Month: July 2015

Windows ‘R’ Us (Trade Mark: Inter Partes): IPO 8 Aug 2006

References: [2006] UKIntelP o22406
Links: Bailii
Coram: Mrs J Pike
ICO Section 5(2)(b): Invalidity action failed. Section 5(3): Invalidity action failed
Section 5(4)(a): Invalidity action failed. Section 56(2): Invalidity action failed
The applicant in these proceedings is the owner of a number of registered marks (UK & CTM) such as TOYS’R’US, MUMS’R’US, BABIES’R’US, ‘R’US etc in a range of classes. It also claimed extensive user of its marks, particularly TOYS ‘R’ US, but the evidence filed to support this claim was not well focused. In its evidence it also provided brief details of a number of disputes where a decision had been in its favour.
In these proceedings the registered proprietor did not respond to the filing of the application for invalidity.
Under Section 5(2)(b) the Hearing Officer accepted that there was some similarity between the respective marks because of the presence of the element ‘R’US but he was unable to find any goods of services within the applicant’s specifications which were identical or similar to the building elements in the registered proprietor’s Class 19 registration. He, therefore, went on to find that the applicant failed on this ground.
As regards the ground under Section 5(3) the Hearing Officer noted that the applicant had supplied very limited information about the extent of its reputation in the UK. However, even if he accepted that it had the necessary reputation in its mark TOYS’R’US, which he knew was likely to be the case from his own knowledge, he considered that there were considerable differences between the respective marks and bearing in mind the differences in the respective goods, he did not see that there was any likelihood that the registered proprietor would gain an unfair advantage or that there would be any detriment to the reputation of the applicant’s mark. The applicant thus failed on this ground.
The applicant also failed on the grounds under Sections 5(4)(a) and 56(2) because the Hearing Officer was of the view that its case was no stronger in respect of these grounds as compared to the other grounds dealt with above.
Statutes: Trade Marks Act 1994 5(2)(b)

Fonecomp Ltd v HMRC; UTTC 5 Dec 2013

References: [2013] UKUT 599 (TCC), [2014] STC 956, [2014] BVC 502
Links: Bailii
UTTC VAT – MTIC fraud – (1) whether First-tier Tribunal erred in law in applying the Kittel principle as interpreted by the court of appeal in Mobilx – whether that interpretation is open to doubt by subsequent CJEU judgments – Mahageben and David; Toth; Bonik; LVK-56 – no – (2) whether conclusions drawn by First-tier Tribunal from its findings of fact were irrational – no – appeal dismissed and application for reference to CJEU refused

Gateshead Talmudical College v HMRC; UTTC 15 Apr 2011

References: [2011] UKUT 131 (TCC)
Links: Bailii
UTTC INPUT TAX – Capital goods scheme – Adjustment – Decrease in use of capital item in making taxable supplies – College makes educational supplies – College incurred capital expenditure on building extension to premises – College leased premises to tenant company – Opted to tax premises – College took lease back from tenant company – After initial period tenant company struck off register and lease became bona vacantia – No rent paid after initial period – Whether adjustment to relief for input tax required by change of use – Appeal dismissed – VAT Act 1994 s24(1) and reg 115(2) of Gen Regs

Leeds City Council v HMRC; UTTC 3 Dec 2013

References: [2013] UKUT 596 (TCC), [2014] BVC 501, [2014] STC 789
Links: Bailii
UTTC VALUE ADDED TAX – claim for repayment of VAT – failure of UK to implement Article 4.5 of Sixth VAT Directive – erroneous guidance issued by HMRC – curtailment of limitation period for claims – section 80 VAT Act 1994 – whether compatible with EU legal principles – appeal dismissed

Lord Howard of Henderskelfe (Deceased) v Revenue and Customs; UTTC 11 Mar 2013

References: [2013] UKUT 129 (TCC)
Links: Bailii
UTTC Taxation of Chargeable Gains Act 1992, sections 44 and 45 – whether a valuable painting displayed in Castle Howard was ‘plant’ within section 44(1)(c) of the 1992 Act – whether the painting satisfied the test as to function – whether the painting satisfied the test as to permanence – whether the painting was not plant in the hands of the owner who disposed of it when the business in which the painting was used was not that of the owner of the painting but of a company, Castle Howard Estate Ltd – whether painting a ‘wasting asset’ within section 44 of the 1992 Act – whether owner of painting entitled to exemption from capital gains tax pursuant to section 45(1) of the 1992 Act
Statutes: Taxation of Chargeable Gains Act 1992 44 45

