Month: June 2015

Foss v Harbottle; 25 Mar 1843

References: [1843] 67 ER 189, [1843] EngR 478, (1843) 2 Hare 461
Links: Commonlii
Coram: Wigram VC, Jenkins LJ
Ratio A bill was lodged by two of the proprietors of shares in a company incorporated by Act of Parliament, on their own and the other shareholders’ behalf. They claimed against three bankrupt directors, a proprietor, solicitor and architect charging them with fraudulent transactions misapplying the company’s assets, that there had ceased to be a sufficient number of qualified directors to make up a board, and the company had no clerk or office, that in such circumstance the proprietors had no power to take the property out of the hands of the defendant directors. Observations were made on the point at which a relationship of trust arises between company promoters and the company. The possibility of avoiding a transaction does not necessarily create a void transaction. A corporation may later choose to adopt the transaction, and hold the directors bound by them. They can be confirmed if a transaction is a mortgage not authorised by powers given by the Act, this is an act beyond the powers of the corporation and can not be confirmed whilst there is any one dissenting voise raised against it.
Ratio Jenkins LJ said: ‘The proper plaintiff in an action in respect of a wrong alleged to be done to a corporation is, prima facie, the corporation.’
This case is cited by:

  • Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Heyting -v- Dupont CA ([1964] 1 WLR 843)
    The plaintiff owned shares in a company registered in Jersey and created to make the most of an invention. The articles contained a deadlock provision.
    Held: This was ‘essentially a dispute between two discordant partners’ There was a general . .
  • Explained – Prudential Assurance Co Ltd -v- Newman Industries Ltd (No 2) CA ([1982] Ch 204)
    A plaintiff shareholder cannot recover damages merely because the company in which he has an interest has suffered damage. He cannot recover a sum equal to the diminution in the market value of his shares, or equal to the likely diminution in . .
  • Cited – Cabvision Ltd -v- Feetum and others CA (Bailii, [2005] EWCA Civ 1601, Times 02-Jan-06)
    The company challenged the appointment of administrative receivers, saying there had been no insolvency.
    Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
  • Cited – Stuart -v- Goldberg and Linde (a firm) CA (Bailii, [2008] EWCA Civ 2, [2008] CP Rep 18, [2008] 1 WLR 823)
    The claimant appealed against orders preventing him from suing his former solicitors in respect of heads of claim which the court said should have been included in earlier proceedings.
    Held: When deciding whether a claim was an abuse of . .
  • Cited – Webster -v- Sandersons Solicitors (A Firm) CA (Bailii, [2009] EWCA Civ 830)
    The claimant apealed against refusal of permission to amend his claim for negligence against his former solicitors by adding claims from 1993 and 1994 . .
  • Cited – Wallersteiner -v- Moir (No 2) CA ([1975] QB 373, [1975] 1 All ER 849, [1975] 2 WLR 389)
    The court was asked whether Moir would be entitled to legal aid to bring a derivative action on behalf of a company against its majority shareholder.
    Held: A minority shareholder bringing a derivative action on behalf of a company could obtain . .
  • Cited – Iesini and Others -v- Westrip Holdings Ltd and Others ChD (Bailii, [2009] EWHC 2526 (Ch), [2011] 1 BCLC 498, [2010] BCC 420)
    The claimants were shareholders in Westrip, accusing the Defendant directors of deliberately engaging in a course of conduct which has led to Westrip losing ownership and control of a very valuable mining licence and which, but for their . .
  • Cited – Smith -v- Croft (No 3) ChD ([1987] BCLC 355)
    Knox J said: ‘Ultimately the question which has to be answered in order to determine whether the rule in Foss v. Harbottle applies to prevent a minority shareholder seeking relief as plaintiff for the benefit of the company is, ‘Is the plaintiff . .
  • Cited – Bracken Partners Ltd -v- Gutteridge and Others ChD (Bailii, [2003] EWHC 1064 (Ch), [2003] 2 BCLC 84, [2003] WTLR 1241)
    The claimant sought to claim against former directors of a company in which it held shares under the rule in Foss v Harbottle. . .

(This list may be incomplete)
Last Update: 09-Mar-16 Ref: 180903

Henderson v Henderson; 20 Jul 1843

References: (1843) 3 Hare 100, [1843] EngR 917, (1843) 67 ER 313
Links: Commonlii
Coram: Sir James Wigram VC
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule of the Court correctly when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.’
This case is cited by:

