References:  UKAITUR AS523422003,
References:  UKAITUR AS503282003,
A dining hall table being moved by a caretaker was held to be work equipment.Date: 01-Jan-2001
References:  Rep LR 62,
- Spencer-Franks -v- Kellogg Brown and Root Ltd and others, HL, Cited, (Bailii,  UKHL 46, Times 03-Jul-08, HL,  ICR 863,  1 All ER 269, 2008 Rep LR 106, 2008 SLT 675,  PIQR P22, (2008) 158 NLJ 1004, 2008 SCLR 484, (2008) 105(27) LSG 17, (2008) 152(27) SJLB 30)
Sir Billy Butlin had executed a voluntary settlement to allow a majority of trustees to exercise a power under the settlement. By a drafting error the settlement did not give effect to this intention.
Held: The court could rectify the settlement even though only one of the original trustees knew of the intention. (Brightman J) ‘There is, in my judgment, no doubt that the court has power to rectify a settlement notwithstanding that it is a voluntary settlement and not the result of a bargain, such as an ante-nuptial marriage settlement. Lackersteen v. Lactersteen (1860) 30 L.J. Ch 5, a decision of Page-Wood V.C. and Behrens v. Heilbut (1956) 222 L.J. Jo.290, a decision of Harman J., are cases in which voluntary settlements were actually rectified. There are also obiter dicta to the like effect in cases where rectification was in fact refused; see Bonhote v. Henderson  1 Ch. 642;  1 Ch. 202.’ and ‘… rectification is available not only in a case where particular words have been added, omitted or wrongly written as a result of careless copying or the like. It is also available where the words of the document are purposely used but it was mistakenly considered that they bore a different meaning as a matter of true construction. In such a case … the court will rectify the wording so that it expresses the true intention ….’
Judges: Brightman J
References:  Ch 251,
- Lansing Linder Ltd -v- Alber, ChD, Cited, ( Pensions LR 15)
- AMP (UK) Plc and Another -v- Barker and Others, ChD, Cited, (Bailii, HC 001897,  EWHC Ch 42,  OPLR 197)
- Chartbrook Ltd -v- Persimmon Homes Ltd and Another, ChD, Cited, (Bailii,  EWHC 409 (Ch),  2 P & CR 9,  1 All ER (Comm) 1083,  11 EG 160)
- Oun -v- Ahmad, ChD, Cited, (Bailii,  EWHC 545 (Ch))
- Marley -v- Rawlings and Another, SC, Cited, (Bailii,  UKSC 2,  2 WLR 213,  WTLR 299, 16 ITELR 642,  1 All ER 807,  WLR(D) 18,  Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057)
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The defendants had not been in business in this field at all, entered the market at the expense of the plaintiffs using an infringing version of the plaintiffs’ patented construction.
Held: The proper damages were on the assumption that the plaintiffs would have made, with their patented lintels, those sales made by the defendants with the infringing lintels save as shown otherwise. An invention involves an inventive step if it is not obvious ‘to a person skilled in the art’ being a person likely to have a practical interest in the subject matter of the invention.
The approach to construction exemplified in Prenn and in Reardon-Smith is to be applied also to the construction of patents claims: ‘A patent specification should be given a purposive construction rather than a purely literal one derived from applying to it the kind of meticulous verbal analysis in which lawyers are too often tempted by their training to indulge.’ and ‘Both parties to this appeal have tended to treat ‘textual infringement’ and infringement of the ‘pith and marrow’ of an invention as if they were separate causes of action, the existence of the former to be determined as a matter of construction only and of the latter upon some broader principle of colourable evasion. There is, in my view, no such dichotomy; there is but a single cause of action and to treat it otherwise . . is liable to lead to confusion.’
Judges: Lord Diplock
Statutes: Patents Act 1977 3
References:  FSR 512,  RPC 183
- Prenn -v- Simmonds, HL, Cited, ( 1 WLR 1381,  3 All ER 237)
- Reardon Smith Line Ltd -v- Yngvar Hansen-Tangen (The 'Diana Prosperity'), HL, Cited, ( 1 WLR 989,  2 Lloyd's Rep 621,  3 All ER 570)
- Clark -v- Adie, HL, Cited, ((1877) 2 App Cas 315)
- Coflexip Sacoflexip Stena Offshore Limited -v- Stolt Offshore Limitedstolt Offshore Limited Stolt Offshore A/S, CA, Cited, (Bailii,  EWCA Civ 296,  FSR 34)
- Stena Rederi Aktiebolag and Another -v- Irish Ferries Ltd, CA, Cited, (Times 10-Feb-03, Bailii,  EWCA Civ 66)
- Kirin-Amgen Inc and others -v- Hoechst Marion Roussel Limited and others etc, HL, Cited, (House of Lords,  UKHL 46, Bailii,  RPC 169, (2005) 28(7) IPD 28049,  1 All ER 667)
- Improver Corporation -v- Remington Consumer Products Ltd, ChD, Explained, ( FSR 181,  RPC 69)
- PLG Research Ltd and Another -v- Ardon International Ltd and Others, CA, Cited, (Times 25-Nov-94,  RPC 287)
- Assidoman Multipack Ltd -v- The Mead Corporation, , Cited, ( RPC 321)
- W L Gore & Associates Gmbh -v- Geox Spa, PatC, Cited, (Bailii,  EWHC 2311 (Pat))
- Devenish Nutrition Ltd and others -v- Sanofi-Aventis SA (France) and others, ChD, Cited, (Bailii,  EWHC 2394 (Ch),  2 WLR 637,  2 All ER 249)
- PLG Research Ltd and Another -v- Ardon International Ltd and Others, ChD, Cited, ( FSR 197)
- Marley -v- Rawlings and Another, SC, Cited, (Bailii,  UKSC 2,  2 WLR 213,  WTLR 299, 16 ITELR 642,  1 All ER 807,  WLR(D) 18,  Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057)
It was proved that a mistake had occurred in a clause giving a pecuniary legacy. The testator had intended one person to be named as the legatee, and by a mistake the draftsman had substituted the name of another. The testator was led to execute the will in the belief that the correct name appeared.
Held: the will could be admitted to probate with the name omitted. In some cases, a simple word or expression can be deleted from a will ‘if shewn to have been inserted by mistake’. By omitting the erroneous name he was creating an ambiguous situation. A court of construction might infer, on consideration of the will as a whole, that in the blank the name of the intended legatee should be understood, or it might hold that the clause was meaningless. Nevertheless his Lordship decided to omit the word. He said: ‘If a person by fraud obtained the substitution of his name for that of another in a will it would be strange if his name could not be struck out, although the rest of the clause in which it occurred became thereby meaningless. It may be that in the present case the effect of striking out the name in question will be, on the construction of the will, as it will then read, to carry out the testator’s intentions completely. It is not for me to decide that. But even if to strike out a name inserted in error and leave a blank have not the effect of giving full effect to the testator’s wishes, I do not see why we should not, so far as we can, though we may not completely, carry out his intentions’
Judges: Jeune J
References:  P 247,
A defendant seeking to avoid answering questions so as not to incriminate himself is to be given some understanding and latitude in respecting his own interpretation. The beneficiary of a pardon could be called upon to incriminate himself because he merited no protection: ‘the effect of which [the pardon] was to make him a new man, and consequently to bar any proceedings by or in the name of the Crown’.