Salomie And Oltean v Directia Generala a Finantelor Publice Cluj: ECJ 9 Jul 2015

References: C-183/14, [2015] EUECJ C-183/14, ECLI:EU:C:2015:454
Links: Bailii
ECJ Judgment – Reference for a preliminary ruling) – Value added tax (VAT) – Directive 2006/112/EC – Articles 167, 168, 179 and 213 – Reclassification by the national tax authority of a transaction as an economic activity subject to VAT – Principle of legal certainty – Principle of protection of legitimate expectations – National legislation making the exercise of the right of deduction subject to the identification of the trader concerned for VAT purposes and to the filing of a tax return in respect of that tax
Statutes: Directive 2006/112/EC

Regina v Durham County Council, ex parte Robinson; 31 Jan 1992

References: Times 31-Jan-1992
Coram: Pill J
The applicant sought to challenge the decision of the local authority to terminate his stallholder’s licence. The parties had agreed that a sufficient element of public law was involved to give the court jurisdiction to review the decision.
Held: It was not open to the parties to create jursidiction for the court. No sufficient element of public law was involved and a review was refused.
This case is cited by:

Cannan v Reynolds; 12 Jun 1855

References: (1855) 5 El & Bl 301, [1855] EngR 585, (1855) 119 ER 493
Links: Commonlii
Coram: Crompton J, Lord Campbell CJ
The Court has jurisdiction to set aside a judgment on the ground of mistake if an application to do so is made within a reasonable time after the judgment has been acted on. ‘the application must be made within a reasonable time after the judgment is acted on; and the only point on which I have had some doubt in the present case is, whether the lapse of time has not been so considerable that it ought in our discretion to be in itself a bar to this application’ and ‘lapse of time becomes after a season a bar, as soon as the Court in its discretion sees that it has been such as must work prejudice.’ and ‘I think that, in the exercise of this discretion, time is of great importance.’
This case is cited by:

Regina v Pitts; 17 Mar 1842

References: [1842] EngR 395 (A), (1842) Car & M 284
Links: Commonlii
Coram: Erskine J
If a person, being attacked, should from an apprehension of immediate violence, an apprehension which must be well grounded and justified by the circumstances, throw himself for escape into a river, and be drowned, the person attacking him is guilty of murder.

Electricity Corporation of New Zealand Ltd v Fletcher Challenge Energy Ltd; 10 Oct 2001

References: [2002] 2 NZLR 433, (2001) 7 NZBLC 103, 477, [2001] NZCA 289
Links: Nzlii
Coram: Richardson P, Thomas J, Keith J, Blanchard J, McGrath J
Court of Appeal of New Zealand
Held: ‘The court has an entirely neutral approach when determining whether the parties intended to enter into a contract. Having decided that they had that intention, however, the court’s attitude will change. It will then do its best to give effect to their intention and, if at all possible, to uphold the contract despite any omissions or ambiguities.’
This case is cited by:

  • Approved – Carlyle (Scotland) -v- Royal Bank of Scotland Plc SC (Bailii, [2015] UKSC 13, Bailii Summary)
    The Court was asked whether, on an objective assessment of a what a developer and the bank had said to each other, the bank intended to enter into a legally binding promise to advance sums in the future to fund not only the developers purchase of . .
  • Cited – Santander (UK) Plc -v- Parker CANI (Bailii, [2015] NICA 41)
    Appeal by Parker against the judgment dismissing Mr Parker’s appeal against the Order of Master Bell refusing a stay on possession by Santander (UK) PLC of the appellant’s dwelling house.
    Held: A promisory note was equivalent to cash, but only . .