  • Applied – Wain -v- Sherwood & Sons Transport Ltd CA (Times 16-Jul-98, Gazette 24-Jun-98)
    Plaintiff, having succeeded in claim for damage to his car, was subject to an action estoppel, since he could have had the additional claim for personal injury damages settled at the same time. A mistake by his adviser which fell short of being . .
  • Cited – Time Group Limited -v- Computer 2000 Distribution Limited and IBM United Kingdom Limited TCC (Bailii, Bailii, [2002] EWHC 126 (Technology))
    Computers had been supplied by the second defendant to the claimant and first defendant at different times for exclusive distribution in the UK. Defects were alleged. The case concerned applications made for dismissal of a case as an abuse of . .
  • Cited – Ansari and Another -v- Barclays Bank Plc CA (Bailii, [1997] EWCA Civ 3055)
    The appellant sought leave to appeal an order striking out their claim against the bank. There had been considerable litigation. They had executed charges supporting personal guarantees, in support of loan agreements in favour of the company of . .
  • Cited – Tilly -v- Hamleys of London Ltd, Essex County Council CA (Bailii, [1998] EWCA Civ 1767)
    The claimant had brought an action against the shop. She had been stopped on leaving when a library book caused the anti-theft alarm to go off. She and felt humiliated by the public way she was dealt with. Her claim in negligence had been dismissed, . .
  • Cited – Johnson -v- Gore Wood and Co (a Firm) CA (Bailii, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Explained – Johnson -v- Gore Wood & Co HL (Gazette 05-Jan-01, House of Lords, Times 20-Dec-00, Gazette 22-Feb-01, Bailii, [2000] UKHL 65, [2001] 2 WLR 72, [2001] 1 All ER 481, [2002] 2 AC 31)
    A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
    Held: It need not be an abuse of the court for a shareholder . .
  • Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
    World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .
  • Cited – The Sennar (No 2) HL ([1985] 1 WLR 490)
    The Henderson v Henderson principle should only be applied where it is clear (i) that the decision or determination relied on was made by a foreign court of competent jurisdiction and (ii) the decision upon the issue later sought to be raised is a . .
  • Cited – Anyanwu and Ebuzoeme -v- South Bank Students’ Union South Bank University CA (Bailii, [1999] EWCA Civ 1032)
    The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
    Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to . .
  • Cited – J A Pye (Oxford) Limited -v- South Gloucestershire District Council CA (Bailii, [2000] EWCA Civ 268)
    The company appealed an award by way of valuation for land which was to valued as if purchased compulsorily. It was argued that they were raising points which should have been litigated before the Lands Tribunal.
    Held: The appeal to the court . .
  • Cited – Barrow -v- Bankside Members Agency Limited CA (Times 10-Nov-95, [1996] 1 WLR 257)
    Mr Barrow was a member of an action group which had successfully sued a number of members’ agents for negligent underwriting. Having substantially succeeded, but recovered only a proportion of the damages he had claimed, Mr Barrow issued fresh . .
  • Approved – Yat Tung Investment Co Ltd -v- Dao Heng Bank Ltd PC ([1975] AC 581)
    Hong Kong – A company purchased a property from the defendant bank who had taken it back into possession from a former borrower. The company itself fell into arrears, the property was taken back again and resold. The company sought a declaration . .
  • Cited – Sweetman -v- Nathan and others CA (Bailii, [2003] EWCA Civ 1115, Times 01-Sep-03, [2004] PNLR 89)
    The claimant had been engaged with his solicitor in a fraudulent land transaction. He now sought to sue the solicitor for negligence. The solicitor replied that the claimant was unable to rely upon his own unlawful act to make a claim.
    Held: . .
  • Applied – Arnold -v- National Westminster Bank Plc HL ([1991] 2 AC 93, [1991] 3 All ER 41, [1991] 2 WLR 1177)
    Tenants invited the court to construe the terms of a rent review provision in the sub-underlease under which they held premises. The provision had been construed in a sense adverse to them in earlier proceedings before Walton J, but they had been . .
  • Cited – Celador Productions Ltd -v- Melville ChD (Bailii, [2004] EWHC 2362 (Ch))
    The applicants each alleged breach of copyright and misuse of confidential information in the format of the television program ‘Who wants to be a Millionaire’. The defendant appealed a refusal to strike out the claim. It was not contended that no . .
  • Cited – Blackburn Chemicals Ltd -v- Bim Kemi Ab CA (Bailii, [2004] EWCA Civ 1490, Times 22-Nov-04)
    The parties entered into exclusive cross marketing agreements. The defendant resisted enforcement of the contract saying it was void under European law, being contrary to Article 81. The parties were alleged to have agreed to make cross purchases. . .
  • Cited – John Edwin Berry -v- Post Office Investigation Department CA (Bailii, [1996] EWCA Civ 926)
    The claimant’s property was raided twice, and stamps removed. The first search led to charges which were dropped. He sought the return of all the property removed. In later proceedings it was said that a new claim was being made which was res . .
  • Cited – Hormel Foods Corporation -v- Antilles Landscape Investments NV ChD (Times 28-Feb-05, [2005] RPC 28, [2005] EWHC 13 (Ch),)
    The claimant had alread challenged the validity of the defendant’s registered trade mark, but sought to do so now on grounds which could have been advanced in the earlier case. The claimant owned the trade mark ‘SPAM’ for canned meats, and the . .
  • Cited – Phipps, Regina -v- CACD (Bailii, [2005] EWCA Crim 33)
    The appellant had been convicted of driving with excess alcohol. After complaints by the injured victim’s family he was further prosecuted for dangerous driving. He now appealed his conviction, having pleaded guilty when the judge failed to find an . .
  • Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
    The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
  • Cited – Dallal -v- Bank Mellat ([1986] 1 QB 441)
    Any choice of international law to govern an agreement to arbitrate should be express. . .
  • Cited – Coulter -v- Chief Constable of Dorset Police CA (Bailii, [2005] EWCA Civ 1113, [2005] 1 WLR 130)
    An appeal was made against an order refusing to set aside a second statutory demand. The demand was to enforce payment of an order for costs made in proceedings between the parties. The first statutory demand had been upheld, and the judge found . .
  • Cited – Ganesmoorthy -v- Ganesmoorthy CA (Bailii, [2002] EWCA Civ 1748, [2003] 3 FCR 167)
    The parties had divorced. The wife alleged a serious assault against her husband, and instructed a claims firm to recover damages from him. Her ancillary relief claim in the divorce was compromised with her having sought to rely upon the assault, . .