Cockburn CJ set out the level of risk required to allow a claim of the privilege against self incrimination: ‘To entitle a witness to the privilege of not answering a question as tending to incriminate him, the court must see, from the circumstances of the case and the nature of the evidence which the witness is called to give, that there is reasonable grounds to apprehend danger to the witness from his being compelled to answer. If the facts of the witness being endangered be once made to appear, great latitude should be allowed to him in judging the effect of any particular question. The danger to be apprehended must be real and appreciable, with reference to the ordinary operation of law in the ordinary course of things, and not a danger of imaginary character having reference to some barely possible contingency.’
Judges: Cockburn CJ
References: (1861) 1 B & S 311,  EngR 626, (1861) 121 ER 730
- Regina -v- Boyes, , Appeal from, ( EngR 170, Commonlii, (1860) 2 F & F 157, (1860) 175 ER 1004)
- British Steel Corporation -v- Granada Television Ltd, HL, Cited, ( AC 1096,  1 All ER 452,  3 WLR 774)
- Regina -v- Uxbridge Magistrates Court & An ex parte Adimi; Regina -v- Crown Prosecution Service ep Sorani; Regina -v- Secretary of State for Home Department ep Sorani; Regina -v- Secretary of State for Home Department and Another ep Kaziu, Admn, Cited, (Times 12-Aug-99, Bailii,  EWHC Admin 765,  QB 667,  3 WLR 434,  Imm AR 560,  4 All ER 520)
- C Plc and W -v- P and Secretary of State for the Home Office and the Attorney General, ChD, Cited, (Bailii,  EWHC 1226 (Ch), Times 08-Jun-06,  3 WLR 437)
- Phillips -v- Newsgroup Newspapers Ltd and Others, ChD, Cited, (Bailii,  EWHC 2952 (Ch))
A sequestration order, while in force, was a valid order providing legal protection to those who had obtained it and acted upon it. The court made a distinction between acts of the court and the acts of the parties.Date: 01-Jan-1871
References: (1871) QB 203,
- Tombstone Ltd -v- Raja and Another; Raja -v- Van Hoogstraten and others (No 9), CA, Cited, (Bailii,  EWCA Civ 1444, Times,  1 WLR 1143)
The court considred the meaing of the term ‘statutory tenancy': ‘I think that it is a pity that that expression ['statutory tenant'] was ever introduced. It is really a misnomer, for he is not a tenant at all; although he cannot be turned out of possession so long as he complies with the provisions of the statute, he has no estate or interest in the premises such as a tenant has.’Court: CA
Judges: Bankes LJ
References:  1 KB 685,
A decision of the Commisioners was said by statute to be final, an accordingly certiorari was not available.Court: QBD
References:  2 All ER 292,
- Regina -v- Medical Appeal Tribunal ex parte Gilmore; Re Gilmore's Application, CA, Cited, ( 1 QB 574,  1 All ER 796, Bailii,  EWCA Civ 1,  2 WLR 498)
A Probate Judge is not considered to be a trustee.Date: 01-Jan-1954
References:  1 WLR 332,
- Anne Hyde Earnshaw; Marion Robinson and Lucy Hyde Fielden -v- Josephine Hyde Hartley, CA, Mentioned, (Gazette 21-Apr-99, Times 29-Apr-99, Gazette 12-May-99, Bailii,  EWCA Civ 1141,  Ch 155)
West Bromwich Building Society -v- Robert Guest and Financial Intermediaries, Managers and Brokers Regulatory Association; CA 12-Dec-1996
References:  EWCA Civ 1199,
Mr and Mrs Rawlings had made wills in substantially similar format, but, mistakenly, they each executed that of the other. After Mr Rawling died the family disputed whether he had made a will. Mrs Rawling applied for rectification of the document signed by her late husband, and now appealed against rejection of her claim, the judge finding that the document had not been intended to be his will.
Held: The appeal failed. The Will did not satisfy section 9(b) of the 1837 Act, and rectification was not available to correct it.
Judges: Sir John Thomas
Statutes: Wills Act 1837 3 9, Wills Act Amendment Act 1852, Administration of Justice Act 1982 20 21
References:  2 FLR 556,  EWCA Civ 61,  2 WLR 205,  Ch 271,  WTLR 639, 14 ITELR 843,  Fam Law 403,  4 All ER 630
- Marley -v- Rawlings and Another, ChD, Appeal from, (Bailii,  EWHC 161 (Ch),  1 WLR 2146,  2 All ER 103,  Fam Law 477)
A vendor’s right to rescind a contract for the sale of land on receipt of a requisition was not to be exercised for reasons unconnected with the contract.Date: 01-Jan-1878
References: (1878) 8 Ch D 588,
There is no significance in the fact that a formal written agreement, whether executed or not, is in different terms to the oral discussions leading up to it, subject of course to the appropriate authority of those who have executed it.
Lord Blackburn said: ‘So long as they are only in negotiation either party may retract; and though the parties may have agreed on all the cardinal points of the intended contract, yet, if some particulars essential to the agreement still remain to be settled afterwards, there is no contract. The parties, in such a case, are still only in negotiation. But the mere fact that the parties have expressly stipulated that there shall afterwards be a formal agreement prepared, embodying the terms, which shall be signed by the parties does not, by itself, shew that they continue merely in negotiation. It is a matter to be taken into account in construing the evidence and determining whether the parties have really come to a final agreement or not. But as soon as the fact is established of the final mutual assent of the parties so that those who draw up the formal agreement have not the power to vary the terms already settled, I think the contract is completed.’
Judges: Lord Blackburn
References:  3 APP Cas 1124,
- London & Regional Investments Ltd -v- TBI Plc and Another, ChD, Cited, (Unreported March 2001)
- Hutchison and others -v- B & DF Ltd, ChD, Cited, (Bailii,  EWHC 2286 (Ch))
The owner of a block of flats let one to the tenant, but kept the roof and guttering in his own possession and control. The guttering became defective and the landlord failed to remedy it after notice. Rainwater escaped and caused damage to the Claimant.
Held: The landlords were liable for the damage suffered by her.