Durham Constabulary (Decision Notice): ICO 31 May 2012

References: [2012] UKICO FS50426106
Links: Bailii
ICO The complainant has requested information about any forensic service provider used by the public authority and details of the service provided. The public authority confirmed who the provider was but stated that it did not hold any further information. The complainant asked it to contact the provider and ascertain this information; the public authority advised that it was not required to do so under the FOIA. The Information Commissioner’s decision is that the public authority acted correctly. He does not require the public authority to take any steps.
Section of Act/EIR & Finding: FOI 1 – Complaint Not upheld

Wasif, Regina (on The Application of) v Secretary of State for The Home Department (Rule 34 – ‘Print and Send’) (IJR): UTIAC 30 Apr 2015

References: [2015] UKUT 270 (IAC)
Links: Bailii
Coram: McCloskey J, P UT
UTIAC (i) An application for leave to remain in the United Kingdom must comply with the requirements of paragraph A34 and all material provisions of paragraphs 34A – 34K of the Immigration Rules.
(ii) Between June 2013 and August 2014, Tier 4 applicants had the choice of submitting their applications either on line or by the ‘Print and Send’ mechanism.
(iii) The correct construction of the Rules is as follows:
(a) The first of these options required the submission of the completed application form on line and the provision of supporting documents by post.
(b) The second option, ‘Print and Send’, required the applicant to print the completed application form and send it, with accompanying supporting documents, by post. The ‘Print and Send’ instruction does not amount to an on-line application.
(iv) A failure to comply with the requirements in 34A (per paragraph 34C) invalidates the application.

MGN Ltd v Attard; 19 Oct 2001

References: Unreported, 19 October 2001
Coram: Connell J
Complaint was made about the publication of photographs of the survivor of conjoined twins who was only one year old. The photographs were taken in a street in Malta but followed the earlier publication of photographs and press articles based on interviews which the child’s parents gave in order to raise money for her care.
Held: The photograph constituted at most a minimal breach of the right to privacy given the innocuous nature of the photographs and the fact that they would not enable the reader to make a subsequent identification of the child. The court doubted whether Article. 8 was engaged at all given the public nature of the area where they were taken.
Statutes: European Convention on Human Rights 8
This case is cited by:

  • Cited – Murray -v- Express Newspapers Plc and Another ChD (Bailii, [2007] EWHC 1908 (Ch), Times 04-Oct-07, [2008] 1 WLR 2846)
    The claimant, now aged four and the son of a famous author, was photographed by use of a long lens, but in a public street. He now sought removal of the photograph from the defendant’s catalogue, and damages for breach of confidence.
    Held: The . .
  • Cited – Murray -v- Big Pictures (UK) Ltd; Murray -v- Express Newspapers CA (Bailii, [2008] EWCA Civ 446, [2008] 3 WLR 1360, [2008] HRLR 33, [2008] UKHRR 736, [2008] 2 FLR 599, [2008] 3 FCR 661, [2008] ECDR 12, [2008] EMLR 1, [2008] Fam Law 732, [2009] Ch 481)
    The claimant, a famous writer, complained on behalf of her infant son that he had been photographed in a public street with her, and that the photograph had later been published in a national newspaper. She appealed an order striking out her claim . .

Williams, Executor of Elizabeth Breedon, v Bartholomew; 19 Nov 1798

References: [1798] EngR 237, (1798) 1 Bos & Pul 326, (1798) 126 ER 930 (B)
Links: Commonlii
If A, tenant for life subject to forfeiture, remainder over to B., lease to C. for a term, and afterwards apprehending that he has forfeited, acquiesce in B.’s claiming and receiving the rent from C., his executor may, on shewing that be acquiesced under a false apprehension recover from C. the amount of the rent erroneously paid to B.
This case is cited by:

  • Cited – Doe D Lord -v- Crago CCP ([1848] EngR 487, Commonlii, (1848) 6 CB 90, (1848) 136 ER 1185)
    The lease had been granted for 99 years or until the earlier death of the last of three people. The assignee of the lease stayed in possession long after the death of such survivor, paying the rent as reserved. He said that the lessor had known of . .
  • Cited – Javad -v- Aqil CA ([1991] 1 All ER 243, [1991] 1 WLR 1007, Bailii, [1990] EWCA Civ 1, [1990] 61 P & CR 164, [1990] 41 EG 61)
    A prospective tenant was allowed into possession and then made periodic payments of rent while negotiations proceeded on the terms of a lease to be granted to him. The negotiations broke down.
    Held: The tenant’s appeal failed. It was inferred . .