  • Cited – Heffernan and Another -v- Grangewood Securities Ltd CA (Bailii, [2001] EWCA Civ 1082)
    Redemption action. . .
  • Cited – Vervaeke -v- Smith HL ([1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855)
    A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was . .
  • Cited – McBride -v- The Body Shop International Plc QBD (Bailii, [2007] EWHC 1658 (QB))
    The claimant sought damages for libel in an internal email written by her manager, accusing her of being a compulsive liar. The email had not been disclosed save in Employment Tribunal proceedings, and the claimant sought permission to use the email . .
  • Cited – Anyanwu and Another -v- South Bank Student Union and Another HL (Times 27-Mar-01, Gazette 24-May-01, House of Lords, Bailii, [2001] ELR 511, [2001] UKHL 14, [2001] 2 All ER 353, [2001] 1 WLR 638, [2001] ICR 391, [2001] IRLR 305, [2001] Emp LR 420)
    The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
    Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
  • Cited – Munir -v- Jang ([1989] ICR 1)
    The doctrine of issue estoppel applies in Industrial Tribunal cases. . .
  • Cited – Divine-Bortey -v- London Borough of Brent CA (Bailii, Bailii, Bailii, [1998] EWCA Civ 830, [1998] EWCA Civ 831, [1998] EWCA Civ 832)
    The claimant had brought and lost an action relating to his dismissal by the defendant, who now appealed against an order that he was not estopped from bring a second claim on a different basis namely race discrimination, disapplying the rule in . .
  • Cited – Dimtsu -v- Westminster City Council EAT ([1991] IRLR 450)
    The EAT considered the application of the rule in Henderson v Henderson in Employment Appeal Tribunal proceedings.
    Knox J said: ‘The majority is fortified in the view expressed so far by three further considerations. First, this jurisdiction . .
  • Cited – Campbell -v- Leeds United Association Football Misc (Bailii, [2009] EW Misc 4 (EWCC))
    The claimant sought damages for psychiatric injury suffered when working for the defendant who replied that the matter had already been litigated in her claims in the Employment Tribunal, and that a cause of action estoppel applied.
    Held: The . .
  • Cited – Walbrook Trustees (Jersey) Ltd and Others -v- Fattal and Others CA (Bailii, [2009] EWCA Civ 297)
    The parties had been involved in serial disputes regarding the management of leasehold apartments. It was now objected that the current case was an abuse of process.
    Held: The appeal against the stay succeeded. The new case had been flagged up . .
  • Cited – Botham -v- The Ministry of Defence QBD (Bailii, [2010] EWHC 646 (QB))
    The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
  • Cited – Bank of Scotland -v- Hussain and Another ChD (Bailii, [2010] EWHC 2812 (Ch))
    The second defendant had, under the undue influence of the first defendant sold him her house at an undervalue. She also asserted non est factum. He then charged it to the claimant. The court was asked which innocent party should prevail. She said . .
  • Cited – Foster -v- Bon Groundwork Ltd EAT (Bailii, [2011] UKEAT 0382_10_1703)
    EAT PRACTICE AND PROCEDURE – Striking-out/dismissal
    In April 2009, the Claimant, who was then 77 years of age, was employed by the Respondent, when he was laid off without pay. While still being employed by . .
  • Mentioned – Ramzan -v- Brookwide Ltd CA (Bailii, [2011] EWCA Civ 985)
    The defendant had broken through into a neighbour’s flying freehold room, closed it off, and then included it in its own premises for let. It now appealed against the quantum of damages awarded. The judge had found the actions deliberate and with a . .
  • Cited – Personal Representatives of Tang Man Sit -v- Capacious Investments Ltd PC (Gazette 07-Feb-96, Times 26-Dec-95, [1996] AC 514, Bailii, [1995] UKPC 54, [1996] 1 All ER 193, [1996] 2 WLR 192)
    The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
  • Cited – Sarwar -v- The Royal Bank of Scotland Plc (Rev 1) ChD (Bailii, [2011] EWHC 2233 (Ch))
    The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
  • Cited – Hi-Lite Electrical Ltd -v- Wolseley UK Ltd QBD (Bailii, [2009] EWHC 3075 (QB), [2010] BLR 225)
    The claimant sought a contribution from the defendant towards its liability for a fire at its premises, as found in earlier proceedings against the now claimant. The defendant had filed a defence merely not admitting, and not denying, responsibility . .
  • Cited – Bocacina Ltd -v- Boca Cafes Ltd IPEC (Bailii, [2013] EWHC 3090 (IPEC))
    The claimant alleged passing off by the defendant’s use of the name ‘Boca Bistro Cafe’, and subsequently ‘Bica Bistro Cafe’
    Held: Where the defendant had changed its trading style during the proceedings it was possible, if the claimant . .
  • Cited – Gladman Commercial Properties -v- Fisher Hargreaves Proctor and Others CA (Bailii, [2013] EWCA Civ 1466)
    The claimant appealed against the striking out of his claims for fraudulent or negligent misrepresentation as to the suitability for deveopment of two former fire service properties. The court had said that a settlement with co-tortfeasors operated . .
  • Cited – Joint Stock Company (Aeroflot-Russian Airlines) -v- Berezovsky and Another CA (Bailii, [2014] EWCA Civ 20)
    The appellant had judgments obtained in Russia against the respondent. It now appealed against a refusal of enforcement of those judgments based upon the ground that there was a complete defence to the recognition and enforcement of the judgments . .
  • Cited – Virgin Atlantic Airways Ltd -v- Zodiac Seats UK Ltd SC (Bailii, [2013] UKSC 46, [2013] 3 WLR 299, [2014] 1 AC 160, [2013] WLR(D) 265, [2013] RPC 29, [2013] 4 All ER 715, Baili Summary, WLRD, UKSC 2010/0013, SC Summary, SC)
    Virgin Atlantic Airways Ltd sought to recover damages exceeding £49,000,000 for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
  • Cited – Starlight Shipping Co -v- Allianz Marine & Aviation Versicherungs Ag and Others CA (Bailii, [2012] EWCA Civ 1714, [2013] ILPr 15, [2013] 1 Lloyd’s Rep 217, [2013] 1 All ER (Comm) 1297, [2013] 1 CLC 123)
    The Alexander T, owned by the appellant and insured by the respondents was a total loss. The insurers resisted payment, the appellant came to allege improperly, and the parties had settled the claim on full payment under a Tomlin Order. The owners . .
  • Cited – David T Morrison & Co Ltd (T/A Gael Home Interiors) -v- ICL Plastics Ltd and Others SC (Bailii, [2014] UKSC 48, 2014 GWD 25-5, 2014 SLT 791, Bailii Summary, UKSC 2013/0104, SC, SC Summary)
    The claimant sought damages after an explosion at the defender’s nearby premises damaged its shop. The defender said that the claim was out of time, and now appealed against a decision that time had not begun to run under the 1973 Act.
    Held: . .

