May 25, 2013

Zainal bin Hashim -v- Government of Malaysia; PC 1980

A statute should not be given a construction that would impair existing rights personal or in property unless the language in which it is couched requires such a construction. The court considered the presumption that vested rights are not affected without clear wording. The rule in Joseph Suche was to be restricted so that ‘for pending actions to be affected by retrospective legislation, the language of the enactment must be such that no other conclusion is possible than that that was the intention of the legislature.’ Since the potential injustice of interfering with the rights of parties to actual proceedings is particularly obvious, this narrower presumption will be that much harder to displace, but it was displaced in this case.

Court: PC
Date: 01-Jan-1980
References: [1980] AC 734,
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May 25, 2013

Macnaughton -v- Macnaughtons Trustees; IHCS 1953

It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of contentious litigation to decide only live, practical questions, and that they have no concern with hypothetical, premature or academic questions, nor do they exist to advise litigants as to the policy which they should adopt in the ordering of their affairs. The Courts are neither a debating club nor an advisory bureau. Just what is a live practical question is not always easy to decide and must, in the long run, turn on the circumstances of the particular case.’

Court: IHCS
Date: 01-Jan-1953
Judges: Lord Justice-Clerk Thomson
References: [1953] SC 387,
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May 25, 2013

Salvation Army Trustee Co Ltd -v- West Yorkshire Metropolitan County Council; 1980

Threatened with a road widening, the plaintiffs left their old property, and began to develop their new one, again, on land owned by the respondent. In practice it was negotiated as an exchange of properties. The negotiations were held ‘without prejudice’ but treated as if it were ‘subject to contract’
Held: ‘In the case of a normal arrangement to sell where there is no contract it would be virtually impossible to rely on the principle of proprietary estoppel’. An estoppel can arise in circumstances where an agreement ‘subject to contract’ has been made, but in order to do so, it must be based on something other than the ‘subject to contract’ agreement alone. In these very singular circumstances, the ‘irretrievably interwoven’ dealings were such that the defendant could not lawfully withdraw from the proposal for compulsory purchase of the old site.

Date: 01-Jan-1980
Judges: Woolf J
References: (1980) 41 P & CR 179,
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May 25, 2013

Regina -v- Secretary of State for the Home Department, Ex parte Zamir; HL 1980

A person who obtained leave to enter, but did so by fraud, was an illegal entrant, on the basis that the fraud had the effect of vitiating the leave to enter which had been granted: ‘it is clear on general principles of law that deception may arise from conduct, or from conduct accompanied by silence as to material fact.’ The Divisional Court: ‘cannot possibly act as, in effect, a Court of Appeal as to the facts on which the Immigration Officer decided. What it is able to do, and this is the limit of its powers, is to see whether there was evidence on which the Immigration Officer, acting reasonably, could decide as he did.’ The Secretary of State’s decision to deport the applicant was revieweable under habeas corpus.

Court: HL
Date: 01-Jan-1980
Judges: Lord Wilberforce, Viscount Dilhorne, Lord Salmon, Lord Fraser of Tullybelton, Lord Russell of Killowen
Statutes: Immigration Act 1971
Links: Bailii,
References: [1980] AC 930 HL, [1980] UKHL 14, [1980] 2 All ER 768, [1980] 3 WLR 249
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May 25, 2013

Johnson -v- Moreton; HL 1980

The tenant had, in the tenancy agreement itself, purported to contract ‘not in any event to serve a counter-notice under Section 24(1)’ of the 1948 Act.
Held: A head tenant under an agricultural tenancy has the right to challenge any notice to quit by serving a counter-notice, and any agreement purporting to exclude or curtail that right is unenforceable. The estoppel relied on was an estoppel by convention alleged to arise as a result of the common intention of the parties as at the date of the agreement. The question is whether the right conferred is exclusively personal (in which case waiver will be permitted) or is designed to serve other, broader public purposes and so, compendiously, whether to permit a waiver would undermine or frustrate the purposes of the statute.

Court: HL
Date: 01-Jan-1980
Judges: Lord Salmon, Lord Hailsham of St Marylebone
References: [1980] AC 37,
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May 25, 2013

Kirby -v- Manpower Services Commission; EAT 1980

The applicant, an employee at a job centre was demoted because he had disclosed confidential information about possible contraventions of the race relations legislation. He complained of race discrimination, saying his disclosure was a protected act.
Held: This was not victimisation within section 2. The relevant question was whether the employers had treated the complainant less favourably than they would have treated someone in their employment who gave away confidential information whatever its kind. The claim failed, because the Manpower Services Commission would have treated in the same way any employee who gave away confidential information whatever its nature.