Williams, Executor of Elizabeth Breedon v Breedon; 19 Nov 1798

References: [1798] EngR 236, (1798) 1 Bos & Pul 329, (1798) 126 ER 932
Links: Commonlii
Where a general verdict has been given on two counts, one of which is bad, and it appears by the Judge’s notes that the jury calculated the damages or evidence applicable to the good count only, the Court will amend the verdict by entering it on that count, though evidence was given applicable to the bad count also.

Smith v Mules; 17 Feb 1852

References: [1852] EngR 271, (1851-1852) 9 Hare 556, (1852) 68 ER 633
Links: Commonlii
A and B and the son of B entered into partnership as solicitors, and by articles agreed that the partners were diligently and faithfully to employ themselves in carrying on and managing all the professional business in which they or either of them might be employed or concerned; that B should use his best endeavours to obtain the appointment of the partnership firm to three offices or clerkships, which were then held by B, and such offices should be partnership appointments; that all other compatible offices should be obtained, if possible, in the name of the firm, and the emoluments treated as part of the profits of the partnership; that, if B or his son should retire, or A or B or his son should die, the share of the deceased partner should accrue to the surviving partners : that if B or his son retired they were to use their best endeavours to secure the practice to the continuing partners, and such retiring partner shouId not practise within 30 miles ; that, if either partner should not diligently and faithfully employ himself in carrying on the said partnership practice, and should, on receiving monies, bills, notes, &c., knowingly or wilfully omit immediately to make entries thereof, or if A. or the son of B should absent himself more than two months in one year, the others or other of the partners, if they or he should think fit, should be at liberty to dissolve the partnership, by giving to the offending partner a notice to that effect, and the partnership should from that time, or the time specified in the notice, be dissolved in the same manner and with the same consequences as if it had determined by the voluntary retirement of the offending partner. B. and his son subsequently prooured their own appointment, or the appointment of one of them, to the offices or clerkships, and did not endeavour to procure the appointment of A. It was afterwards discovered that B. was greatly involved in debt, and he absconded in January 1849, and did not return to the business, In May 1849 A, served a notice, in the manner pointed out by the articles, on B. and his son to dissolve the partnership from that date ; and he then filed his bill against B. and his son to have the dissolution declared by the Court, an injunction to restrain them from practising within 30 miles, and a decree that they should resign the several offices or clerkships. Held, that the Plaintiff was entitled to dissolve the partnership as to B., but not as against the other partner (the son of B.), and that he was not entitled to dissolve it by notice under the 16th clause without the concurrence of his co-partner (the son).
That B., not having procured or endeavoured to procure for the partnership firm the appointments to the several offices or clerkships, so as to give the Plaintiff at the dissolution either a share of the profits of the offices or the chance of competing for them, but such appointments having been procured for B. and his son to the exclusion of the Plaintiff, B. and his son were not to be allowed to retain the offices for their exclusive benefit.
That,inasmuch as, from the nature of the offices, they could not be sold, nor could any manager or receiver be appointed to carry them on, the Defendants ought to be charged with the value of the offices in the partnership accounts.
That, the Plaintiff having given a notice of dissolution (acting under the 16th clause), and his co-partner having adopted it, the partnership should be treated as dissolved from the time of the notice, although not with the consequences attaching to a dissolution under the 15th clause.
That, the consequences of a dissolution uncler the 15th clause not having attached, the Plaintiff, therefore, was not entitled to the injunction to restrain the Defendants from practising within 30 miles.
An agreement that, if any of several partners should not diligently and faithfully employ himself in carrying on the partnership practice, the others might give notice of dissolution, construed to refer to the diligent and faithful discharge by each partner of the portion of business carried on by him.
This case is cited by:

  • Cited – Faulks -v- Faulks ChD ([1992] 1 EGLR 9)
    One brother, as tenant farmed land under a partnership with his brother. On the death of either partner, an account was to be taken and a valuation. On the death of the tenant, there was a dispute as to whether the value of the farm’s milk quotahad . .