Last Update: 09-Oct-15 Ref: 179857

Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Abdul Fattah Sulaiman Khaled Al Bader; Hassan Ali Hassan Qabazard; Timothy St John Stafford and H Clarkson and Company Limited; Hugh O’Neill Mccoy; Kuwait Petroleum Corporation and Sheikh Ali Kh: CA 18 May 2000

References: Times 30-May-00, Gazette 08-Jun-00, [2000] 2 All ER Comm 271, [2000] EWCA Civ 160
Links: Bailii
Coram: Nourse LJ
The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure by unlawful means required proof of the nature of the agreement, the means alleged, the unlawful acts causing loss, and that each such act was part of the agreed purpose. The actual intent to cause injury need not be predominant.
The court defined two types of conspiracy to injure, namely conspiracy to injure by lawful means and conspiracy to injure by unlawful means: ‘A conspiracy to injure by lawful means is actionable where the claimant proves that he has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him, where the predominant purpose is to injure the claimant.
A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.’
This case cites:

This case is cited by:

  • Cited – Lesotho Highlands Development Authority -v- Impregilo Spa and others CA (Bailii, [2003] EWCA Civ 1159, Times 15-Sep-03, Gazette 16-Oct-03, [2003] BLR 347, [2004] 1 All ER (Comm) 97, [2003] 2 Lloyd’s Rep 497)
    The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest . .
  • Cited – Is Innovative Software Ltd -v- Howes CA (Bailii, [2004] EWCA Civ 171, Times 10-Mar-04, Bailii, [2004] EWCA Civ 275, Gazette 01-Apr-04)
    It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
    Held: The advantage of the court . .
  • Cited – Mahonia Limited -v- JP Morgan Chase Bankwest Lb Ag QBD ([2004] EWHC 1938 (Comm), Bailii)
    The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
  • Cited – Douglas and others -v- Hello! Ltd and others (No 3) CA (Bailii, [2005] EWCA Civ 595, Times 24-May-05, [2005] 4 All ER 128, [2005] 3 WLR 881, [2006] QB 125)
    The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
  • Cited – Meretz Investments Nv and Another -v- ACP Ltd and others ChD (Bailii, [2006] EWHC 74 (Ch), Times 27-Apr-06, [2007] Ch 197, [2006] 2 P & CR 23, [2006] 3 All ER 1029, [2006] 6 EGCS 170, [2007] 2 WLR 403)
    The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
    Held: The . .
  • Cited – Total Network Sl -v- Customs & Excise Commissioners CA (Bailii, [2007] EWCA Civ 39, [2007] 2 WLR 1156)
    The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
  • See Also – Kuwait Oil Tanker Company Sak and Another -v- Al Bader and others ComC (Bailii, [2008] EWHC 2432 (Comm))
    The claimants had succeeded in an action based on fraud, and now sought to enforce their judgment. . .
  • Cited – Digicel (St Lucia) Ltd and Others -v- Cable & Wireless Plc and Others ChD (Bailii, [2010] EWHC 774 (Ch))
    The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
  • Cited – Law Society of England & Wales -v- Isaac & Isaac International Holdings Ltd and Others ChD (Bailii, [2010] EWHC 1670 (Ch))
    . .

Reardon Smith Line Ltd v Yngvar Hansen-Tangen (The Diana Prosperity”): HL 1976″

References: [1976] 1 WLR 989, [1976] 2 Lloyd’s Rep 621, [1976] 3 All ER 570
Coram: Lord Wilberforce
In construing a contract, three principles can be found. The contextual scene is always relevant. Secondly, what is admissible as a matter of the rules of evidence under this heading is what is arguably relevant, but admissibility is not decisive. The real issue is what evidence of surrounding circumstances may ultimately be allowed to influence the question of interpretation. That depends on what meanings the language read against the objective contextual scene will let in. Thirdly, the enquiry is objective: the question is what reasonable persons, circumstanced as the actual parties were, would have had in mind.
Lord Wilberforce commented on the Wooler case saying: ‘I think that all of their Lordships are saying, in different words, the same thing — what the court must do must be to place itself in thought in the same factual matrix as that in which the parties were’.
Lord Wilberforce said: ‘No contracts are made in a vacuum: there is always a setting in which they have to be placed. The nature of what is legitimate to have regard to is usually described as ‘the surrounding circumstances’ but this phrase is imprecise: it can be illustrated but hardly defined. In a commercial contract it is certainly right that the court should know the commercial purpose of the contract and this in turn presupposes knowledge of the genesis of the transaction, the background, the context, the market in which the parties are operating.’
This case cites:

  • Explained – Charrington & Co Ltd -v- Wooler HL ([1914] AC 71)
    The court is entitled to know the surrounding circumstances which prevailed when the contract was made. A contract is not to be construed in a vacuum. The term ‘market’ did not have a ‘fixed legal significance’ .
    Lord Dunedin said: ‘in order to . .

This case is cited by:

  • Cited – Wilson -v- Secretary of State for Trade and Industry; Wilson -v- First County Trust Ltd (No 2) HL (House of Lords, Gazette 18-Sep-03, Times 11-Jul-03, Bailii, [2003] UKHL 40, [2003] 3 WLR 568, [2004] 1 AC 816, [2003] 2 All ER (Comm) 491, [2003] HRLR 33, [2003] UKHRR 1085, [2003] 4 All ER 97)
    The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
  • Cited – Mannai Investment Co Ltd -v- Eagle Star Assurance HL (Times 26-May-97, House of Lords, Bailii, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122)
    Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
  • Cited – Westminster City Council -v- National Asylum Support Service HL (House of Lords, Times 18-Oct-02, Bailii, [2002] UKHL 38, [2002] 1 WLR 2956, [2002] 4 All ER 654, [2002] HLR 58, (2002) 5 CCL Rep 511, [2003] BLGR 23)
    The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
    Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
  • Cited – Investors Compensation Scheme Ltd -v- West Bromwich Building Society HL (Times 24-Jun-97, House of Lords, Bailii, [1997] UKHL 28, [1998] 1 All ER 98, [1998] 1 WLR 896, [1998] AC 896)
    The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
    Held: Investors having once . .
  • Cited – Youell and Others -v- Bland Welch & Co Ltd and Others CA ([1992] 2 Lloyd’s Rep 127)
    The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
    Held: Staughton LJ: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, that . .
  • Cited – Bruton -v- London and Quadrant Housing Trust HL (Gazette 14-Jul-99, Times 25-Jun-99, Gazette 21-Jul-99, House of Lords, Bailii, [1999] 3 All ER 481, [2000] 1 AC 406, [1999] UKHL 26, [1999] 2 EGLR 59, [1999] 3 WLR 150, [1999] EG 90, [1999] L & TR 469, (1999) 31 HLR 902, [1999] NPC 73, [1999] 30 EG 91, (1999) 78 P & CR D21)
    The claimant sought to oblige the respondent to repair his flat under the 1988 Act. The respondent replied that the arrangement was a licence only, and not protected under the Act.
    Held: The housing association had a temporary licence to . .
  • Cited – Catnic Components Ltd & Another -v- Hill & Smith Ltd HL ([1983] FSR 512, [1982] RPC 183)
    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, . .
  • Cited – Kirin-Amgen Inc and others -v- Hoechst Marion Roussel Limited and others etc HL (House of Lords, [2004] UKHL 46, Bailii, [2005] RPC 169, (2005) 28(7) IPD 28049, [2005] 1 All ER 667)
    The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
    Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
  • Cited – McDowall -v- Inland Revenue SCIT (Bailii, [2003] UKSC SPC00382)
    Gifts had been made from an estate, purportedly under a power of attorney. During his lifetime, the deceased had made various gifts to his children. As he begand to suffer Alzheimers, he gave a power of attorney. He had substantial assets, well . .
  • Cited – Barclays Bank Plc -v- Weeks Legg & Dean (a Firm); Barclays Bank Plc -v- Lougher and Others; Barclays Bank Plc -v- Hopkin John & Co CA (Gazette 28-May-98, Gazette 24-Jun-98, Times 15-Jun-98, Bailii, [1998] EWCA Civ 868, [1998] 3 All ER 213, [1999] QB 309)
    The defendant solicitors had each acted for banks in completing charges over property. They had given the standard agreed form of undertaking to secure a good and marketable title, and the banks now alleged that they were in breach because . .
  • Cited – Crancour Ltd -v- Da Silvaesa and Another CA (Bailii, [1986] EWCA Civ 1, [1986] 1 EGLR 80, [1986] 52 P&CR 204, [1986] 18 HLR 265, [1986] 278 EG 618)
    The plaintiff sought possession of two rooms in a house occupied by the defendants separately. The agreements stated that they were licences. The agreements excluded the occupiers between 10:30am and noon on each day. The occupiers claimed to be . .
  • Cited – Persimmon Homes (South Coast) Ltd -v- Hall Aggregates (South Coast) Ltd and Another TCC (Bailii, [2008] EWHC 2379 (TCC))
    The parties had agreed for the sale of land under an option agreement. The builder purchasers now sought to exercise rights to adjust the price downwards.
    Held: The provisions had been intended and had achieved a prompt and binding settlement . .
  • Cited – Islam, Regina -v- HL (Bailii, [2009] UKHL 30, Times, [2009] 3 WLR 1)
    The defendant appealed against a confiscation order saying that it should not have been set at values which reflected the black market value of the drugs he had imported.
    Held: The appeal failed. The court could take account of the illegal . .
  • Cited – Berrisford -v- Mexfield Housing Co-Operative Ltd SC ([2011] NPC 115, [2011] 46 EG 105, [2011] 3 WLR 1091, Bailii, [2011] UKSC 32, Bailii Summary, UKSC 2010/0167, SC Summary, SC)
    The tenant appealed against an order granting possession. The tenancy, being of a mutual housing co-operative did not have security but was in a form restricting the landlord’s right to recover possession, and the tenant resisted saying that it was . .
  • Cited – Marley -v- Rawlings and Another SC (Bailii, [2014] UKSC 2, [2014] 2 WLR 213, [2014] WTLR 299, 16 ITELR 642, [2014] 1 All ER 807, [2014] WLR(D) 18, [2014] Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057, SC Summary, SC)
    A husband and wife had each executed the will which had been prepared for the other, owing to an oversight on the part of their solicitor; the question which arose was whether the will of the husband, who died after his wife, was valid. The parties . .

Regina v Secretary of State for the Home Department ex parte Razgar etc: HL 17 Jun 2004

References: [2004] UKHL 27, [2004] 3 WLR 58, Times 21-Jun-04, [2004] 2 AC 369, [2004] 3 All ER 821, [2004] INLR 349
Links: House of Lords, Bailii
Coram: Lord Bingham of Cornhill, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
The claimant resisted removal after failure of his claim for asylum, saying that this would have serious adverse consequences to his mental health, infringing his rights under article 8. He appealed the respondent’s certificate that his claim was manifestly unfounded.
Held: Mental health was part of the respect for private life protected by article 8. Where it was forseeable that a claimant’s health would be damaged by a removal, then article 8 could be engaged. Henao’s case had not been argued under article 8. Decisions made within the procedures would only rarely be non-compliant with Human Rights law, and exceptions could only be identified individually. Here, the Home Secretary’s could not properly certify that the claim was manifestly unfounded.
Statutes: European Convention on Human Rights 8, Immigration and Asylum Act 1999 72(2)(a)
This case cites:

This case is cited by:

  • Cited – Regina -v- Special Adjudicator ex parte Ullah; Regina -v- Secretary of State for the Home Department HL (House of Lords, [2004] UKHL 26, Bailii, Times 18-Jun-04, [2004] 3 WLR 23, [2004] 2 AC 323, [2004] INLR 381, [2004] UKHRR 995, [2004] 3 All ER 785)
    The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
  • Cited – Michael Atkinson -v- Secretary of State for the Home Department CA (Bailii, [2004] EWCA Civ 846, Times 20-Jul-04)
    The applicant sought judicial review of the respondent’s certification under s94 that his cliam for asylum was hopeless. He said that he had acted as an informer against criminal gangs in Jamaica, and that the state of Jamacia could not provide him . .
  • Cited – Government of the United States of America -v- Barnette and Montgomery (No 2) HL (House of Lords, Bailii, [2004] UKHL 37, [2004] 4 All ER 289, [2004] 1 WLR 2241)
    The applicant sought to resist orders for the return to the US of what were alleged to be the proceeds (direct or indirect) of a fraud committed there. She had been in contempt of the court in the US and was a fugitive here. She complained that the . .
  • Cited – Regina (G) -v- Secretary of State for the Home Department CA (Times 05-May-05)
    The claimant had first sought asylum saying she was born in 1984. On being refused, she said she was born in 1988 and was only 15 years old, and that her removal and return to Somalia would breach the regulation, and interfere with her right to . .
  • Cited – Countryside Alliance and others -v- HM Attorney General and others Admn (Bailii, [2005] EWHC 1677 (Admin), Times 03-Aug-05, [2006] EuLR 178)
    The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
  • Cited – Bermingham & others -v- The Director of the Serious Fraud Office QBD (Bailii, [2006] EWHC 200 (Admin), Times 24-Feb-06, [2006] 3 All ER 239, [2007] QB 727, [2006] UKHRR 450, [2006] ACD 55, [2007] 2 WLR 635)
    The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
    Held: The Director . .
  • Cited – Regina -v- Liliane Makuwa CACD (Bailii, [2006] EWCA Crim 175, Times 28-Apr-06)
    The defendant appealed her conviction for using a false instrument (a passport) intending someone else to accept it as genuine.
    Held: Once she had brought forward sufficient evidence to support a claim to asylum status, it was then for the . .
  • Cited – Huang -v- Secretary of State for the Home Department HL (Bailii, [2007] UKHL 11, [2007] 2 AC 167, [2007] 2 WLR 581, [2007] 4 All ER 15, (2007) 24 BHRC 74, [2007] INLR 314, [2007] UKHRR 759, [2007] 1 FLR 2021, [2007] Imm AR 571, [2007] Fam Law 587, [2007] HRLR 22)
    The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
  • Cited – EB (Kosovo) -v- Secretary of State for the Home Department HL (Bailii, [2008] UKHL 41, [2008] 3 WLR, Times 30-Jun-08, HL, [2009] 1 AC 1159, [2008] UKHRR 1087, (2008) 25 BHRC 228, [2008] Imm AR 713, [2008] INLR 516, [2008] HRLR 40, [2008] 4 All ER 28)
    The claimant arrived as a child from Kosovo in 1999. He said that the decision after so long, it would breach his human rights now to order his return.
    Held: The adjudicator had failed to address the effect of delay. That was a relevant . .
  • Cited – G, Regina (on the Application of) -v- Nottinghamshire Healthcare NHS Trust Admn (Bailii, [2008] EWHC 1096 (Admin), Times 28-May-08)
    The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
    Held: The claim failed. The legislative objectives were sufficiently serious to . .
  • Cited – Rainford, Regina (on the Application of) -v- Secretary of State for the Home Department Admn (Bailii, [2008] EWHC 2474 (Admin))
    The claimant had been in England since he was 11, and was now 38. He had been repeatedly convicted. He had challenged a deportation notice on a human rights basis. He now challenged a certificate that this claim was manifestly ill founded.
  • Cited – EM (Lebanon) -v- Secretary of State for the Home Department HL (Bailii, [2008] UKHL 64, Times, [2008] 3 WLR 931, HL, [2009] HRLR 6, [2009] AC 1198, [2009] 1 FCR 441, [2009] 1 All ER 559, [2009] UKHRR 22, [2008] Fam Law 1190, [2008] 2 FLR 2067)
    The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
    Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and Another QBD (Bailii, [2008] EWHC 2565 (QB), Times)
    The applicant suffered mutiple sclerosis and considered that she might wish to go abroad to end her life. She asked the court to make more clear the guidance provided by the Director as to whether her partner might be prosecuted under section 2(1) . .
  • Cited – RG (Suicide, Risk, Razgar Considered) Sri Lanka IAT (Bailii, [2005] UKIAT 00072)
    . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and Another Admn (Bailii, [2008] EWHC 2565 (Admin), (2008) 104 BMLR 231, [2009] HRLR 7, [2009] UKHRR 94)
    The applicant said that the defendant had unlawfully failed to provide detailed guidance under section 10 of the 1985 Act, on the circumstances under which a prosecution might lie of a person performing acts which might assist another to commit . .
  • Cited – ZT (Kosovo) -v- Secretary of State for the Home Department HL (Bailii, [2009] UKHL 6, HL, Times, [2009] 1 WLR 348, [2009] INLR 310, [2009] 3 All ER 976)
    The claimant sought asylum. The respondent on her appeal certified that the claim was clearly unfounded. The House was asked how further submissions might be made and what approach should be taken on a request for judicial review of such a decision. . .
  • Cited – Purdy, Regina (on the Application of) -v- Director of Public Prosecutions and others CA (Bailii, [2009] EWCA Civ 92, Times, [2009] 1 Cr App R 32, (2009) 159 NLJ 309, [2009] WLR (D) 62, WLRD, (2009) 106 BMLR 170, [2009] UKHRR 1005)
    The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
  • Cited – N, Regina (on the Application of) -v- Secretary of State for Health; Regina (E) v Nottinghamshire Healthcare NHS Trust CA (Bailii 24-Jul-09, [2009] EWCA Civ 795, Times, [2009] HRLR 31)
    The claimants appealed against the imposition on them of smoking bans while they were compulsorily detained at Rampton Hospital. They said that other persons detained for example in prisons had been exempted fully.
    Held: The right or freedom . .
  • Cited – Norris -v- Government of United States of America SC (Bailii, [2010] UKSC 9, Times, UKSC 2009/0052, SC, SCSumm, [2010] 2 All ER 267, [2010] 2 WLR 572, [2010] Lloyd’s Rep FC 325, Bailii Summary, [2010] 2 AC 487)
    The defendant faced extradition to the USA on charges of the obstruction of justice. He challenged the extradition on the basis that it would interfere with his article 8 rights to family life, given that the offence was merely ancillary, the result . .
  • Cited – Quila and Another, Regina (on The Application of) -v- Secretary of State for The Home Department SC (SC, SC Summ, UKSC 2011/0022, Bailii Summary, Bailii, [2011] UKSC 45, [2012] 1 All ER 1011, [2011] 3 WLR 836, [2012] Imm AR 135, [2012] 1 FLR 788, [2011] UKHRR 1347, [2012] Fam Law 21, [2011] 3 FCR 575, [2011] INLR 698, [2012] 1 AC 621, [2012] HRLR 2)
    Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
  • Cited – HH -v- Deputy Prosecutor of The Italian Republic, Genoa SC (Bailii, [2012] UKSC 25, [2012] 3 WLR 90, Bailii Summary, SC Summary, SC, UKSC 2011/0128, [2013] 1 AC 338, [2012] HRLR 25, [2012] 4 All ER 539)
    In each case the defendant sought to resist European Extradition Warrants saying that an order would be a disporportionate interference in their human right to family life. The Court asked whether its approach as set out in Norris, had to be amended . .
  • Cited – Zoumbas -v- Secretary of State for The Home Department SC (Bailii, [2013] UKSC 74, [2013] 1 WLR 3690, [2014] 1 All ER 638, [2013] WLR(D) 458, [2014] Imm AR 479, [2014] INLR 262, [2014] 1 FCR 141, 2014 SC (UKSC) 75, WLRD, Bailii Summary, UKSC 2013/0100, SC Summary, SC)
    The appellant challenged a decision that he did not qualify for asylum or humanitarian protection and that his further representations were not a fresh human rights claim under paragraph 353 of the Immigration Rules. He argued that the return to the . .

