfurnished rooms, the tenant claimed that she was entitled to the protection of Rent and Mortgage Interest Restrictions Acts 1922 to 1939, because the rooms were let as a separate dwellings within the Increase of Rent and Mortgage Interest Restrictions Act 1920 section 12(2). The respondents contended that as the tenant had the right to share a living room with the landlord, the premises let to her were not let as a separate dwelling, within section 12(2), because the words in the tenancy agreement, ‘the use in common with the landlord of the back bedroom’, were too vague to constitute a right to share part of the dwelling sufficient to exclude the operation of the Rent Restrictions Acts, or created merely a right to the exclusive use of the room from time to time, and did not involve such an evasion of privacy as would exclude the Acts.
    The House considered the interpretation of the phrase let as a ‘separate’ dwelling. Lord Reid said: ‘No court is entitled to substitute its words for the words of the Act.
    But a court can and must decide what is the appropriate test in a particular case and, when the Court of Appeal has laid down a test, that test ought to be followed in all cases which do not present substantial relevant differences . . [T]hat does not mean that the words used by the Court of Appeal are to be treated as if they were words in an Act of Parliament. In substantially different circumstances they are only a guide, and not a rule.’

    Court: HL
    Date: 01-Jan-1956
    Judges: Lord Reid
    References: [1957] AC 65, [1956] 2 All ER 176, [1956] 2 WLR 1053, 100 Sol Jo 341
    Cited By:
    • Uratemp Ventures Limited -v- Collins, HL, Cited, (House of Lords, Bailii, Times 18-Oct-01, Gazette 25-Oct-01, [2001] UKHL 43, [2002] 1 AC 301, [2002] 1 All ER 46, [2001] 3 WLR 806, [2001] All ER (D) 154, [2002] RVR 162, [2002] L & TR 15, [2002] 1 P & CR DG15, [2001] 3 EGLR 93, [2001] Hous LR 133)

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    Filed under Landlord and Tenant

    Dean -v- Prince; CA 1954

    The court had criticised an auditors’ valuation of a company’s shares.
    Held: The criticism was not correct. However. if the court was satisfied that the valuation was made under a mistake, it would not be binding on the parties.
    Denning LJ said: “Even if the court cannot point to the actual alleged error, nevertheless, if the figure itself is so extravagantly large or so inadequately small that the only conclusion is that he must have gone wrong somewhere, then the court will interfere much in the same way as the Court of Appeal will interfere with an award of damages if it is a wholly erroneous estimate.”

    Court: CA
    Date: 01-Jan-1954
    Judges: Denning LJ
    References: [1954] 1 All ER 749, [1954] Ch 409
    Cases Cited:
    Cited By:

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    Filed under Company, Damages

    Commissioners of Inland Revenue -v- Lactagol; 1954

    A company, at the relevant time director controlled, made a payment to its managing director in consideration for his undertaking not to compete with the company within five years of the date when he would leave its service.
    Held: The transaction was one involving a commercial basis to buy an asset of value to the company and should not be treated as a distribution for the benefit of the managing director.

    Date: 01-Jan-1954
    Judges: Harman J
    References: (1954) 35 TC 230,
    Cases Cited:
    Cited By:

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    Filed under Income Tax

    In re Reynette-James decd, Wightman -v-; ChD 1976

    A court does not have power to rectify a will.

    Court: ChD
    Date: 01-Jan-1976
    Judges: Templeman J
    References: [1976] 1 WLR 16, [1975] All ER 3 1037
    Cited By:

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    Filed under Wills and Probate