Bentley v Oldfield; 8 Nov 1854

References: [1854] EngR 859, (1854) 19 Beav 225, (1854) 52 ER 335
Links: Commonlii
Devise of ‘my property in houses, &c., at G.’ held (independently of Wills Act) to pass the fee.
A testator gave his real and personal estate to trustees, for the maintenance of his children until they attained twenty-one. As thay arrived at that age respectively, he directed it to be divided as follows: A legacy of 2100 to his son, and his property at G. (freehold), between his daughters.
Held: on a deficiency of personal estate, that the legacy was not charged on the real estate.
Observation on the doctrine of Roberts v Walker, 1 Russ & Myl 752.
A testator, in the first instance (as was held) devised freeholds to his three daughters equally, in fee, and he further willed the several shares to his three daughters as before mentioned, to have the interest for their use during their natural lives, and afterwards devised equally amongst their children, and, for want of children, to go to their husbands, if living.
Held: that the daughters took an estate for life, and in defauIt of children, their husbands, if living, took the fee.

Jane Robbins, Administratrix of Edwin James Robbins, Deceased v Jones; 16 Nov 1863

References: [1863] EngR 956, (1863) 15 CB NS 221, (1863) 143 ER 768
Links: Commonlii
It is for the grantee of an easement, and not the grantor, to maintain and repair the subject matter of the easement, with a duty to do so if by his neglect the servient tenement suffers damage.
This case is cited by:

  • Cited – Southwark London Borough Council -v- Mills/Tanner; Baxter -v- Camden London Borough Council HL (Times 22-Oct-99, Gazette 10-Nov-99, Gazette 03-Nov-99, House of Lords, Bailii, [1999] 4 All ER 449, [2001] 1 AC 1, [1999] UKHL 40, [1999] 3 WLR 939, [1999] 3 EGLR 35, [2000] 32 HLR 148, [1999] 45 EG 179, (2000) 79 P & CR D13, [1999] EGCS 122, [2000] Env LR 112, [1999] NPC 123, [2000] L & TR 159, [2000] BLGR 138)
    Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
    Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .

George Wright v Sandford Tatham; 7 Jun 1838

References: , [1838] EngR 710, (1838) 5 Cl & Fin 670, (1838) 7 ER 559
Links: Commonlii
On a question of the competence of a party to make a will, letters written to that party by person since deceased, and found (many years after their date) among his papers, are not admissible in evidence without proof that he himself acted upon them.
This case cites:

  • See Also – Wright -v- Doe Dem Sandford Tatham KBD (, Commonlii, [1837] EngR 853, (1837) 7 Ad & E 313, (1837) 112 ER 488)
    The court was asked as to the understanding of th edeceased when he made his will. Letters, found in the house, were produced and the court now asked whether they could be used in evidence.
    Held: such letters were not admissible unless . .
  • See Also – Wright -v- Doe Dem Tatham HL (, Commonlii, [1838] EngR 649, (1838) 4 Bing NC 489, (1838) 132 ER 877)
    In an issue on the sanity of a testator, who made his will in 1825, the devisee offered in evidence the following letters of deceased persons, which were found open, and addressed to testator, with other papers bearing his indorsements, in a . .

Dimes v Lord Cottenham; 2 May 1850

References: [1850] EngR 499 (A), (1850) 5 Exch 311
Links: Commonlii
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court.
This case cites:

  • See Also – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .

This case is cited by:

  • See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
    Held: Such an endorsement did not mean that the . .
  • See Also – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
  • See Also – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Trevorrow v State of South Australia (No 4); 16 Feb 2006

References: (2006) 94 SASR 64, [2006] SASC 42
Links: Austlii
Coram: The Honourable Chief Justice Doyle, The Honourable Justice Debelle and The Honourable Justice White
(Supreme Court of South Australia – full Court) Appeals against two decisions – Whether legal professional privilege applies to eleven documents discovered by the defendant – if privilege existed whether it had been waived – Whether defendant entitled to injunction restraining the use of the same documents which were already in the plaintiff’s possession on the ground of an equitable obligation of confidence and public interest immunity – Where confidential information in one document had already been disclosed to a third party – Whether the defendant suffered detriment – Whether misapplication of iniquity rule – Whether the documents were the subject of public interest immunity – Discussion of the principles regarding equitable doctrine of restraining use or publication of confidential information.
Held: It is the circumstances by which the person in possession of the confidential information has acquired that possession rather than the circumstances in which the information was imparted to the initial recipient that is the relevant consideration in considering whether there was a breach of confidence – No conditions of confidentiality attached to disclosure of 10 of the documents – Recipient unaware a mistake had been made if the confidential information had been disclosed unintentionally – No obligation of confidence arose – Unnecessary to consider issues of detriment or application of the iniquity rule – No error by trial judge in failing to find documents subject to public interest immunity – Even if confidentiality had not been lost, trial judge correct to find waiver of privilege – Both appeals allowed for the limited purpose of having the claim of confidentiality with respect to one document remitted to the trial judge for further consideration – Otherwise each appeal dismissed.
This case cites:

  • Cited – Goddard -v- Nationwide Building Society CA ([1987] 1 QB 670, [1986] 3 WLR 734)
    A solicitor had acted for both purchaser and lender in a purchase transaction. The purchaser later sought to recover from the defednant for a negligent valuation. The solicitor had however discussed the issue with the plaintiff before the purchase, . .

Regina v Ashworth Special Hospital Trust, ex parte Munjaz; 10 Oct 2000

References: [2000] MHLR 183
Coram: Jackson J
The claimant was detained iin a secure mental hospital. He complained of being held in seclusion for a long period, and as to the hospital’s policy.
Held: The hospital’s policy, by reducing the frequency of review of a patient’s seclusion below that provided for in the Code of Practice, was unlawful and was not justified by the fact that the hospital was a maximum secure hospital. In particular, the failure after the third day of seclusion to have twice-daily medical reviews of the continuation of seclusion was not justified.
The Code of Practice for Seclusions issued under the Act was directed at all seclusions, including those lasting more than three days. A departure would be lawful only if justified by ‘a good reason arising from the particular circumstances at Ashworth hospital. There was no justification for abandoning the requirement that one of the nurses reviewing the seclusion was not involved in the original decision to seclude, which should apply ‘where practicable’. The policy of reducing medical reviews to one per day was too great a departure from the Code but twice daily reviews after the patient had been secluded for three days would be appropriate. He granted a declaration that ‘a. the Ashworth Special Hospital Authority Seclusion Procedure is unlawful in that it does not require one of the nurses who carries out the 2 hourly review to be independent from the initial decision to seclude, and that it reduces the frequency of review by a doctor after a patient has been secluded for more than 24 hours b. the Ashworth Special Hospital Authority Seclusion Guidance at paragraph 6.8.1. is unlawful for the reasons set out at Part 3 of the judgment.’
Statutes: Mental Health Act 1983
This case is cited by:

Connecticut Bank of Commerce v Republic of Congo; 29 Aug 2002

References: [2002] 309 F3d 240
Links: Worldlii
Coram: Emilio M Garza
(United States Court of Appeals, Fifth Circuit) Connecticut Bank had acquired the rights to a valid London judgment against the Congo for defaulting on a loan agreement. It obtained a default judgment in New York in relation to the London judgment debt. The Bank then sought to attach various debts owed by a group of Texas oil companies to the Congo. The debts constituted various royalty obligations by the oil companies for activities connected with the exploration for and the sale of the Congo’s oil.
Held: The debts due from the oil companies were not ‘property . . used for a commercial activity’ within the meaning of section 1610(a). Judge Garza, for the majority said: ‘The phrase ‘used for’ on its face denotes something different and more specific than the phrases ‘integral to’ or ‘necessary to’. It also denotes something distinct (and narrower) than the other phrases the Bank uses in its petition, such as ‘related to’ or ‘contemplated by.”
Judge Garza said: ‘What matters under the statute is what the property is ‘used for’, not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign state’s property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not ‘used for’ a commercial activity within our borders. The district court (and the litigants) have focused on the question of whether the Congo’s joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank want to garnish, was a ‘commercial activity in the United States’. This was the wrong question to consider. What matters under the statute is not how the Congo made its money, but how it spends it. The amenability of these royalties and taxes to garnishment depends on what they are ‘used for’, not on how they were raised.’
He added: ‘The phrase ‘used for’ in section 1610(a) is not a mere syntactical infelicity that permits courts to look beyond the ‘use’ of property, and instead try to find any kind of nexus or connection to a commercial activity in the United States. The statute means what it says: property of a foreign sovereign . . may be executed against only if it is ‘used for’ a commercial activity. That the property is revenue from or otherwise generated by commercial activity in the United States does not thereby render the property amenable to execution.
. . To use property for a commercial activity, within the ordinary meaning of ‘use’, would be to put the property in the service of the commercial activity, to carry out the activity by means of the property. Here, the royalty obligations in question represent the revenue, the income, from an allegedly commercial activity. In ordinary usage, we would not say that the revenue from a transaction is ‘used for’ that transaction.’
He referred to the Act, noting the distinction in the Act between the jurisdictional immunity in section 3(1), which provides that a state is not immune as respects proceedings ‘relating to’ a commercial transaction and section 13(4), which, as he put it, makes explicit that the mere relationship to a commercial activity does not suffice to permit execution, the property must ‘for the time being’ be ‘in use or intended for use for a commercial purpose’. He concluded that the Act parallels the FSIA on the footing that: ‘it allows jurisdiction based on mere relationship to a commercial activity, but very clearly permits execution only depending on the ‘use’ of the property.’
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

FG Hemisphere Associates LLC v Democratic Republic of Congo; 10 Feb 2010

References: [2010] HKCA 19, [2010] 2 HKLRD 66, [2010] 2 HKC 487
Links: HKLii
Hong Kong Court of Appeal
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Pemberton v Topham; 15 Nov 1838

References: , [1838] EngR 936, (1838) 1 Beav 316, (1838) 48 ER 962
Links: Commonlii
Commonlii In a creditor’s suit instituted by the Plaintiff on behalf of himself and all other creditors, the Defendant is entitled on motion, at any time before decree, to have the bill dismissed, on payment of the demand of the Plaintiff and his costs as between party and party; but if there be other defendants their costs must also be paid.

The Grand Junction Canal Company v Dimes; 2 Jun 1849

References: [1850] EngR 243, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, (1849) 17 Sim 38, (1849) 60 ER 1041
Links: Commonlii, Commonlii
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain those actions. The defendant had also challenged the validity of the existing orders.
This case cites:

  • See Also – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .

Williams v Jones; 22 Jan 1845

References: [1845] EngR 394, (1845) 13 M & W 628, (1845) 153 ER 262
Links: Commonlii
Coram: Parke B
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that the plaintiff levied his plaint in the county court for a Cause of action arising within its jurisdiction.
Where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained.
This case is cited by:

  • Cited – Rubin and Another -v- Eurofinance Sa and Others SC (Bailii, [2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, Bailii Summary, SC Summary, SC, UKSC 2010/0184)
    The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
  • Cited – Adams -v- Cape Industries plc CA ([1990] Ch 433, [1991] 1 All ER 929, [1990] 2 WLR 657, [1990] BCLC 479, [1990] BCC 786)
    The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .

Child v Affleck Et Ux; 13 May 1829

References: [1829] EngR 459, (1829) 9 B & C 403, (1829) 109 ER 150
Links: Commonlii
In an action for libel, it appeared that the defendant, with whom the plaintiff had lived as servant, in answer to inquiries respecting her character, wrote a letter imputing misconduct to her whilst in that service, and after she left it; and the defendant also made similar parol statements to two persons that had recommended the plaintiff to her: Held, that neither the letter itself nor the parol statements proved malice, and that, consequently the letter was a privileged communication, and the plaintiff not entitled to recover.