Bankes LJ referred to a ‘line of authorities to show that a landlord is under an obligation to take reasonable care that the premises retained in his occupation are not in such a condition as to cause damage to the parts demised to others.’
Judges: Scrutton LJ, Bankes LJ and Sargant LJ
References:  2 KB 119,
- Rylands -v- Fletcher, CEC, Applied, ((1866) LR 1 Ex 265,  3 H&C 774,  EngR 436, Commonlii, (1865) 3 H & C 774, (1865) 159 ER 737)
The House considered the meaning of possession.
Held: Lord Scarman: ‘Possession is a deceptively simple concept. It denotes a physical control or custody of a thing plus knowledge that you have it in your custody or control.’
References:  AC 768,
Equity has an interest in and a power over a purchaser’s conscience. Good faith is a separate test which may have to be passed even though absence of notice is proved.Date: 01-Jan-1872
Judges: James LJ
References: (1872) LR 7 Ch App 259,
- R Griggs Group Ltd and others -v- Evans and others (No 2), ChD, Cited, (Bailii,  EWHC 1088 (Ch), Times 27-May-04,  Ch 153,  FSR 939)
The court considered the liability of the master in a case of master and servant, a case of pure vicarious liability and a case in which the sole cause of the injuries was the negligence of the servant.Date: 01-Jan-1954
Judges: Finnimore J
References:  2 All ER 206,
Evidence given to Lloyds loss review committee is discoverable despite rule.Court: CA
Links: Ind Summary,
- Arbuthnott -v- Fagan, CA, See also, ( CLC 1396,  1 Lloyd's Re Insurance Law Reports 135)
- Arbuthnot and Others -v- Fagan & Feltring Underwriting Agencies Ltd and Others, HL, Appeal from, (Times 26-Jul-94, Independent 03-Aug-94)
- Arbuthnott -v- Fagan, CA, See also, ( CLC 1396,  1 Lloyd's Re Insurance Law Reports 135)
ECJ (Grand Chamber) European Union law – Principles – Fundamental rights – Implementation of European Union law – Prohibition of inhuman or degrading treatment – Common European Asylum System – Regulation (EC) No 343/2003 – Concept of ‘safe countries’ – Transfer of an asylum seeker to the Member State responsible – Obligation – Rebuttable presumption of compliance, by that Member State, with fundamental rightsCourt: ECJ
Judges: V Skouris, P
Statutes: Regulation (EC) No 343/2003
References:  2 CMLR 9,  All ER (EC) 1011,  EUECJ C-411/10,  QB 102, ECLI:EU:C:2011:865,  3 WLR 1374
- EM (Eritrea), Regina (on The Application of) -v- Secretary of State for The Home Department, SC, Cited, (Bailii,  UKSC 12,  HRLR 8,  2 WLR 409,  WLR(D) 89,  Imm AR 640,  2 All ER 192, WLRD, ailii Summary)
Tenants of new houses in 1925 agreed in their 99 year leases to yield up the premises having well and sufficiently repaired the premises with all manner of reparations.
Held: Atkin LJ said that repair ‘connotes the idea of making good damage so as to leave the subject so far as possible as though it had not been damaged’.
Judges: Atkin LJ
References:  1 KB 716,
The shipowners had cancelled a voyage charter-party because no cargo had been provided. The court asked what delay could lead to a claim for a repudiatory breach of a contract. Devlin J said: ‘This case gives rise to a difficult question. How long is a ship obliged to remain on demurrage, and what are the rights of the owner if the charterer detains her too long? Translated into the terms of general contract law, the question is: Where time is not of the essence of the contract – in other words, when delay is only a breach of warranty – how long must the delay last before the aggrieved party is entitled to throw up the contract? The theoretical answer is not in doubt. The aggrieved party is relieved from his obligations when the delay becomes so long as to go to the root of the contract and amount to a repudiation of it. The difficulty lies in the application, for it is hard to say where fact ends and law begins. The best solution will be found, I think, by a judge who does not try to draw too many nice distinctions between fact and law, but who, having some familiarity both with the legal principle and with commercial matters and the extent to which delay affects maritime business, exercises them both in a common-sense way. This is the sort of solution which, upon the supposition that it was acceptable to business men, the commercial court was created to provide.’ and ‘But a party to a contract may not purchase indefinite delay by paying damages . . When the delay becomes so prolonged that the breach assumes a character so grave as to go to the root of the contract, the aggrieved party is entitled to rescind. What is the yardstick by which this length of delay is to be measured? Those considered in the arbitration can now be reduced to two’ (as in the present appeal) ‘first, the conception of a reasonable time, and secondly, such delay as would frustrate the charter-party . . In my opinion the second has been settled as the correct one by a long line of authorities’.Date: 01-Jan-1957
Judges: Devlin J
References:  2 QB 402,
- Hong Kong Fir Shipping Co -v- Kawasaki Kisen Kaisha Ltd, CA, Approved, ( 2 QB 26, Bailii,  EWCA Civ 7,  1 All ER 474)
- Astea (Uk) Ltd -v- Time Group Ltd, TCC, Cited, (Bailii,  EWHC 725 (TCC),  All ER (D) 212)
- SK Shipping (S) Pte Ltd v Petroexport Ltd, ComC, Cited, (Bailii,  EWHC 2974 (Comm))
An agreement transferring responsibility for loading, stowage and discharge of cargo from the shipowners to shippers, charterers and consignees is not invalidated by article III, r. 8.
Lord Somervell of Harrow said as to Art III r2: ‘It is, in my opinion, directed and only directed to the manner in which the obligations undertaken are to be carried out. Subject to the later provisions, it prohibits the shipowner from contracting out of liability for doing what he undertakes properly and with care. This question was considered by Devlin J in Pyrene Co Ltd v Scindia Navigation Company Limited in relation to the words ‘shall properly and carefully load’. I agree with his statement, which has already been cited.’
Judges: Lord Morton of Henryton, Lord Cohen and Lord Somervell of Harrow.
Statutes: Hague-Visby Rules III r8
References:  AC 149,
- Pyrene Co Ltd -v- Scindia Navigation Co Ltd, QBD, Approved, ( 2 QB 402)
Lord Mansfield CJ said: ‘The underwriter, here, knowing the governor to be acquainted with the state of the place; knowing that he apprehended danger, and must have some ground for his apprehension; being told nothing of either; signed this policy, without asking a question. If the objection ‘that he was not told’ is sufficient to vacate it, he took the premium knowing the policy to be void; in order to gain, if the alternative turned out one way; and to make no satisfaction, if it turned out the other: he drew the governor into a false confidence . . If he thought that omission an objection at the time, he ought not to have signed the policy with a secret reserve in his own mind to make it void; if he dispensed with the information, and did not think this silence an objection then; he cannot take it up now, after the event.’ and
‘There are many matters as to which the insured may be innocently silent. He need not mention what the underwriter knows: what way soever he came to the knowledge. The insured need not mention what the underwriter ought to know: what he takes upon himself the knowledge of: or what he waives being informed of…and either party may be innocently silent as to grounds open to both to exercise their judgment upon.’