Curtis v Perry; 10 Mar 1802

References: (1802) 6 Ves 739, [1802] EngR 125, (1802) 6 Ves Jun 739, (1802) 31 ER 1285
Links: Commonlii
Coram: Lord Eldon
Ratio Ships had been purchased by a partnership, but were then held seperately in the name of one of them. Only later were they included within the partnership acounts, but the separate registrations were maintained, and unlawfully so so as to avoid them being traced. The other partner had been a member of parliament, and would have been pennalised if he had been party to transactions with the government. On his death, his estate claimed an interest in the ships.
Held: The plaintiff failed to recover. Equity will assist neither party to an illegal transaction.
Lord Eldon said:’The reason for waiving any right Chiswell had in consequence of the manner, in which Nantes made this purchase, the object of keeping the ships registered in the name of Nantes, was, that a profit might be made by the employment of them in contracts with Government; and Chiswell was a Member of Parliament; who, the law says , shall not be a contractor. The moment the purpose to defeat the policy of the law by fraudulently concealing, that this was his property, is admitted, it is very clear, he ought not to be heard in this Court to say, that is his property.’
This case is cited by:

  • Cited – Bowmakers Ltd -v- Barnet Instruments Ltd CA ([1945] KB 65)
    An action was brought for the wrongful conversion of machine tools delivered under hire purchase agreements which contravened wartime statutory orders. The plaintiff established its legal title to the goods at issue without relying upon the illegal . .
  • Cited – Tinsley -v- Milligan HL (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)
    Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
  • Cited – Costello -v- Chief Constable of Derbyshire Constabulary CA (Bailii, [2001] EWCA Civ 381, [2001] 1 WLR 1437, [2001] 2 Lloyd’s Rep 216, [2001] 3 All ER 150)
    The police seized a car from Mr Costello, believing that it was stolen. The seizure was lawful at the time, by virtue of section 19 of PACE. The police never brought any criminal proceedings against Mr Costello, but they refused to return the car to . .

(This list may be incomplete)

Last Update: 25-Mar-16
Ref: 194099

Martin v Watson: HL 14 Jul 1995

References: Times 14-Jul-1995, Gazette 06-Sep-1995, Independent 19-Jul-1995, [1996] AC 74, [1995] 3 WLR 318, [1995] 3 All ER 559
Coram: Lord Keith of Kinkel
Ratio The plaintiff had been falsely reported to the police by the defendant, a neighbour, for indecent exposure whilst standing on a ladder in his garden. He had been arrested and charged, but at a hearing before the Magistrates’ Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. He appealed against the decision that he could not claim in malicious prosecution.
Held: The appeal succeeded, though there was no English authority on the topic. Since the facts relating to the alleged offence were solely within the complainant’s knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had ‘in substance procured the prosecution’. The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation.
The tort of malicious prosecution can be committed by a informer knowingly and maliciously laying a false complaint to the police. The actions taken by the police are insufficient intervention to interfere with that liability. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause, and (4) that it was malicious.
Ratio Lord Keith said: ‘It is common ground that the ingredients of the tort of malicious prosecution are correctly stated in Clerk & Lindsell on Torts ‘In action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; and thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious.” and ‘The essential feature of malicious prosecution is an abuse of the process of the Court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law.’
and ‘Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant.’
Ratio Lord Keith also said: ‘Analogies were sought to be drawn with the immunity afforded in respect of evidence given in a court of law, which extends also to statements made to solicitors engaged in preparation for pending proceedings: Watson v M’Ewan . . No such analogy is, however, helpful. The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law. That was held in Roy v Prior [1971] A.C. 470 in relation to an action for malicious arrest . .
Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice.’
This case cites:

  • Cited – Roy -v- Prior HL ([1971] AC 470, [1970] 2 All ER 729)
    The court considered the tort of maliciously procuring an arrest.
    Held: Police officers are given a general immunity against suit, in respect of matters occuring at court, to avoid repeated actions challenging their evidence.
    Lord . .
  • Appeal from – Martin -v- Watson CA (Gazette 23-Mar-94, Times 27-Jan-94, Independent 26-Jan-94, [1994] 2 WLR 500, [1994] QB 425, [1994] 2 All ER 606)
    The claimant sought damages for malicious prosecution, saying that the defendant had made a complaint to the police knowing it to be false that the claimant had indecently exposed himself. Acting on the complaint the police had arrested and charged . .
  • Cited – Watson -v- M’Ewan HL ([1905] AC 480, [1905] UKHL 1, Bailii, (1905) 13 SLT 340, (1905) 7 F (HL) 109)
    A claim was brought against a medical witness in respect of statements made in preparation of a witness statement and similar statements subsequently made in court. The appellant was a doctor of medicine who had been retained by the respondent in . .

(This list may be incomplete)
This case is cited by:

  • Cited – Keegan and Others -v- Chief Constable of Merseyside CA (Bailii, [2003] EWCA Civ 936, Times 17-Jul-03, Gazette 11-Sep-03, [2003] 1 WLR 2187)
    The police had information suggesting (wrongly) that a fugitive resided at an address. An armed raid followed, and the claimant occupant sought damages.
    Held: The tort of malicious procurement of a search warrant required it to be established . .
  • Cited – Sinclair -v- Chief Constable of West Yorkshire and British Telecommunications Plc CA (Bailii, [2000] EWCA Civ 319)
    The claimant had been prosecuted, but the charge was dismissed as an abuse of process. He now appealed a strike out of his civil claim for damages for malicious prosecution.
    Held: The appeal failed. The decision to dismiss the criminal charge . .
  • Cited – Mahon, Kent -v- Dr Rahn, Biedermann, Haab-Biedermann, Rahn, and Bodmer (a Partnership) (No 2) CA (Times 14-Jun-00, Gazette 29-Jun-00, Bailii, [2000] EWCA Civ 185, [2000] 1 WLR 2150, [2000] EMLR 873, [2000] Po LR 210, [2000] 2 All ER (Comm) 1, [2000] 4 All ER 41)
    The defendant’s lawyers wrote to a financial services regulatory body investigating the possible fraudulent conduct of the plaintiff’s stockbroking firm. The letter was passed to the Serious Fraud Office who later brought criminal proceedings . .
  • Cited – Westcott -v- Westcott QBD (Bailii, [2007] EWHC 2501 (QB))
    The claimant said that his daughter in law had defamed him. She answered that the publication was protected by absolute privilege. She had complained to the police that he had hit her and her infant son.
    Held: ‘the process of taking a witness . .
  • Cited – Mckie -v-Strathclyde Joint Police Board and others SCS (ScotC, Bailii, [2003] ScotCS 353)
    . .
  • Cited – Gregory -v- Portsmouth City Council CA (Times 26-Nov-97, Gazette 03-Dec-97, Bailii, [1997] EWCA Civ 2645)
    The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
    Held: The categories of malicious prosecution are closed, and it was . .
  • Leading Case – Westcott -v- Westcott CA (Bailii, [2008] EWCA Civ 818, Times 27-Aug-08, [2009] QB 407, [2009] 2 WLR 838, [2009] 1 All ER 727, [2009] EMLR 2)
    The defendant was the claimant’s daughter in law. In the course of a bitter divorce she made allegations to the police which were investigated but did not lead to a prosecution. The claimant appealed dismissal of his claim for defamation on the . .
  • Cited – Alford -v- Cambridgeshire Police CA (Bailii, [2009] EWCA Civ 100)
    The claimant police officer had been held after an accident when he was in a high speed pursuit of a vehicle into the neighbouring respondent’s area. The prosecution had been discontinued, and he now appealed against rejection of his claims for . .
  • Cited – Hunt -v- AB CA (Bailii, [2009] EWCA Civ 1092, Times)
    The claimant sought damages from a woman in malicious prosecution, saying that she had made a false allegation of rape against him. He had served two years in prison.
    Held: The claim failed. A complainant is not a prosecutor, and is not liable . .
  • Cited – The Ministry of Justice (Sued As The Home Office) -v- Scott CA (Bailii, [2009] EWCA Civ 1215)
    The claimant had been falsely accused of assault by five prison officers. The defendant appealed against a refusal to strike out a claim of of malicious prosecution.
    Held: Proceedings for malicious prosecution cannot be regarded as being . .
  • Cited – Silcott -v- Commissioner of Police of the Metropolis CA (Times 09-Jul-96, [1996] 8 Admin LR 633, Bailii, [1996] EWCA Civ 1311)
    The claimant had been convicted of the murder of PC Blakelock. The only substantial evidence was in the form of the notes of interview he said were fabricated by senior officers. His eventual appeal on this basis was not resisted. He now appealed . .
  • Cited – Gregory -v- Portsmouth City Council HL (Times 02-Feb-00, Gazette 10-Feb-00, House of Lords, Bailii, [2000] UKHL 3, [2000] 1 AC 419, [2000] 1 All ER 560, [2000] 1 WLR 306, [2000] BLGR 203, [2000] Po LR 3, (2000) 2 LGLR 667)
    Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
  • Cited – Howarth -v- Gwent Constabulary and Another QBD (Bailii, [2011] EWHC 2836 (QB))
    The claimant alleged malicious prosecution and misfeasance in public office against the defendant. He had been charged with perverting the course of justice. He had worked for a firm of solicitors specialising in defending road traffic prosecutions. . .
  • Cited – Commissioner of Police of The Metropolis -v- Copeland CA (Bailii, [2014] EWCA Civ 1014)
    The defendant appealed against the award of damages for assault, false imprisonment and malicious prosection, saying that the question posed for the jury were misdirections, and that the jury’s decision was perverse. The claimant was attending the . .

(This list may be incomplete)

Last Update: 05-May-16
Ref: 83445