Court: EAT
Date: 01-Jan-1980
Judges: Slynn J
Statutes: Race Relations Act 1976 2
References: [1980] 3 All ER 334, [1980] 1 WLR 725, [1980] ICR 420
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May 25, 2013

Top Shop Estates Ltd -v- Danino; 1985

If using his personal knowledge of a specialised character rather than such as may be generally known to an expert in that area, then the arbitrator must afford the parties the chance to comment on that knowledge.

Date: 01-Jan-1985
Statutes: Arbitration Act 1950
References: [1985] 1 EGLR 9,
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May 25, 2013

Harrogate Borough Council -v- Simpson; CA 1985

The claimant (defending proceedings for possession by the local authority) had lived with the deceased secure tenant in a lesbian relationship for some years and was so living at the date of her death. She sought to defend her occupation saying she qualified as a spouse of the deceased.
Held: The defence failed: ‘I agree that the expression ‘living together as husband and wife’ . . is not apt to include a homosexual relationship. The essential characteristic of living together as husband and wife, in my judgment, is that there should be a man and a woman . . ‘ (Ewbank J) The natural English meaning of the words ‘wife or husband’ was gender-specific, and thus, purely as a matter of language, excluded same-sex relationships.

Court: CA
Date: 01-Jan-1985
Judges: Watkins LJ, Ewbank J
Statutes: Housing Act 1980 50
References: (1985) 17 HLR 205,
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May 25, 2013

Insurance Co of Africa -v- SCOR (UK) Reinsurance Co Ltd; CA 1985

An underlying insurance policy covered a warehouse in Liberia against fire, including $500,000 for buildings and $3 million for contents. The warehouse became a total loss. The owners of the warehouse brought proceedings in the Liberian courts. The insurers unsuccessfully defended, and as well as the sum insured, they had to pay general damages of $600,000 and $58,000 costs. The insurers could recover a proportion of the damages and costs from the re-insurers under an implied term of the re-insurance contract.
Held: There was no basis to imply a term that the re-insurers should bear a proportion of the costs of defending the claim on the ground of business efficacy. The contract worked effectively without any such implication, and if such a term was implied, the re-insurers’ potential liability would be increased beyond, and possibly far beyond, the sum insured under the contract of re-insurance. The effect of the words in the policy ‘to pay as may be paid thereon’ was to bind reinsurers to a compromise by the insurers of the question of the amount of a claim so that, provided that the insurers could establish a loss of the kind insured and reinsured, and that the reinsured had acted honestly and had taken all proper and businesslike steps to have the amount of the loss fairly and carefully ascertained, reinsurers were obliged to indemnify the insurers in respect of that amount.

Court: CA
Date: 01-Jan-1985
Judges: Robert Goff LJ, Fox LJ
References: [1985] 1 Lloyd's Rep 312,
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May 25, 2013

Moores -v- Bude-Stratton Town Council; EAT 27-Mar-2000

EAT Unfair Dismissal – Reason for dismissal including substantial other reason
Lindsay J said: ‘As for determining whether a wrongdoer is on his own business, just as no single test is nowadays seen to be determinative of whether a person is an employee (as opposed, for example, to being self-employed or an independent contractor), so also no one test is determinative of a person being on his own business for the purposes of vicarious liability, very commonly a closely related question. Similar questions arise in both cases: was remuneration paid for the doing of what was done; was what was done, done for the benefit of the party sought vicariously to be made liable (‘the propositus’)? Was the act complained of reasonably incidental to the duties of the wrongdoer as cast upon him by the propositus? Was the propositus in a position of control, not only to order what was to be done but how it was to be done? Was the propositus in a position to select who should do the activity in the course of which the wrongful act occurred? Could the propositus suspend or stop that activity? Was what was done expressly or impliedly authorised by the propositus? Was it an unauthorised way of doing something which was authorised? Was it the performance of an act of a class the wrongdoer was not required to do at all or had been forbidden to do? No single question and answer is likely to be determinative but together the answers should provide a composite from which it can be adjudged whether vicarious liability exists.’

Court: EAT
Date: 27-Mar-2000
Judges: Justice Lindsay (President)
Links: EATn, Bailii,
References: EAT/313/99, [2000] EAT 313_99_2703, [2001] ICR 271
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