There may be circumstances in which an insurer, by asserting a right to avoid for non-disclosure, would himself be guilty of want of good faith.
Judges: Lord Mansfield CJ
References:  3 Burr 1905,  EngR 13, (1766) 3 Burr 1905, (1766) 97 ER 1162 (C)
- Carter -v- Boehm, , See Also, (Commonlii,  EngR 89, (1746-1779) 1 Black W 593, (1746) 96 ER 342 (B))
- Glencore International Ag and Another -v- Portman and others, CA, Cited, (Bailii,  EWCA Civ 1206)
The VAT tribunal may assess whether the Commissioner had acted on the basis of his best judgment. Evans LJ discussed appeals on fact disguised as appeals on law: ‘There is a well-recognised need for caution in permitting challenges to findings of fact on the ground that they raise this kind of question of law. That is well seen in arbitration cases and in many others. It is all too easy for a so-called question of law to become no more than a disguised attack on findings of fact which must be accepted by the courts. As this case demonstrates, it is all too easy for the appeals procedure to the High Court to be misused in this way. Secondly, the nature of the factual inquiry which an appellate court can and does undertake in a proper case is essentially different from the decision-making process which is undertaken by the tribunal of fact. The question is not, has the party upon whom rests the burden of proof established on the balance of probabilities the facts upon which he relies, but, was there evidence before the tribunal which was sufficient to support the finding which it made? In other words, was the finding one which the tribunal was entitled to make? Clearly, if there was no evidence, or the evidence was to the contrary effect, the tribunal was not so entitled.
It follows, in my judgment, that for a question of law to arise in the circumstances, the appellant must first identify the finding which is challenged; secondly, show that it is significant in relation to the conclusion; thirdly, identify the evidence, if any, which was relevant to that finding; and, fourthly, show that that finding, on the basis of that evidence, was one which the tribunal was not entitled to make. What is not permitted, in my view, is a roving selection of evidence coupled with a general assertion that the tribunal’s conclusion was against the weight of the evidence and was therefore wrong. A failure to appreciate what is the correct approach accounts for much of the time and expense that was occasioned by this appeal to the High Court.’
Judges: Evans LJ
Statutes: Value Added Tax Act 1994 83 84
References:  STC 463,
On an appeal from New South Wales, The Board considered the validity of a gift ‘to the trustees’ of the Repatriation Fund or other similar fund for the benefit of New South Wales returned soldiers’.
Held: Trusts for education and religion do not require any qualification of poverty to be introduced to give them validity and generally poverty is not a necessary qualification in trusts beneficial to the community. However, Lord Wrenbury said: ‘To ascertain whether a gift constitutes a valid charitable trust so as to escape being void on the ground of perpetuity, a first enquiry must be whether it is public-whether it is for the benefit of the community or of an appreciably important class of the community. The inhabitants of a parish or town, or any particular class of such inhabitants, may, for instance, be the objects of such a gift, but private individuals, or a fluctuating body of private individuals, cannot.’
Judges: Lord Wrenbury
References:  AC 496,
- Baddeley (Trustees of the Newtown Trust) -v- Inland Revenue Commissioners, HL, Cited, (Bailii,  UKHL 1,  AC 572,  1 All ER 525)
- , , Cited,
- In Re Strakosch, , Cited, (  1 Ch 529)
- In re Resch's Will Trusts, PC, Cited, (Bailii,  UKPC 1,  3 All ER 915,  3 WLR 1153,  1 AC 514)
- Oppenheim -v- Tobacco Securities Trust Co Ltd, HL, Cited, ( AC 297 HL(E), Bailii,  UKHL 2,  1 All ER 31)
There is no custom that a purchaser at an auction can expect to have his personal cheque for a ten per cent deposit accepted. This applies even to those with a good credit standing as much as (here) for an apparent pauper.Date: 01-Jan-1899
References:  2 Ch 73,  68 LJ Ch 425,  80 LT 488,  47 WR 517,  43 Sol Jo 457
A second will was described as the last will and moreover referred to the first will as the cancelled will, the testatrix having written on a copy of it the word ‘cancelled’.
Held: Neither feature was sufficient to effect a complete revocation of the earlier will. What was conclusive in that regard was that the second will was wholly inconsistent with the first. An implied revocation was found because a clear inconsistency between the successive testamentary instruments was identified, so that the presumption against implied revocation was rebutted.
Judges: Luxmoore J
References:  Ch 384,
- In re Resch's Will Trusts, PC, Approved, (Bailii,  UKPC 1,  3 All ER 915,  3 WLR 1153,  1 AC 514)
- Marley -v- Rawlings and Another, SC, Cited, (Bailii,  UKSC 2,  2 WLR 213,  WTLR 299, 16 ITELR 642,  1 All ER 807,  WLR(D) 18,  Fam Law 466, Bailii Summary, WLRD, UKSC 2012/0057)
ECJ (Judgment Of The Court (Fourth Chamber)) Appeals – Competition ? Agreements, decisions and concerted practices – Market in gas insulated switchgear projects – Joint and several liability for payment of the fine – Concept of an ‘undertaking’ – Principle of personal liability and the principle that the penalty must be specific to the offender and the offence – Unlimited jurisdiction of the General Court – The ultra petita rule – Principles of proportionality and equal treatmentCourt: ECJ
References: C-231/11,  EUECJ C-231/11, ECLI:EU:C:2014:256
Two sisters had made similar, but not mirror, wills and by mistake each executed that of the other.
Held: The will was invalid. Sir J Hannen said ‘A paper has been signed as this lady’s will, which, as it happens, if treated as her will, would to a great extent, although not entirely, carry out her wishes. But in one respect it does not, for by it a legacy is bequeathed to one charity which she intended to leave to another. As regards this legacy, it is suggested that it might be treated as if the deceased did not know and approve of that part of the will, but she did not in fact know and approve of any part of the contents of the paper as her will, for it is quite clear that if she had known of the contents she would not have signed it. I regret the blunder, but I cannot repair it.’
Judges: Sir J Hannen
Statutes: Wills Act 1837
References: (1875) LR 3 P&D 250,
- Marley -v- Rawlings and Another, ChD, Cited, (Bailii,  EWHC 161 (Ch),  1 WLR 2146,  2 All ER 103,  Fam Law 477)
The property of a married woman, settled by an ante-nuptial Settlement for her separate use for life, with remainder as she should by Deed or Will appoint, with remainder in failure of appointment to her Executors or Administrators, is an absolute settlement for her sole and separate use, without restraint or anticipation, and vests in equity the entire corpus in her for all purposes.Date: 06-Feb-1873
References:  EngR 3, (1873) 9 Moo PC NS 426, (1873) 17 ER 574
The deceased made a will with two codicils and a later will with a clause of revocation. Probate was sought in respect of all four of the documents ‘as together containing the will of the deceased, excluding from the last the clause of revocation.’
Held: Hannen J said: ‘It was clearly not the intention of the deceased to revoke her previous will. From the facts stated in the affidavit it is evident that the words of revocation were introduced into the last paper per incuriam, and therefore probate will issue without them.’ The judge had received and relied upon an affidavit from one of the executors who attended on the deceased when she executed it that no instructions were given to the person who drew up the second will to insert a clause of revocation, the will was never read over by or to the deceased before she executed it and she was not aware of the clause of revocation contained therein.
Judges: Sir James Hannen P
References: (1874) LR 3 P&D 162,
A lorry driver employed by a firm of contractors on a site where many other contractors were working, contrary to his express instructions, gave an employee of another firm of contractors a lift in his lorry. The passenger was injured and sought to sue the employer.
Held: He could not.
Lord Denning MR said:’In every case where it is sought to make the master liable for the conduct of his servant, the first question is to see whether the servant was liable. If the answer is Yes, the second question is to see whether the employer must shoulder the servant’s liability’.
Asquith LJ said: ‘I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class ‘which he was not employed to perform at all.’
Judges: Asquith LJ, Denning LJ
References:  1 TLR 789,
The defendant denied liability under contract, after the vendor brought an action against against the committee of his estate as a person of unsound mind. He said that the fact that he was of unsound mind was known to vendor, and later that the vendor knew that he was infirm of mind and body and incapable of managing his affairs reasonably and properly, that the price was excessive, that he had no legal advice and that there was no reasonable degree of equality between the contracting parties.
Held: the first defence was a plea in law, the second raised a case for rescission in equity. ‘It is well settled that where the defendant in an action of contract sets up the defence of his insanity at the date of the contract he must, in order to succeed, show that the plaintiff knew of his insanity.’ The defendant had not shown that the company knew of the unsoundness of mind. As to te plea in equity: ‘In the result, after having carefully considered the whole of the evidence in support of this part of the case, I have come to the conclusion and hold as a fact that there was no want of fairness either in the terms of the contract itself or in the circumstances under which it was made, and I acquit all the persons concerned in the transaction on behalf of the plaintiff company from the charge made against them of having overreached or exercised any undue influence over the defendant.’
References:  131 LT Rep 559,
James LJ said that when interpreting a will, the court should ‘place [itself] in [the testator's] arm-chair’Court: CA
Judges: James LJ
References: (1880) 14 Ch D 53,
By a tenancy agreement, the landlord of a dwelling house let to the tenant, on a weekly tenancy, four unfurnished rooms on the first floor of the house together with the use in common with the landlord of the back bedroom on the first floor and the use, in common with the landlord and others authorised by her and of the bathroom and lavatories. After the death of the landlord, the respondents, her successors in title, determined the tenancy by a notice to quit, but the tenant refused to deliver up possession. In an action by the respondents for possession of the four unfurnished rooms, the tenant claimed that she was entitled to the protection of Rent and Mortgage Interest Restrictions Acts 1922 to 1939, because the rooms were let as a separate dwellings within the Increase of Rent and Mortgage Interest Restrictions Act 1920 section 12(2). The respondents contended that as the tenant had the right to share a living room with the landlord, the premises let to her were not let as a separate dwelling, within section 12(2), because the words in the tenancy agreement, ‘the use in common with the landlord of the back bedroom’, were too vague to constitute a right to share part of the dwelling sufficient to exclude the operation of the Rent Restrictions Acts, or created merely a right to the exclusive use of the room from time to time, and did not involve such an evasion of privacy as would exclude the Acts.
The House considered the interpretation of the phrase let as a ‘separate’ dwelling. Lord Reid said: ‘No court is entitled to substitute its words for the words of the Act.
But a court can and must decide what is the appropriate test in a particular case and, when the Court of Appeal has laid down a test, that test ought to be followed in all cases which do not present substantial relevant differences . . [T]hat does not mean that the words used by the Court of Appeal are to be treated as if they were words in an Act of Parliament. In substantially different circumstances they are only a guide, and not a rule.’
Judges: Lord Reid
References:  AC 65,  2 All ER 176,  2 WLR 1053, 100 Sol Jo 341
The court had criticised an auditors valuation of a company’s shares.
Held: The criticism was not correct. However. if the court was satisfied that the valuation was made under a mistake, it would not be binding on the parties.
Denning LJ said: ‘Even if the court cannot point to the actual alleged error, nevertheless, if the figure itself is so extravagantly large or so inadequately small that the only conclusion is that he must have gone wrong somewhere, then the court will interfere much in the same way as the Court of Appeal will interfere with an award of damages if it is a wholly erroneous estimate.’
Judges: Denning LJ
References:  1 All ER 749,  Ch 409
- Dean -v- Prince, , Appeal from, ( 2 All ER 636,  Ch 590)
- In re Bird Precision Bellows Ltd, CA, Applied, ( Ch 658,  3 All ER 523)
A company, at the relevant time director controlled, made a payment to its managing director in consideration for his undertaking not to compete with the company within five years of the date when he would leave its service.
Held: The transaction was one involving a commercial basis to buy an asset of value to the company and should not be treated as a distribution for the benefit of the managing director.
Judges: Harman J
References: (1954) 35 TC 230,
- Beak -v- Robson, HL, Cited, ((1942) 25 TC 33)
- RCI Europe Ltd -v- Kate Woods (HM Inspector of Taxes), ChD, Cited, (Times 09-Jan-04, Bailii,  EWHC 3129 (Ch))
A court does not have power to rectify a will.Court: ChD
Judges: Templeman J
References:  1 WLR 16,  All ER 3 1037
Blackburne J discussed what would amount to a clerical error so as to allow rectification: ‘The essence of the matter is that a clerical error occurs when someone, who may be the testator himself, or his solicitor, or a clerk or a typist, writes something which he did not intend to insert or omits something which he intended to insert. . . The remedy is only available if it can be established not only that the will fails to carry out the testator’s instructions but also what those instructions were.’Court: ChD
Judges: Blackburne J VC
Statutes: Administration of Justice Act 1982 2091)(a)
References:  EWHC 1080 (Ch),  WTLR 1105
The fob contract has become a flexible instrument and it does not necessarily follow that the buyer is an original party to the contract of carriage. The effect of article III, r. 2 of the Hague-Visby Rules was not to override freedom of contract to reallocate responsibility for the functions described in that rule: ‘The phrase ‘shall properly and carefully load’ may mean that the carrier shall load and that he shall do it properly and carefully: or that he shall do whatever loading he does properly and carefully. The former interpretation perhaps fits the language more closely, but the latter may be more consistent with the object of the Rules. Their object, as it is put, I think, correctly in Carver’s Carriage of Goods by Sea, 9th ed (1952), p 186, is to define not the scope of the contract service but the terms on which that service is to be performed. The extent to which the carrier has to undertake the loading of the vessel may depend not only upon different systems of law but upon the custom and practice of the port and the nature of the cargo. It is difficult to believe that the Rules were intended to impose a universal rigidity in this respect, or to deny freedom of contract to the carrier. The carrier is practically bound to play some part in the loading and discharging, so that both operations are naturally included in those covered by the contract of carriage. But I see no reason why the Rules should not leave the parties free to determine by their own contract the part which each has to play. On this view the whole contract of carriage is subject to the Rules, but the extent to which loading and discharging are brought within the carrier’s obligations is left to the parties themselves to decide.’Court: QBD
Judges: Devlin J
Statutes: Hague-Visby Rules III r2
References:  2 QB 402,
- Evergreen Marine Corp -v- Aldgate Warehouse (Wholesale) Ltd, ComC, Cited, (Bailii,  EWHC 667 (Comm))
- Jindal Iron and Steel Co Ltd and others -v- Islamic Solidarity Shipping Company Jordan Inc ('The Jordan II'), HL, Cited, (Bailii,  UKHL 49, House of Lords, Times 26-Nov-04,  1 WLR 1363,  1 All ER 175)
- GH Renton & Co Ltd -v- Palmyra Trading Corporation of Panama, HL, Approved, ( AC 149)
- The Ciechocinek, CA, Applied, ( 1 Lloyds Rep 489)
- The Arawa, , Applied, ( 2 Lloyd's Rep 416)
- The Filikos, , Applied, ( 2 Lloyd's Rep 555)
- The Strathnewton, CA, Applied, ( 1 Lloyd's Rep 219)
- The Panaghia Tinnou, , Applied, ( 2 Lloyd's Rep 586)
- The Holstencruiser, , Applied, ( 2 Lloyd's Rep 378)
- The Coral, CA, Applied, ( 1 Lloyd's Rep 1)
- J I MacWilliam Company Inc -v- Mediterranean Shipping Company SA; The 'Rafaela S', HL, Cited, (Times 21-Feb-05, House of Lords, Bailii,  UKHL 11,  2 All ER 86)
It was argued that section 9 of the 1861 Act extended the law of murder beyond the offence of murder at common law where the victim had to be a British subject, otherwise the requirement that the killing should be ‘within the Queen’s peace would not be satisfied. As to the comment of Lord Ellenborough in R v Serva ‘That, of course, is entirely intelligible. Nobody would suggest that an English court could try an alien for an offence not committed on English soil.’ Speaking as to whether the victim of a killing committed abroad had historically to be a British subject if the killing was to amount to murder. He observed: ‘It was no doubt to allay any doubts that there may have been on the subject that section 9 of the Offences against the Person Act 1861 is in such wide terms . . We have no doubt that when the word ‘murder’ is found in a statute it has the meaning which has always attached to it throughout the ages, namely, an unlawful killing with malice aforethought.’Court: CMAC
Judges: Lord Goddard CJ
Statutes: Offences Agansit the Persons Act 1981 9
References:  1 QB 170,
- R -v- Serva, , Cited, ((1846) 2 C & K 53)
The plaintiffs sued the defendants for negligence in surveying a property. Before the action commenced a meeting had taken place between the plaintiffs’ solicitor and a partner in the defendants’ firm of surveyors to see if the matter could be settled without litigation. The defendants agreed at the meeting to make enquiries to see if they could obtain insurance cover against possible risk of damage to the house so that litigation could be avoided. After the interview the defendants obtained a report from another surveyor for the purpose of attempting to obtain insurance cover. No settlement was reached and the action commenced. The defendants disclosed the existence of the report in their affidavit of documents but claimed privilege from production on the ground that it was made in pursuance of a without prejudice discussion between the plaintiffs’ solicitor and the defendants’. The master, and the judge had upheld the defendant’s claim to privilege.
Held: The appeal failed.
Romer LJ said: ‘It seems to me that it would be monstrous to allow the plaintiff to make use – as he certainly would make use – for his own purposes as against the defendants of a document which is entitled to the protection of ‘without prejudice’ status.’
Denning LJ said: ‘after referring to Whiffen v. Hartwright ‘It is said, however, that, apart from legal professional privilege, there is a separate head of privilege on the ground that the documents came into existence on the understanding that they were not to be used to the prejudice of either party. ‘Without prejudice’ does not appear as a head of privilege in the White Book; but in Bray on Discovery at p. 308 it is stated: ‘The right to discovery may under very special circumstances by lost by contract as where correspondence passed between the parties’ solicitors with a view to an amicable arrangement of the question at issue in the suit on a stipulation that it should not be referred to or used to the defendant’s prejudice in case of a failure to come to an arrangement.’
That proposition is founded on Whiffen v. Hartwright (1848) 11 Beav. 111, 112, where Lord Langdale H.R. refused to order the production of letters which passed ‘without prejudice,’ observing that he ‘did not see how the plaintiff could get over this express agreement, though he by no means agreed, that the right of discovery was limited to the use which could be made of it in evidence.’ The Master of the Rolls there affirms the undoubted proposition that production can be ordered of documents even though they may not be admissible in evidence. Nevertheless, if documents come into being under an express, or, I would add, a tacit, agreement that they should not be used to the prejudice of either party, an order for production will not be made. This case seems to me to fall within that principle. This report was clearly made as a result of a ‘without prejudice’ interview and it was made solely for the purposes of the ‘without prejudice’ negotiations. The solicitor for the plaintiff himself says in his affidavit that at the time of the interview it was contemplated that steps such as these should be undertaken. I find myself, therefore, in agreement with the decision of Master Burnand and the judge that this is not a case where production should be ordered.’
Judges: Denning LJ, Romer LJ
References:  1 WLR 271,  1 All ER 247
- Rush & Tompkins Ltd -v- Greater London Council and Another, HL, Cited, ( AC 1280, Bailii,  UKHL 7,  3 All ER 737)
- Cutts -v- Head and Another, CA, Cited, ( Ch 290, Bailii,  EWCA Civ 8,  2 WLR 349,  1 All ER 597)
- Rush & Tomkins Ltd -v- Greater London Council, HL, Cited, ( AC 1280,  3 WLR 939, Bailii,  3 All ER 737,  UKHL 7)
A mother had left shares her in a company to three daughters for life with remainder to their children who should attain 21. The three daughters and their children directed the trustees to appoint the eldest of the daughters as their proxy, or to vote in a certain way on the resolutions at the meeting of the company. The trustees declined stating that they would use their votes in accordance with their discretion. The beneficiaries applied to court to direct the trustees to comply with their directions.
Held: The court refused the application.
Judges: Upjohn J
References:  1 WLR 5,  2 All ER 1558
- Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) -v- Commissioners of Inland Revenue, CA, Cited, (Times 11-Sep-97, Gazette 10-Sep-97, Bailii,  EWCA Civ 2212,  4 All ER 395,  STC 1234)
A husband was charged with rape of his wife after she had left him and petitioned for divorce. He was also charged with an assault.
Held: There was no evidence which entitled the court to say that the wife’s implied consent to marital intercourse had been revoked by an act of the parties or by an act of the court. Referring to Jackson: ‘It seems to me, on the reasoning of that case, that, although the husband has a right to marital intercourse, and the wife cannot refuse her consent, and although if he does have intercourse against her actual will, it is not rape, nevertheless he is not entitled to use force or violence for the purpose of exercising that right. If he does so, he may make himself liable to the criminal law, not for the offence of rape, but for whatever other offence the facts of the particular case warrant. If he should wound her, he might be charged with wounding or causing actual bodily harm, or he may be liable to be convicted of common assault. The result is that in the present case I am satisfied that the second count is a valid one and must be left to the jury for their decision.’ and ‘The point has been taken that there is no evidence of bodily harm. The bodily harm alleged is said to be the result of the prisoner’s action, that is, if the jury accept the evidence that he threw the wife down three times. There is evidence that afterwards she was in a hysterical and nervous condition, but it is said by counsel that that is not actual bodily harm. Actual bodily harm, according to Archbold 32nd Edition page 959 includes ‘any hurt or injury calculated to interfere with the health or comfort of the prosecutor’. There was a time when shock was not regarded as bodily hurt, but the day has gone by when that could be said. It seems to me now that if a person is caused hurt or injury resulting, not in any physical injury but in an injury to her state of mind for the time being, that is within the definition of actual bodily harm, and on that point I would leave the case to the jury.’
Judges: Lynskey J
References:  2 All ER 529,  2 WLR 138,  2 QB 282,  38 Cr App R 1
- Rex -v- Clarke, , Followed, ( 2 All ER 448)
- Regina -v- Jackson, CA, Cited, ([1891-4] All ER Rep 61,  1 QB 67 I)
Lord Goddard CJ said: ‘The headmistress did not suspend this child at all. She was always perfectly willing to take her in; all that she wanted was that she should be properly dressed. Suspending is refusing to admit to the school; in this case the headmistress was perfectly willing to admit the girl but was insisting that she be properly dressed.’
He discussed the circumstances in which section 39 came to be enacted, saying: ‘It appears to the court highly probable that the reason for that was that it was considered desirable to abolish the decision in Maher’s case and to substitute for it a new section which would not leave it open to justices to find any reasonable excuse parents might set up, but to confine the excuses for not sending a child to school to the reasons set out in subsection (2)(a), (b) and (c). That is the only construction which this court feels able to put upon section 39(2).
We were reminded of Jenkins v. Howells, which was heard in 1949, and in which I was sitting with Oliver and Cassells JJ. I do not hesitate to say that if it had been open to us to find that there was a reasonable excuse for not sending the child to school, we would have found it. It was a very hard case, but we felt that the statute was too strong; we could not go into the question of reasonableness.’
Judges: Lord Goddard CJ
Statutes: Education Act 1944 39
References:  1 QB 61,
- Begum (otherwise SB), Regina (on the Application of) -v- Denbigh High School, HL, Cited, (Bailii,  UKHL 15, Times 23-Mar-06,  2 WLR 719,  1 AC 100,  2 All ER 487,  HRLR 21,  1 FCR 613,  UKHRR 708)
Stable J, noted that the case concerned a sweetened condensed milk very similar to the product that his Honour remembered consuming in large quantities at preparatory school, and said: ‘As I understand the law it is this, that if you publish a defamatory statement about a man’s goods which is injurious to him, honestly believing that it is true, your object being your own advantage and no detriment to him, you obviously are not liable. If you publish a statement that turns out to be false but which you honestly believe to be true, but you publish that statement not for the purpose of protecting your own interests and achieving some advantage to yourself but for the purpose of doing him harm, and it transpires, contrary to your belief, that the statement that you believed to be true has turned out to be false, notwithstanding the bona fides of your belief because the object that you had in mind was to injure him and not to advantage yourself, you would be liable for an injurious falsehood.’Court: QBD
Judges: Stable J
References:  RPC 220,
‘The principle that, once the summing up is concluded, no further evidence ought to be given, must be maintained in every case, and, if further evidence is allowed at that stage, . . the conviction will be quashed.’ The court considered the nature of a summons: ‘A summons is the result of a judicial act. It is the outcome of a complaint which has been made to a magistrate and upon which he must bring his judicial mind to bear and decide whether or not on the material before him he is justified in issuing a summons.’Court: QBD
Judges: Lord Goddard CJ
References:  41 CAR 226,
- Regina -v- Owen, CCA, Cited, ( 36 CAR 16)
- Regina -v- Karakaya, CACD, Cited, (Bailii,  EWCA Crim 346, Times 28-Feb-05,  2 Cr App R 5,  Crim LR 574)
- Regina -v- West London Metropolitan Stipendiary Magistrate, ex parte Klahn, QBD, Cited, ( 1 WLR 933)
The plaintiff complained that he had developed a spastic paraplegia following a lumbar puncture.
Held: An inference of negligence was rebutted. However the hospital authority was held to be vicariously liable for the acts or omissions of the professional staff at its hospital who had the care of one of its patients at the material time.
Judges: Denning LJ, Somervell LJ, Morris LJ
References:  2 QB 66,  2 All ER 131,  2 WLR 915,  EWCA Civ 7
- A -v- Ministry of Defence and another, QBD, Cited, (Times 16-May-03, Gazette 03-Jul-03)
- Iman Abouzaid -v- Mothercare (Uk) Ltd, CA, Cited, (Times 20-Feb-01, Bailii,  EWCA Civ 348)
- Farraj and Another -v- King's Healthcare NHS Trust (KCH) and Another, CA, Cited, (Bailii,  EWCA Civ 1203, (2010) 11 BMLR 131,  PIQR P7,  Med LR 1)
Jessel MR held that: “It is settled law that when a testator has given a pure discretion to trustees as to the exercise of a power, the court does not enforce the exercise of the power against the wish of the trustees, but it does prevent them from exercising it improperly.”Court: CA
Judges: Lord Jessel MR
References: (1882) 21 ChD 571,
A Russian bank operated in Russia. It had no branch in England, but did have an account, in credit, with a bank in London. On December 15, 1917 the bank was nationalized by a decree of the soviet government. On December 16th 1917, two documents were signed, purporting to be orders from the Russian bank to the one in London directing it to pay to the order of O, a russian, £10,000 in the one case and £2000 in the other. The Russian bank was dissolved under a Russian degree in or about January 1918, and any liability of the banker to O was extinguished in Russian law. On May 30 1932 after the dissolution of the russian bank a winding up order in respect of it was made in England under the Companies act 1929 section 338. On September 21, 1932, O, being then domiciled in France, lodged a proof in the winding up in respect of an alleged that the £12,000 being the aggregate of the two sums of £10,000 and £2000. No application for leave to serve a writ out of the jurisdiction for the purpose of recovering either of the two sums was made. O died and assets having come into the hands of the liquidator and the liquidator having rejected the proof on November 12 1952, O’s widow and administratrix applied to the court by summons dated December 3 1952, to reverse the liquidator’s decision.
Held: The debts of £10,000 and £2,000 were locally situate in Russia where the russian bank had resided, and even if the debts could have been recovered in England or by action instituted in england, that fact would not have made them locally situate in England ; and accordingly, the debts remained subject to the nationalisation and other degrees of the Soviet government, and the proof was rightly rejected.
A chose in action must be regarded as situated in a country where it is enforceable. A possibility of serving process out of the jurisdiction under Order 11 does not have the effect of altering the local situation of a chose in action so as to bring it within the jurisdiction.
Judges: Romer LJ
References:  2 All ER 746,  1 WLR 1108, 98 Sol Jo 557
- Ian Wight Michael Pilling Michael W Mackey -v- Eckhardt Marine GmbH, PC, Cited, (PC, Bailii,  UKPC 37, PC, Times 06-Jun-03,  1 AC 147)
ECJ Advocate General’s Opinion – Social security for migrant workers – Retirement benefits – Applicability of social security agreements between Member States – Refusal by the authorities of a Member State to grant retirement benefits for periods of employment on its territory for a returnee home of another member on the basis of regulations of the Union StateCourt: ECJ
Judges: Mr Melchior Wathelet
References: C-401/13,  EUECJ C-401/13_O, ECLI: EU: C: 2014, 2161
By an assignment in April 1946, the plaintiff acquired the lease of a shop and the tobacconist’s business carried on ther. The premises, were on a street with a ground floor room with a flat roof top. On the two front sides the shop was bounded by streets and on one side of the back was an adjoining building of three stories. During the lease, the defendants, wholesale tobacconists, displayed three advertising signs on the wall with the adjoining building about the shop. The signs made of sheet metal mounted on a frame which fixed against the wall but, on account of the mounting, protruded a distance of 4 inches into the air space above the flat roof of the shop. In April 1948 the landlords gave to the owners of the adjoining building consent to a large new sign in place of the existing signs. In December 1948, the landlords granted a new lease of the shop to the plaintiff. By clause 1 of the lease, which contained the parcels, the premises devised to the plaintiff were expressed to be subject to ‘all that right so ds wants to any of the adjacent property, and by clause 2 the plaintiff covenanted not to permit any sign or advertisement to be posted on or over any part of the exterior at the shop and premises. In January 1950, no new sign having yet been affixed on the adjoining building, its owners again obtained the permission of the landlord of the plaintiffs shop for the defendants to substitute a new large advertising sign for the existing the smaller ones. A new sign was elected by the defendants in 1950 with the plaintiff’s knowledge. Its total length was about 20 feet, and the maximum distance by which part of the sign projected from the wall and over the building was 8 inches. From time to time the defendants servants had access to the sign, from the plaintiff’s shop and with his knowledge, to carry out maintenance work and repairs. In December 1953 as a result of a business dispute between the plaintiff and the defendants, the plaintiffs asked the defendants to remove the sign. After the dispute was settled, the plaintiff on being asked by the descendants whether he still wanted the side removed, replied that it could remain. Further arose between the parties, and the plaintiff gave notice to the defendant to remove the sign, and the defendants having failed to do so now brought an action against them for trespass.
Held: 1 the air space above the shop was part of the premises demised to the plaintiff on a true construction of the lease of December 1948 there was nothing to displace the prima facie conclusion that the demise of the premises included the air space above the shop; 2 when in January 1950, the landlords consented to the substitution of the new sign, they could not derogate from the demise of the airspace in December 1948 to the plaintiff; 3 the plaintiffs conduct in allowing the sign to remain on the wall of the adjoining building from 1950 onwards did not estop him from subsequently requiring it to be removed, because a be hard, as most, mary represented to the defendants but he would not object to the sign in future and representation of an intention did not give rise to an estoppel; and on the facts, the descendants had not been induced by the plantiff’s conduct to act to their prejudice to such an extent as to oblige them to continue to display the sign: 4 The invasion of the plaintiff’s air-space by the sign amounted to a trespass on the part of the defendants and not merely to a nuisance. On the facts of the case, although the injury to the plaintiffs legal rights was small, he was entitled to a mandatory injunction requiring the defendants to remove that sign.
References:  2 QB 344,
The landlord in a weekly tenancy sought to recover from his tenant, the sums expanded by him on repairs to the demised premises. The landlord alleged that it was an implied term of the tenancy that the tenant would use the premises in a tenant-like manner, and would keep them wind and watertight, and would affect fair and tenant-like repairs to them, in particular, the alleged defects in the premises which included damp and stained paster on the internal walls, a cracked and broken external wall, window sills leaking weather-proof joints, and with decayed paintwork and a leak in the hot water boiler.
Held: The defects particularised were due to fair wear and tear for which a weekly tenant was not liable. His only obligation is to use the premises in a tenant-like manner and therefore, the landlord was not entitled to recover.
Lord Denning said: ‘The tenant must take proper care of the place. He must, if he is going away for the winter, turn off the water and empty the boiler. He must clean the chimneys, where necessary, and also the windows. He must mend the electric light when it fuses. He must unstop the sink when it is blocked by his waste. In short, he must do the little jobs about the place which a reasonable tenant would do. In addition, he must, of course, not damage the house, wilfully or negligently; and he must see his family and guests do not damage it: and if they do, he must repair it.’ and ‘if the house falls into disrepair through fair wear and tear or lapse of time, or for any reason not caused by him, the tenant is not liable to repair it.’
Judges: Lord Denning
References:  2 All ER 1118,  1 QB 15,  3 WLR 702, 97 Sol Jo 742
- Wycombe Health Authority -v- Barnett, CA, Cited, ((1982) 264 EG 619, (1982) 5 HLR 84)
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