Tooth v The Dean And Chapter Of Canterbury; 13 May 1829

References: [1829] EngR 460, (1829) 3 Sim 49, (1829) 57 ER 919
Links: Commonlii
The Dean and Chapter of C., being rectors of a parish, leased all the tithes belonging to the rectory. The lessees filed a bill for tithe of hops against the occupiers, to which the vicar was made a party as claiming that tithe. The occupiers then file a cross-bill against the dean and chapter and their lessees, for a discovery and production of documents. Demurrer by the dean and chapter alIowed.

The King v Salway; 19 May 1829

References: [1829] EngR 473, (1829) 9 B & C 424, (1829) 109 ER 158
Links: Commonlii
By a charter of Queen Elizabeth it was provided that vacancies in the common council of the borough of L, should be filled up by election out of the ‘burgesses and inhabitants.’ The charter was accepted, but the corporation afterwards elected burgesses, not being inhabitants, to the office of common councilmen, as they had done before. This charter, and all other franchises,w ere surrendered to Car II and W & M. by a charter of restoration granted that the corporation should enjoy all franchises, elections, rights of election, &c. that they had previously enjoyed by virtue or pretence of any charter, or by any other lawful manner, right, or title: Held, that under the charter of Elizabeth, burgesses could not be elected to be common counciimen unless they were inhabitants; and that an usage to elect burgesses not inhabitants was repugnant to the charter, and could not be pleaded in explanation of it: Held, also, that the charter of W. & M. only restored such rights as had been lawfully exercised under or by pretence of former charters, and, therefore, did not enable the corporation to elect burgesses, not being inhabitants, to the office of common councilmen.

Regina v The Inhabitants Of Hickling; 27 Jun 1845

References: [1845] EngR 1051, (1845) 7 QB 880, (1845) 115 ER 719
Links: Commonlii
By stat. 34 Q 3, c. 64, when the boundary of two parishes lay along the centre of a highway, justices were empowered, on information of the fact, to summon the surveyors of the respective parishes, hear the parties and their witnesses, and finally determine the matter by order, apportioning the highway between the parishes for the purpose of repair. Forms of information, summons and order were given. By an order under this Act, the justices recited an information laid before them that one side of a certain highways in, and repairable by, parish E, and the other side in, arid repairable by, parish W., praying an apportionment that they had summoned the surveyors, who attended, and that they had examined witnesses : and they ordered that the highway should be apportioned between H. & W., dividing it by a traversing line.

Telnikoff v Matusevitch; 24 May 1989

References: Unreported, 24-May-89
Coram: Drake J
The plaintiff claimed in libel. Drake J upheld a submission that there was no case to go before the jury, in respect that (1) any reasonable jury properly directed would be bound to sustain the defence of fair comment, and (2) there was no evidence of express malice.
This case is cited by:

  • Appeal from – Telnikoff -v- Matusevitch CA ([1991] 1 QB 102)
    The court considered the element of malice in a defamation defence: ‘If a piece of evidence is equally consistent with malice and the absence of malice, it cannot as a matter of law provide evidence on which the jury could find malice. The judge . .
  • At first instance – Telnikoff -v- Matusevitch HL ([1992] 2 AC 343, Bailii, [1992] UKHL 2)
    The court should decide on whether an article is ‘fact or comment’ purely by reference to the article itself, and not taking into account any of the earlier background coverage. It is the obligation of the relevant commentator to make clear that the . .

Abernethy v Hutchinson; 17 Jun 1825

References: (1825) 1 H&Tw 28, [1825] EngR 653, (1824-1825) 1 H & Tw 28, (1825) 47 ER 1313
Links: Commonlii
Coram: Lord Eldon LC
An application was made to restrain the Defendants from publishing, in ‘The Lancet,’ Mr Abernethy’s Lectures, which had been delivered extemporally. Lord Eldon, at first, refused the application; but afterward granted an injunction, in the ground that there was an implied contract between him and the parties who attended his Lectures, that they should not publish them.
This case is cited by:

  • Cited – British Steel Corporation -v- Granada Television Ltd HL ([1981] AC 1096, [1981] 1 All ER 452, [1980] 3 WLR 774)
    The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
    Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .