In re S (A Barrister); 1970

(Inns of Court) The regulation of barristers has been delegated by the judges to the Inns of Court.
Paull J said: ‘all through the history of the Inns (of Court) . . a call to the bar does not mean a call to the bar of any court. It only means a call to the bar of the particular Inn.’ And further that since 1292 the power to ‘provide and ordain . . attorneys and lawyers . . was left to the discretion of the justices’ so that: ‘from that time onwards for many years not all those who had been called to the bar of their Inns were allowed to practise in the courts at Westminster. From time to time regulations were made by the judges prescribing the period of time which must elapse after call to the bar of an Inn before the right to audience in the courts was exercised. By the middle of the 17th century it was accepted by the judges that, provided the call had been published in the Inn and the oaths of allegiance and supremacy taken, no further qualification was required to entitle the person called to the bar of his Inn to appear in any of the King’s courts for any client who saw fit to retain his services . . It is clear that the judges never passed over the whole control to the Inns. They kept quite a tight rein on the internal affairs of the Inn, particularly in so far as such affairs related to those who might practise before them. This is of great importance because from time to time the word ‘delegation’ appears in reference to the powers of the Inns given to them by the judges. One of the problems is the precise meaning of that word ‘delegation’ in the context in which it has been used.’
Paull J then observed: ‘The latest example of the use of the word ‘delegation’ is in Attorney-General of Gambia v N’Jie . . where Lord Denning uses the words: ‘By the common law of England the judges have the right to determine who shall be admitted to practise as barristers and solicitors: and, as incidental thereto, the judges have the right to suspend or prohibit from practice. In England this power has for a very long time been delegated, so far as barristers are concerned, to the Inns of Court: and, for a much shorter time, so far as solicitors are concerned, to the Law Society.’
It will be noticed that Lord Denning uses the same word ‘delegated’ in regard to the rights of the judges over who should appear before them as advocates in the case of barristers and their rights in the case of solicitors. Clearly the word ‘delegate’ so used cannot have precisely the same meaning in each case, since the rights of solicitors are to some extent governed by Acts of Parliament and solicitors do not appear before High Court judges as advocates.
It seems clear that Lord Mansfield in his use of the word ‘delegate’ was not using that word in the narrow sense in which it is sometimes used today and which is the basis of the doctrine ‘delegatus non potest delegare'; neither was Lord Denning. Both were using it in the sense that, in regard to the Inns, the judges over a long period, from time to time, had concurred in the Inns performing the duty of selecting those persons who were fit and proper persons to be called to the bar and to be entitled to a right of audience in the courts and the duty of suspending or prohibiting such persons from practice. The exercise of these duties has been at all times, and remains, subject to the visitorial jurisdiction of the judges. Further, the judges in relation to their judicial duties as to who should have the right of audience have never divested themselves of those duties, nor could they ever do so.’

Date: 01-Jan-1970
Judges: Paull, Lloyd-Jones, Stamp, James and Blain JJ
References: [1970] 1 QB 160,
Cited By:

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Filed under Legal Professions

Ceni -v- Italy; ECHR 16-Dec-2014

Court: ECHR
Date: 16-Dec-2014
Statutes: European Convention on Human Rights
Links: Bailii,
References: 25376/06 - Chamber Judgment, [2014] ECHR 1395

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Filed under Human Rights

Buzadji -v- The Republic Of Moldova; ECHR 16-Dec-2014

Court: ECHR
Date: 16-Dec-2014
Statutes: European Convention on Human Rights
Links: Bailii,
References: 23755/07 - Chamber Judgment, [2014] ECHR 1398

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Filed under Human Rights

Buti And Others -v- Romania; ECHR 16-Dec-2014

Court: ECHR
Date: 16-Dec-2014
Statutes: European Convention on Human Rights
Links: Bailii,
References: 11472/07 68568/10 70670/10 71506/10 2804/12 - Committee Judgment, [2014] ECHR 1402

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Filed under Human Rights

Belhadj & Others -v- The Security Service, SIS, GCHQ, Home Office and FCO; IPT 7-Feb-2014

Court: IPT
Date: 07-Feb-2014
Links: Bailii,
References: [2014] UKIPTrib 13_132-9H,

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Filed under Human Rights, Police

BA and Others -v- Cleveland Police; IPT 5-Jul-2012

Court: IPT
Date: 05-Jul-2012
Links: Bailii,
References: [2012] UKIPTrib 11_129,

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Filed under Human Rights, Police

AA101792013; AIT 20-Aug-2014

Court: AIT
Date: 20-Aug-2014
Links: Bailii,
References: [2014] UKAITUR AA101792013,

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Filed under Immigration

64 Fitzjohns Avenue – Camden : London; LVT 20-Aug-2014

LVT Appointment of Manager

Court: LVT
Date: 20-Aug-2014
Links: Bailii,
References: [2014] EWLVT LON_LV_AOM_00AG_0

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Filed under Landlord and Tenant

44 Woodcote Fold – Bradford : Northern : Manchester; LVT 19-Aug-2014

LVT Service Charges

Court: LVT
Date: 19-Aug-2014
Links: Bailii,
References: [2014] EWLVT MAN_LV_SVC_00CX_0

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Filed under Landlord and Tenant

4 Hitchin Square – Tower Hamlets : London; LVT 19-Aug-2014

LVT Service Charges

Court: LVT
Date: 19-Aug-2014
Links: Bailii,
References: [2014] EWLVT LON_LV_SVC_00BG_0

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Filed under Landlord and Tenant

25 Alexandra Road – Barnet : London; LVT 19-Aug-2014

Forfeiture

Court: LVT
Date: 19-Aug-2014
Links: Bailii,
References: [2014] EWLVT LON_LV_FFT_00AC_0

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Filed under Landlord and Tenant

Tchenguiz and Others -v- Director of The Serious Fraud Office; ComC 11-Dec-2014

The applicant sought permission to use document disclosed to him by the Serious Fraud Office in proceedings against him, in connection with further proceedings in Guernsey.

Court: ComC
Date: 11-Dec-2014
Judges: Eder J
Links: Bailii,
References: [2014] EWHC 4199 (Comm),

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Filed under Litigation Practice

Tate -v- Ryder Holdings Ltd and Another; QBD 16-Dec-2014

The court considered the quantum of damages after the claimant had been severely injured when knocked down by a bus.

Court: QBD
Date: 16-Dec-2014
Judges: Kenneth Parker J
Links: Bailii,
References: [2014] EWHC 4256 (QB),

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Filed under Damages, Personal Injury

Sobolewska -v- Threlfall; QBD 12-Dec-2014

The claimant sought damages after suffering severe injuries when coming into contact with a car driven by the defendant in a supermarket car park.

Court: QBD
Date: 12-Dec-2014
Judges: Foskett J
Links: Bailii,
References: [2014] EWHC 4219 (QB),

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Filed under Personal Injury

Savoye and Savoye Ltd -v- Spicers Ltd; TCC 15-Dec-2014

The claimant sought to enforce an arbtrators award. The defendant denied that ‘construction operations’ had been involved.

Court: TCC
Date: 15-Dec-2014
Judges: Akenhead J
Statutes: Housing Grants, Construction and Regeneration Act 1996 105
Links: Bailii,
References: [2014] EWHC 4195 (TCC),

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Filed under Arbitration, Construction

Imtech Inviron Ltd -v- Loppingdale Plant Ltd; TCC 12-Dec-2014

Costs of an application for summary judgment to enforce an adjudicator’s award

Court: TCC
Date: 12-Dec-2014
Judges: Edwards-Stuart J
Links: Bailii,
References: [2014] EWHC 4109 (TCC),

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Filed under Arbitration, Costs

Heneghan -v- Manchester Dry Docks Ltd and Others; QBD 11-Dec-2014

The claimant as personal representative, claimed that the deceased had died after suffering adenocarcinoma of the lung after exposure to asbestos whilst working for the defendants.

Court: QBD
Date: 11-Dec-2014
Judges: Jay J
Links: Bailii,
References: [2014] EWHC 4190 (QB),

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Filed under Personal Injury

Guntrip -v- Parole Board of England and Wales and Another; Admn 17-Dec-2014

Court: Admn
Date: 17-Dec-2014
Links: Bailii,
References: [2014] EWHC 4180 (Admin),

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Filed under Prisons

Amtrust Europe Ltd -v- Trust Risk Group Spa; ComC 10-Dec-2014

The parties disputed sums said to be due under arrangements selling medical malpractice insurance in Italy.

Court: ComC
Date: 10-Dec-2014
Judges: Blair J
Links: Bailii,
References: [2014] EWHC 4169 (Comm),

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Filed under Contract

Abbotskerswell Parish Council -v- Teignbridge District Council and Another; Admn 16-Dec-2014

Application to quash respondent’s local plan, alleging breach of the Habitats Directive.

Court: Admn
Date: 16-Dec-2014
Judges: Lang J
Statutes: Planning and Compulsory Purchase Act 2004, EU Council Directive 92/43/EEC
Links: Bailii,
References: [2014] EWHC 4166 (Admin),

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Filed under Environment, Planning

In re P (A Child); CA 16-Nov-2006

Appeal by mother against order for committal to prison for breach of order requiring her to allow contact for the child with the father.

Court: CA
Date: 16-Nov-2006
Judges: Sir Mark Potter P, Neuberger, Wilson LJJ
Links: Bailii,
References: [2006] EWCA Civ 1792, [2007] Fam Law 299, [2007] 1 FLR 1820

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Filed under Children, Contempt of Court

In re P and P (Children); CA 24-Jun-2009

Directions as to the obtaining of a report from a forensic pathologist.

Court: CA
Date: 24-Jun-2009
Judges: Smith, Wall LJJ
Links: Bailii,
References: [2009] EWCA Civ 610,

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Filed under Children

In re P (A Child); CA 30-Jan-2008

Application by the mother of a female child born on 7 May 2006 for permission to appeal against care and placement orders .

Court: CA
Date: 30-Jan-2008
Judges: Wall LJ
Links: Bailii,
References: [2008] EWCA Civ 15,

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Filed under Children

In re P (A Child); CA 16-Apr-2008

Mother’s application for permission to appeal against order under the 1969 Act.

Court: CA
Date: 16-Apr-2008
Judges: Rix, Wilson LJJ
Statutes: Family Law Reform Act 1969 20
Links: Bailii,
References: [2008] EWCA Civ 499,

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Filed under Children

In re P (A Child); CA 20-May-2010

After being taken into foster care, the child indicated possible abuse by the father.

Court: CA
Date: 20-May-2010
Judges: Thorpe LJ,Etherton LJ, Morgan J
Links: Bailii,
References: [2010] EWCA Civ 672,

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43-47 Boleyn Road – Islington : London; LVT 20-Aug-2014

LVT No Fault Right To Manage

Court: LVT
Date: 20-Aug-2014
Links: Bailii,
References: [2014] EWLVT LON_LV_NFR_00AU_0

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Filed under Landlord and Tenant

Unison (No 2), Regina (on The Application of) -v- The Lord Chancellor; Admn 17-Dec-2014

The union sought to challenge by judicial review the systems for charges for court fees for claims brought before the employment tribiunals.
Held: It failed.

Court: Admn
Date: 17-Dec-2014
Judges: Elias LJ, Foskett J
Statutes: Tribunals Courts and Enforcement Act 2007 42
Links: Bailii,
References: [2014] EWHC 4198 (Admin),

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Filed under Employment

Si.Mobil -v- Commission (Judgment (Extracts)); ECFI 17-Dec-2014

ECJ Competition – Abuse of dominant position – Slovenian mobile telephone services market – Decision rejecting a complaint – Case being dealt with by the competition authority of a Member State – No EU interest

Court: ECFI
Date: 17-Dec-2014
Links: Bailii,
References: T-201/11, [2014] EUECJ T-201/11, ECLI:EU:T:2014:1096

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Filed under European

Pilkington Group And Others -v- Commission; ECFI 17-Dec-2014

ECJ Judgment – Competition – Agreements, decisions and concerted practices – European market in carglass – Decision finding an infringement of Article 81 EC – Market-sharing agreements and exchanges of commercially sensitive information – Fines – Rights of defence — Retroactive application of the 2006 Guidelines on the method of setting fines – Value of sales – Passive or minor role – Deterrent effect of the fine – Taking into account fines previously imposed – Ceiling of the fine – Exchange rate for the calculation of the ceiling of the fine

Court: ECFI
Date: 17-Dec-2014
Links: Bailii,
References: T-72/09, [2014] EUECJ T-72/09, ECLI:EU:T:2014:1094

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Filed under Commercial, European

Lloyds TSB Bank Plc (Antrobus Deceased) -v- Inland Revenue (No 1); SCIT 17-Oct-2002

SCIT INHERITANCE TAX – agricultural property relief – freehold house which was owned and occupied by the deceased – agreed that it was a farmhouse – whether it was of a character appropriate to the property – yes – IHTA 1984 s 115(2).
Miss Antrobus had lived in a substantial freehold house, surrounded by about 126 acres of freehold land and 6.54 acres of tenanted land all of which was agricultural land or pasture. The Inland Revenue agreed the house was a farmhouse, but questioned whether the farmhouse was ‘of a character appropriate to the property’ within the meaning of section 115(2), ‘the property’ being the 126 acres of freehold land and the 6.54 acres of tenanted land which constituted the agricultural land or pasture. The taxpayer argued that the test as to whether a farmhouse was ‘of a character appropriate to the property’ was whether it properly belonged to the surrounding farm.
Held: The dwellinghouse was appropriate, by reference to its size, content and layout, with the farm buildings and the particular area of farmland being farmed: ‘the principles which have been established for deciding whether a farmhouse is of a character appropriate to the property may be summarised as: first, one should consider whether the house is appropriate by reference to its size, content and layout, with the farm buildings and the particular area of farmland being farmed (Korner); secondly, one should consider whether the house is proportionate in size and nature to the requirements of the farming activities conducted on the agricultural land or pasture in question (Starke); thirdly that although one cannot describe a farmhouse which satisfies the ‘character appropriate’ test one knows one when one sees it (Dixon); fourthly, one should ask whether the educated rural layman would regard the property as a house with land or a farm (Dixon); and, finally, one should consider the historical dimension and ask how long the house in question has been associated with the agricultural property and whether there was a history of agricultural production (Dixon). ‘

Court: SCIT
Date: 17-Oct-2002
Judges: Dr Nuala Brice
Statutes: Inheritance Tax Act 1984 8115(2)
Links: Bailii,
References: [2002] UKSC SPC00336,
Cases Cited:
Cited By:

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Filed under Inheritance Tax

Picken -v- Scottish Ministers; SIC 20-Aug-2014

Expenditure on travel and subsistence cards – On 13 April 2013, Mr Andrew Picken asked the Scottish Ministers (the Ministers) for expenditure on travel and subsistence cards by Scottish Government ministers, excluding the First Minister, since 2007. The Ministers did not respond to this request. Following a review, the Ministers disclosed some information but withheld the names of the accommodation in which Ministers had stayed. Mr Picken remained dissatisfied and applied to the Commissioner for a decision.
Following an investigation, during which the Ministers disclosed more information, the Commissioner required the Ministers to disclose the withheld information (the names of hotels) to Mr Picken.

Court: SIC
Date: 20-Aug-2014
Links: Bailii,
References: [2014] ScotIC 182_2014,

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Filed under Information, Scotland

Hamas -v- Council; ECFI 17-Dec-2014

ECJ Judgment – Common Foreign and Security Policy – Restrictive measures against certain persons and entities in the context of the fight against terrorism – Freezing of funds – Evidence base of freezing funds – Reference to acts of terrorism – need for a competent authority decision within the meaning of Common Position 2001/931 – Obligation to state reasons – Modulation in time the effects of a cancellation

Court: ECFI
Date: 17-Dec-2014
Judges: NJ Forwood, President, F. Dehousse (Rapporteur) and J. Schwarcz, Judges
Links: Bailii,
References: T-400/10, [2014] EUECJ T-400/10, ECLI: EU: T: 2014: 1095

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Filed under Banking, European, News

Attorney-General -v- Antrobus; ChD 1905

The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that there existed public rights of access to the ancient site of Stonehenge, despite the historic user. There could be no public right of way to the monument acquired by mere user or by the fact that the public had been in the habit of visiting it: ‘Now the cases establish that a public path is prima facie a road that leads from one public place to another public place-or as Holmes L. J. suggests in the Giant’s Causeway case there cannot prima facie be a right for the public to go to a place where the public have no right to be. But the existence of a terminus ad quem is not essential to the legal existence of a public road. -But in no case has mere user by the public without more been held sufficient’.
The public had no jus spatiandi or manendi–the right to stay or remain–within the circle.
Speaking of ‘the liberality with which landowners in this country have for years past allowed visitors free access to objects of interest on their property . . ‘, he said that: ‘It would indeed be unfortunate if the Courts were to presume novel and unheard of trusts or statutes from acts of kindly courtesy, and thus drive landowners to close their gates in order to preserve their property.’, and deplored the prospect that building public rights on the foundation of the liberality of landowners might lead them’to close their gates in order to preserve their property.’
Farwell J doubted the correctness of the proposition that dedication in the case of a rural cul-de-sac can be inferred from public use, although he conceded: ‘I venture to think that this expenditure of [public] money is the important consideration, and that in such a case the land-owner who has permitted the expenditure cannot be heard to say that a roadway on which he has allowed public money to be spent is his private road; but the mere transit of passengers to see a view or a house at the end will create no right, as Lord Cranworth says.’

Court: ChD
Date: 01-Jan-1905
Judges: Farwell J
References: [1905] 2 Ch 188,
Cited By:

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Filed under Land

Lloyds TSB Private Banking Plc (personal representative of Rosemary Antrobus deceased) -v- Inland Revenue (Capital Taxes); Re Cookhill Priory (No 2); LT 10-Oct-2005

LT TAX – Inheritance Tax – agricultural property relief – agricultural value – agricultural property – farmhouses – whether house occupied by ‘lifestyle’ farmer could be farmhouse – held bid of such person could not represent agricultural value – Inheritance Tax Act 1984 s 115(2) and (3)
George Bartlett QC : ‘a farmhouse for the purposes of section 115(2) is the house of the person who lives in it in order to farm the land comprised in the farm and who farms the land on a day to day basis. The agricultural value of the house in the present case therefore falls to be determined on the assumption that the perpetual covenant to be implied by virtue of section 115(3) would have prevented its use other than in this way. This would have excluded, therefore, the lifestyle purchaser whose principal reason for living in the house was the amenity afforded by it and by the land.’

Court: LT
Date: 10-Oct-2005
Judges: George Bartlett QC The President and Mr N J Rose FRICS
Links: Bailii,
References: [2005] EWLands DET_47_2004,
Cases Cited:

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Filed under Inheritance Tax, Land

Arrest Warrant of 11 April 2000 (Democratic Republic of the Congo -v- Belgium) (2000-2002); ICJ 14-Feb-2002

‘In customary international law, the immunities accorded to Ministers for Foreign Affairs are not granted for their personal benefit, but to ensure the effect of the performance of their functions on behalf of their respective States. In order to determine the extent of these immunities, the Court must therefore consider the nature of the functions exercised by a Minister for Foreign Affairs. He or she is in charge of his or her Government’s diplomatic activities and generally acts as its representative in international negotiations and intergovernmental meetings . . . In the performance of these functions, he or she is frequently required to travel internationally and thus must be in a position freely to do so whenever the need should arise.’ and
‘In civil matters we already see the beginnings of a very broad form of extraterritorial jurisdiction. Under the Alien Tort Claims Act, the United States, basing itself on a law of 1789, has asserted a jurisdiction both over human rights violations and over major violations of international law, perpetrated by non-nationals overseas. Such jurisdiction, with the possibility of ordering payment of damages, has been exercised with respect to torture committed in a variety of countries (Paraguay, Chile, Argentina, Guatemala), and with respect to other major human rights violations in yet other countries. While this unilateral exercise of the function of guardian of international values has been much commented on, it has not attracted the approbation of States generally.’

Court: ICJ
Date: 14-Feb-2002
Links: ICJ,
References: [2002] ICJ Rep 3,
Cited By:

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Filed under Criminal Practice, International

De Silva -v- Regina; CACD 17-Dec-2014

Renewed application for leave to appeal against a sentence for an offence of murder of life imprisonment with a minimum term of 32 years.

Court: CACD
Date: 17-Dec-2014
Links: Bailii,
References: [2014] EWCA Crim 2616,

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Filed under Criminal Sentencing

Lidl Stiftung -v- OHIM (Deluxe); ECFI 17-Dec-2014

ECJ Judgment – Community trade mark – Community figurative trade mark Deluxe – Absolute ground for refusal – Lack of distinctive character – Article 7, paragraph 1 b) of Regulation (EC) No 207/2009

Court: ECFI
Date: 17-Dec-2014
Judges: S. Papasavvas (Rapporteur), President, NJ Forwood and E. Bieliunas, Judges
Statutes: Regulation (EC) No 207/2009
Links: Bailii,
References: T-344/14, [2014] EUECJ T-344/14, ECLI:EU:T:2014:1097

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Filed under European, Intellectual Property

Peters -v- Sinclair; 6-May-1913

Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.

Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.

Date: 06-May-1913
Judges: Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
Links: Canlii,
References: 1913 CanLII 8 (SCC), 48 SCR 57
Cases Cited:

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Filed under Commonwealth, Land

Russell -v- College of North West London; EAT 20-Aug-2014

EAT Disability Discrimination – UNFAIR DISMISSAL – Reasonableness of dismissal
The claimant had been dismissed for redundancy. She was one of three disabled employees in the pool of six candidates from which one had to be selected for redundancy. The criteria used to determine who was selected, was their sickness absence record. The employers decided that account would be taken of disability related absences but only to the extent of 50% of them. The claimant had the highest level of days absent – and spells of absence – for non-disability related absence.
The Employment Tribunal rejected her claims of disability discrimination but upheld a claim for unfair dismissal on the basis that the employers had acted incorrectly and unfairly in using a particular formula to give effect to the 50% discount. It held that the formula proposed by the claimant was the correct one. It later awarded £10,000+ compensation after applying an 80% Polkey discount.
The claimant appealed from the dismissal of her Disability Discrimination claims and against the Polkey reduction.
APPEALS DISMISSED
On all three claims (direct discrimination, disability-related discrimination and indirect discrimination) the Tribunal had reached decisions open to them on the facts and had not erred in law. On the Polkey point, the Tribunal had given adequate reasons and had not reached a perverse conclusion.
The employer cross-appealed the unfair dismissal finding on the basis that the Tribunal had wrongly substituted its view, as to the correct formula for calculation, for that of the employer.
CROSS-APPEAL ALLOWED
The Tribunal had erred precisely as contended. The formula adopted by the employer was rational and had been adopted for explicitly stated reasons and after consideration of the alternative formula. It was within the range that might have been adopted by a reasonable employer.

Court: EAT
Date: 20-Aug-2014
Judges: Rec Luba QC
Links: Bailii,
References: [2014] UKEAT 0314_13_2008,

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Filed under Discrimination, Employment

Detention Action, Regina (on The Application of) -v- Secretary of State for The Home Department; CA 16-Dec-2014

The claimant charity assistig asylum seekers challenged the system of detaining applicants under a fast track system. The charity had succeeded, but only in part and now argued that once the judge had decided that the manner in which the DFT was being operated created an unacceptable risk of unfair determinations and was to that extent being operated unlawfully, the judge had no discretion to exercise but was bound to make the orders asked for and bring the whole DFT operation to a halt until it was operating lawfully.

Court: CA
Date: 16-Dec-2014
Judges: Beatson, Floyd, Fulford LJJ
Links: Bailii,
References: [2014] EWCA Civ 1634,
Cases Cited:

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Filed under Immigration

Al-Sabah (Sheikh Mohammed Nasser) -v- Immigration Appeal Tribunal; CA 1992

The applicant, a Kuwaiti citizen of previous good character had been ordered to be deported after serving a sentence for drugs and dishonesty. He sought review of the IAT’s refusal of his appeal, arguing that Rule 162 of the 1983 rules required the Home Secretary to apply the same rules to both EC and non-EC nationals, and that contrary to EC law, a deportation could not be based solely on a conviction.
Held: The appeal failed. The rules expressly allowed for different treatment of non-EC citizens. The decision could be made in the light of the severity of the offence itself. The cases involving deportation by criminal courts had no direct application. Taylor LJ said: ‘Those cases [sc. Nazari and later authorities of the CACD] were all concerned with the correct approach by a trial judge to recommending deportation. They did not purport to define or limit the scope of the Secretary of State’s discretion under s.(3)(5)(b) [now s.3(5)(a)] of the Act… In Hukam Saib, Stocker LJ said at page 378: ‘ . . it is to be noted that the case [of Nazari] was an appeal to the Criminal Division of this court, and related to guidelines which the court was laying down (so far as it was possible to lay down general guidelines) for the guidance of courts in making recommendations for deportation. It did not, and did not purport to lay down any guidelines for the exercise of his discretion by the Secretary of State’.’

Court: CA
Date: 01-Jan-1992
Judges: Taylor LJ
Statutes: Immigration Act 1971 3(5)(b) 19, Immigration Rules 1983 34 69 162
References: [1992] IAR 223, [1992] Imm AR 223
Cited By:

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Filed under European, Immigration

Virdi -v- The Law Society of England and Wales and Another; CA 16-Feb-2010

The claimant solicitor complained that in disciplinary proceedings brought against him by the respondent, the clerk to the tribunal had drafted the judgment, even though she had been an emloyee of the respondent.
Held: The description of the clerk’s functions at showed that he had an essentially administrative role which, as in the case of the Executive officers in the present case, included drafting formal documents for the tribunal to adopt as it saw fit and drawing the tribunal’s attention to similar past cases.
‘The ultimate question is whether the proceedings in question were and were seen to be fair. If on examination of all the relevant facts, there was no unfairness or any appearance of unfairness, there is no good reason for the imaginary observer to be used to reach a different conclusion.’

Court: CA
Date: 16-Feb-2010
Judges: Jacob, Llyd, Stanley Burnton LJJ
Statutes: European Convention on Human Rights 6, Solicitors Act 1974 46
Links: Bailii,
References: [2010] EWCA Civ 100, [2010] 1 WLR 2840, [2010] ACD 38, [2010] 3 All ER 653
Cases Cited:
Cited By:

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Filed under Human Rights, Legal Professions, Natural Justice

The Bodo Community and Others -v- CW Law Solicitors; TCC 9-Oct-2014

Application by the claimants for an interim injunction, earlier injunctions having been ordered by Stuart-Smith J, and an application to have them discharged, itself having been dismissed.

Court: TCC
Date: 09-Oct-2014
Judges: Akenhead J
Links: Bailii,
References: [2014] EWHC 3675 (TCC),

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Filed under Litigation Practice

Re R (A Child); CA 16-Dec-2014

The mother appealed agaiinst a decision that her child, already subject of a care order, should be released for adoption. She asserted that the judge had failed to conduct the welfare analysis in a manner which was compatible with the guidance

Court: CA
Date: 16-Dec-2014
Judges: Sir James Munby P, McFarlane, Floyd LJJ
Links: Bailii,
References: [2014] EWCA Civ 1625,

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Filed under Adoption

QRS -v- Beach and Another; QBD 11-Dec-2014

The defendant sought to have set aside an order made to cease to publish a website accusing the several claimant solicitors of assorted levels of misconduct. The defendants had been involved in opening a new website after the second defendant had lost several cases involving an earlier website. The claimants alleged that the sites amounted to harassment.

Court: QBD
Date: 11-Dec-2014
Judges: Warby J
Links: Bailii,
References: [2014] EWHC 4189 (QB),

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Filed under Defamation, Torts - Other

NRAM Plc -v- McAdam and Another; ComC 10-Dec-2014

The claimant, formerly Northern Rock pursued repayment of many loans based on part secured and part unsecured loans. The defendants said that the loans were unenforceable against them under the Consumer Credit legislation because the requisite information had not been provided.

Court: ComC
Date: 10-Dec-2014
Judges: Burton J
Statutes: Consumer Credit Act 1974 8(2), Consumer Credit (Agreements) Regulations 1983, Consumer Credit (Cancellation Notices and Copies of Documents) Regulations 1983, Consumer Credit (Disclosure of Information) Regulations 2004, Consumer Credit Act 2006, Consumer Credit (Information Requirements and Duration of Licences and Charges) Regulations 2007
Links: Bailii,
References: [2014] EWHC 4174 (Comm),

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Filed under Banking, Consumer

Jowhari -v- NHS England; QBD 11-Dec-2014

The claimant dentist claimed in negligence and/or breach of statutory duty, saying that the defendant had unlawfully removed the claimant’s name from its dental performers list causing financial loss.

Court: QBD
Date: 11-Dec-2014
Judges: Sir Colin Mackay
Links: Bailii,
References: [2014] EWHC 4197 (QB),

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Filed under Health Professions

Hull and Holderness Magistrates Court -v- Darroch and Another; Admn 15-Dec-2014

The applicants had successfully appealed against summary convictions under the 1988 Act for the dishonest receipt of broadcasts of Premier League football matches. They now sought a third party order for costs agaiinst the League despite their having had no direct part in the prosecution.

Court: Admn
Date: 15-Dec-2014
Judges: Foskett, Carr DBE JJ
Statutes: Copyright, Designs and Patents Act 1988
Links: Bailii,
References: [2014] EWHC 4184 (Admin),

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Filed under Costs, Intellectual Property

HBC Hamburg Bulk Carriers Gmbh & Co Kg -v- Huyton Inc; ComC 12-Dec-2014

Appeal from an award under the 1996 Act.

Court: ComC
Date: 12-Dec-2014
Judges: Teare J
Statutes: Arbitration Act 1996
Links: Bailii,
References: [2014] EWHC 4176 (Comm),

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Filed under Arbitration

Gardner -v- Northampton General Hospital NHS Trust; QBD 12-Dec-2014

The claimant PR asserted that the defendant had been negligent in its care of the patient leading to her death.

Court: QBD
Date: 12-Dec-2014
Judges: Sir David Eady
Links: Bailii,
References: [2014] EWHC 4217 (QB),

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Filed under Professional Negligence

Downing -v- Peterborough & Stamford Hospitals NHS Foundation Trust; QBD 12-Dec-2014

The claimant sought damages after what he said was a catastrophic treatment at the defendant hospital.

Court: QBD
Date: 12-Dec-2014
Judges: Sir David Eady
Links: Bailii,
References: [2014] EWHC 4216 (QB),

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Filed under Professional Negligence

Atlasnavios-Navegacao, LDA -v- Navigators Insurance Company Ltd and Others; ComC 8-Dec-2014

The claimant’s vessel and its crew had been detaiined after illegal drugs were found to be attached to its hull in port in Venezuala by ship crew members. The ship owners asserted effective total loss.

Court: ComC
Date: 08-Dec-2014
Judges: Flaux J
Links: Bailii,
References: [2014] EWHC 4133 (Comm),

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Filed under Crime, Insurance, Transport

Ivey -v- Genting Casinos UK Ltd (T/A Crockfords Club); QBD 8-Oct-2014

The claimant, a professional gambler, sued the defendantcasino for his winnings.

Court: QBD
Date: 08-Oct-2014
Judges: Mitting J
Links: Bailii,
References: [2014] EWHC 3394 (QB),

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Filed under Contract

Re a Complaint of Surveillance; IPT 14-Jan-2013

Court: IPT
Date: 14-Jan-2013
Links: Bailii,
References: [20113 UKIPTrib A1_2013,

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Filed under Human Rights, Police

Re A & B (Children); FD 20-Dec-2013

Application for care order in respect of two sisters.

Court: FD
Date: 20-Dec-2013
Judges: Cobb J
Links: Bailii,
References: [2013] EWHC 4150 (Fam),

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Filed under Children

NK -v- France; ECHR 19-Dec-2013

ECHR Article 3
Expulsion
Risk of ill-treatment in Pakistan owing to applicant’s conversion to Ahmadism: deportation would constitute a violation
Facts – The applicant, who was from a Sunni Muslim family in Pakistan, converted to the Ahmadiyya religion. In 2009 he arrived in France where his asylum application was rejected.
Law – Article 3: Concerning the general situation in Pakistan, the risk of inhuman or degrading treatment for members of the Ahmadi movement was well documented, both in the international reports consulted and in the country guidance of the UK Upper Tribunal. The authorities did not generally protect them and even frequently participated in their persecution, in particular on the basis of anti-blasphemy legislation. However, the Upper Tribunal’s guidance specifically emphasised the risks incurred by the Ahmadis who preached their religion in public and engaged in proselytising, unlike those who practised their faith in private and were not bothered by the authorities. In the light of the latter, for the Article 3 protection to be engaged, the fact of belonging to the Ahmadi movement did not suffice. The applicant had to show that he openly practised this religion and that he was a proselytiser, or was at least perceived as such by the Pakistani authorities.
The applicant had presented a detailed account, supported by numerous documents. However, that material had been dismissed by the authorities with brief reasoning. Moreover, the Government had not adduced any evidence that manifestly cast doubt on the authenticity of the documents produced. Accordingly, there was no reason to doubt the applicant’s credibility. He could not be expected to substantiate further the veracity of his account or the authenticity of the evidence that he had adduced. As to the question whether he ran a risk of sustaining ill-treatment in the event of his return to Pakistan, the applicant had produced documents showing that he was perceived by the Pakistani authorities not as a mere follower of the Ahmadi movement but as a proselytiser and he therefore had a marked profile capable of drawing hostile attention on the part of the authorities should he return. Consequently, as the Government had failed to call seriously into question the reality of the applicant’s fears and given his profile and the situation of Ahmadis in Pakistan, the applicant’s return to his country of origin would expose him to a risk of ill-treatment in breach of Article 3 of the Convention.
Conclusion: removal would constitute a violation (unanimously).
Article 41: no claim made in respect of damage.

Court: ECHR
Date: 19-Dec-2013
Statutes: European Convention on Human Rights 3
Links: Bailii,
References: 7974/11 - Legal Summary, [2013] ECHR 1321_LS

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Filed under Ecclesiastical, Human Rights, Immigration

NG -v- OG; FD 9-Dec-2014

The mother applied for the registration and enforcement of a custody order made in her favour by a court in Russia.

Court: FD
Date: 09-Dec-2014
Judges: Jakens HHJ
Links: Bailii,
References: [2014] EWHC 4182 (Fam),

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Filed under Childre, International

Liberty (The National Council of Civil Liberties) -v- The Government Communications Headquarters and Others; IPT 5-Dec-2014

The Claimants’ complaints allege the unlawfulness pursuant to Article 8 (and collaterally Article 10) of the European Convention of Human Rights (‘the Convention’) of certain assumed activities of the Security Service (also, and colloquially, known as MI5), the Secret Intelligence Service (and similarly also known as MI6) and the Government Communications Headquarters (‘GCHQ’)

Court: IPT
Date: 05-Dec-2014
Judges: Burton J P
Statutes: European Convention of Human Rights 8
Links: Bailii,
References: [2014] UKIPTrib 13_77-H,

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Filed under Human Rights, Police

LBX -v- K and Others; FD 15-Nov-2013

Ex tempore judgment as to the capacity of L in relation to decisions about where he should live, the care he receives and contact with his family.

Court: FD
Date: 15-Nov-2013
Judges: Theis J
Links: Bailii,
References: [2013] EWHC 4170 (Fam),

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Filed under Health

Khosprowpour (Ap) -v- McKay; SCS 16-Dec-2014

Court: SCS
Date: 16-Dec-2014
Judges: Lord Turnbull
Links: Bailii,
References: [2014] ScotCS CSOH_175,

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Filed under Contract, Land, Scotland

In re P (Children); CA 29-Jun-2011

Father’s appeal against making of residence order with mother.

Court: CA
Date: 29-Jun-2011
Judges: Patten, Black LJJ
Links: Bailii,
References: [2011] EWCA Civ 1016,

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Filed under Children

Cherwayko -v- Cherwayko; FD 10-Dec-2014

Application by W for alleged contempt of Court by H in failing to comply with court orders made as to the provision of financial statement on her application for financial provision on their divorce.

Court: FD
Date: 10-Dec-2014
Judges: Mostyn J
Links: Bailii,
References: [2014] EWHC 4252 (Fam),

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Filed under Contempt of Court, Family

CC (Adoption Application: Separated Applicants); FD 11-Oct-2013

Court: FD
Date: 11-Oct-2013
Judges: Moylan J
Links: Bailii,
References: [2013] EWHC 4815 (Fam),

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Filed under Adoption

Belhaj and Others -v- Security Service and Others; IPT 18-Nov-2014

Court: IPT
Date: 18-Nov-2014
Judges: Burton J P
Statutes: European Convention on Human Rights 8
Links: Bailii,
References: [2014] UKIPTrib 13_132-9H_2,

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Filed under Human Rights, Police

In re P (A Child); CA 27-Mar-2009

Renewed application for leave to appeal against refusal of direct contact for estranged father.

Court: CA
Date: 27-Mar-2009
Judges: Wilson LJ, Holman J
Links: Bailii,
References: [2009] EWCA Civ 512,

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Filed under Children

In re P (Children); Misc 25-Apr-2008

(Warrington County Court) Dispute over residence of children.

Court: Misc
Date: 25-Apr-2008
Judges: Case J
Links: Bailii,
References: [2008] EW Misc 6 (EWCC),

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Filed under Children

In re P (A Child), Re; CS & WS -v- A Local Authority; CA 8-May-2009

The applicants, grandparents, sought leave to appeal against a care order and placement for adoption. The child’s parents would be unable to provide care. The grandmother siffered tinnitus and reduced vision.
Held: No error of law had been shown, and leave was refused.

Court: CA
Date: 08-May-2009
Judges: Wall LJ
Statutes: Children Act 1989 31, Adoption and Children Act 2002 21
Links: Bailii,
References: [2009] EWCA Civ 376,

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Filed under Children

In re P (A Child); CA 22-Oct-2008

Mother’s appeal against refusal of permission to apply to revoke placement order.

Court: CA
Date: 22-Oct-2008
Links: Bailii,
References: [2008] EWCA Civ 1607,

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Filed under Adoption

Jardine and Others -v- Leathley; 1862

In an action on a marine poIicy for a constructive total loss arising from a leak. Held that it was for the jury whether the leak arose from the ship being unseaworthy before the voyage, either from any inlury arising before the insurance, or from ordinary wear and tear, or whether it arose from the perils of the seas in the course of the voyage insured, and whether the ship was abandoned in the exercise of an honest and reasonable discretion.

Date: 01-Jan-1862
Links: Commonlii,
References: [1862] EngR 83 (A), (1862) 3 F & F 80

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Filed under Transport

In re S (F G) (Mental Health Patient); 1973

The court considered the relationship between the jurisdiction of the Court of Protection to order and give directions for, or to authorise, legal proceedings in the name or on behalf of, a patient within the meaning of section 101 of the 1959 Act on the one hand and rules of court providing for the appointment of a next friend or guardian ad litem for a person under disability on the other.
Held: Persons under disability under the rules of court, may include some incapable of managing and administering their property and affairs who were not ‘patients’ for the purposes of the Mental Health Act. The rules of court did not contain or impose the requirement of judicial satisfaction after the consideration of medical evidence. There is no reason why the test of mental capacity, when applied to the power to pursue or defend legal proceedings, should necessarily lead to the same conclusion as it will when applied in order to determine whether the same person is or is not a patient within the Mental Health Act.

Date: 01-Jan-1973
Judges: Ungoed Thomas J
Statutes: Mental Health Act 1959 101
References: [1973] 1 WLR 178,
Cited By:

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Filed under Health, Litigation Practice

Mr & Mrs B -v- Department for Social Development; IPT 29-Jul-2011

In July 2010 the IPT made a finding in favour in this case of a husband and wife joint complaint against the Northern Ireland DSD. The DSD did not dispute that they mistakenly authorised surveillance to allow DSD officers to enter the complainants’ property posing as prospective house purchasers. This is the Tribunal’s decision on remedies. They ordered the quashing of the authorisation and for notes of the surveillance to be destroyed and then stated that the surveillance was a breach of the Complainants’ Article 8 rights.

Court: IPT
Date: 29-Jul-2011
Links: Bailii,
References: [2011] UKIPTrib 09_11,

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Filed under Human Rights, Northern Ireland, Police

W -v- Public Authority; IPT 1-Feb-2011

The ruling published deals with the issue of costs. In summary, the judgment rules in anonymized form on a case whereby a complainant received a no determination outcome. However, upon subsequent withdrawal of the complaint, the Tribunal was asked to consider the recovery of costs borne by the Respondent, a public authority.

Court: IPT
Date: 01-Feb-2011
Links: Bailii,
References: [2011] UKIPTrib 09_134,

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Filed under Costs, Human Rights

RAP -v- Serial No. 52/2006 and Oxfordshire County Council and others; In re P (A Child) (Adoption proceedings); CA 27-Jun-2007

When the court had an application by a parent for leave to defend adoption proceedings after the making of the placement order, the court had to make a two stage decision. First, the court had to identify whether there had been a sufficient change of circumstances, and then to consider what would be indicated by the welfare of the child.

Court: CA
Date: 27-Jun-2007
Judges: Thorpe LJ, Wall LJ, Hedley LJ
Statutes: Adoption and Children Act 200247
Links: Bailii,
References: [2007] EWCA Civ 616, Times, 28-Jun-2007

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Filed under Adoption

Hunter and Others -v- Leathley; 1830

A broker who has effected a policy, and has a lien on it for his premiums, may be compelled by the assured to produce it on the trial of an action against the underwriters, and he is a competent witness (notwithstanding his lien), to prove all matters connected with the policy. A policy was effected ‘at and from Singapore, Penang, Malacca, and Batavia, all or any, to the ship’s port of discharge in Europe, with leave to touch, stay, and trade at all or any ports or places whatsoever and wheresoever in the East Indies, Persia, or elsewhere, &e. upon goods in certain vessels, beginning the adventure from the loading thereof aboard the said ships as above.’ The ship took in part of her cargo at Batavia, then went to Sourabaya, another port in the East Indies, (not in the course of a voyage from Batavia to Europe, and not specified by name in the policy,) and took in other goods, then returned to Batavia, whence she afterwards sailed for Europe, and was lost by perils of the sea: Held, that going to S. was not a deviation, and that the goods there taken on board were protected by the policy.

Date: 01-Jan-1830
Links: Commonlii,
References: [1830] EngR 98, (1830) 10 B & C 858, (1830) 109 ER 667

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Filed under Insurance, Transport

Lindsay -v- Leathley; 1862

An iron steamer. while riding at anchor in an open roadstead, where she had been driven by distress, encountered some severe gales, in which she pitched and rolled a good deal, and some time afterwards, while still there waiting necessary repairs. A hole in her bottom was discovered which might have been repaired ; and there being also evidence that some of her rivets were wrenched and some of the iron plates on her bottom ‘ started ‘-injuries which might either have arlsen from straining in a storm, or from wear and tear and the assured having abandoned her and claimed as for a total loss, the underwriter paying into court a sum estimated only on a partial loss calculated on the cost of repair :–Held, 1. That the plaintiff could only recover for loss or injury proved to have been caused by perils of the seas. 2 That he could not recover as for a constructive total loss ; unless, under the circumstances, the captain was justified in abandonmg the ship 3. That this would depend, (1), upon whether the ship could and ought to be have been repaired where she was, or, (2), whether she could safely have been taken to some port where she might have been repaired 4. That the plaintiff could not recover for any injury caused by wear and tear, unless in consequence of the ship’s detention at the place in question by previous peril of the seas.

Date: 01-Jan-1862
Links: Commonlii,
References: [1862] EngR 104, (1862) 2 F & F 696, (1862) 175 ER 1245

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Filed under Transport

Perincek -v- Switzerland; ECHR 17-Dec-2013

ECHR Article 10-1
Freedom of expression
Criminal conviction for rejecting legal characterisation of atrocities committed by Ottoman Empire against the Armenian people from 1915 as ‘genocide': violation
Facts – The applicant is a doctor of laws and the Chairman of the Turkish Workers’ Party. In 2005 he participated in various conferences in Switzerland during which he publicly denied that the Ottoman Empire had perpetrated the crime of genocide against the Armenian people in 1915 and the following years. In particular, he described the idea of an Armenian genocide as an ‘international lie’. The association Switzerland-Armenia filed a complaint against the applicant for the comments he had made. The applicant was sentenced, with a two-year suspension, to ninety day-fines of 100 Swiss francs (CHF), and fined CHF 3,000, for which thirty days’ imprisonment could be substituted, and was ordered to pay CHF 1,000 in damages to the complainant association.
Law
Article 17: The Court accepted that some of the applicant’s comments were provocative. The applicant’s motives for committing the offence had been described as ‘nationalistic’ and ‘racist’ by the domestic courts. In speaking of the events in question, the applicant had referred in his conferences to the notion of ‘international lie’. However, ideas which offended, shocked or disturbed were also protected by Article 10. It was noteworthy that the applicant had never questioned the existence of the massacres and deportations perpetrated during the years in question and that his denial concerned only the legal characterisation of those events as ‘genocide’. The Court took the view that the rejection of the legal characterisation as ‘genocide’ of the 1915 events was not per se such as to incite hatred against the Armenian people. In any event, the applicant had never been prosecuted or convicted for seeking to justify genocide or for inciting hatred, which was a separate offence. Nor had he expressed contempt for the victims of the events in question. Therefore the Court did not need to apply Article 17 of the Convention.
Conclusion: Article 17 not applicable (unanimously).
Article 10: The impugned conviction unquestionably constituted an ‘interference’ with the applicant’s exercise of his right to freedom of expression. As to whether that interference was prescribed by law, the applicant’s conviction had been based on an accessible statutory provision. It might be questioned whether the term ‘genocide’, as used in the Swiss Criminal Code, was consonant with the precision required by Article 10 – 2 of the Convention. However, as the applicant was a doctor of laws and a well-informed political figure, and as the Swiss National Council had recognised the existence of the Armenian genocide in 2002, the criminal sanction was foreseeable for the applicant. As regards the legitimate aim, the impugned measure had sought to protect the rights of others, namely the honour of the relatives of victims of the atrocities perpetrated by the Ottoman Empire against the Armenian people from 1915 onwards.
Lastly, as to whether the impugned measure had been necessary in a democratic society, it was important to clarify at the outset that the Court was not called upon to address either the veracity of the massacres and deportations perpetrated against the Armenian people by the Ottoman Empire from 1915 onwards or the appropriateness of legally characterising those acts as ‘genocide’, within the meaning of the Swiss Criminal Code. Its task was only to examine, under Article 10 of the Convention, the decisions given by the competent domestic courts in the exercise of their discretionary power.
(a) Nature of the applicant’s speech and the domestic courts’ margin of appreciation – It was not in dispute that the issue whether the events of 1915 and thereafter should be characterised as ‘genocide’ was one of major interest for the public. The essence of the applicant’s statements and positions could be situated within a historical context. In addition, the applicant had also expressed his views as a politician on a question which affected relations between two States, Turkey and Armenia, a country whose people had been the victims of massacres and deportations. Concerning as it did the characterisation of a crime, that question also had a legal connotation. Accordingly, the applicant’s speech was historical, legal and political in nature. Having regard to the foregoing, and in particular the public interest of the applicant’s speech, the domestic authorities’ margin of appreciation was reduced.
(b) Method adopted by domestic courts to convict the applicant – As to the notion of ‘consensus’, only about twenty States (out of over 190 in the world) had officially recognised the Armenian genocide. Moreover ‘genocide’ was a well-defined legal notion. In any event, it was even doubtful that there could be a general consensus as to events such as those in issue, given that historical research was by definition open to discussion and a matter of debate, without necessarily giving rise to final conclusions or to the assertion of objective and absolute truths. In that connection the present case could be clearly distinguished from cases concerning the negation of the crimes of the Holocaust. The method used by the domestic courts to secure the conviction was thus questionable.
(c) Whether there was a pressing social need – A study by the Swiss Comparative Law Institute adduced by the Swiss Government revealed that among the sixteen companies analysed, only two made it a criminal offence to negate genocide, without limiting its scope to Nazi crimes. None of the other States had apparently seen a ‘pressing social need’ for such legislation. Switzerland had failed to show how there was a stronger social need than in other countries to punish an individual for racial discrimination on the basis of statements challenging the legal characterisation as ‘genocide’ of acts perpetrated on the territory of the former Ottoman Empire in 1915 and the following years. Two developments since the publication of that study also had to be taken into account. Firstly, the Spanish Constitutional Court had found unconstitutional the offence of ‘negation’ of genocide. Secondly, the French Constitutional Council had declared unconstitutional a law which made it a criminal offence to deny the existence of the genocides recognised by the law. Even though those decisions did not strictly constitute binding precedent, the Court could not ignore them. It pointed out that France had expressly recognised the Armenian genocide in a law of 2001. It thus observed that the decision of the French Constitutional Council showed that there was in principle no contradiction between the official recognition of certain events as genocide and the conclusion that it would be unconstitutional to impose criminal sanctions on persons who questioned the official view. Other States which had recognised the Armenian genocide had not found it necessary to enact laws introducing criminal sanctions, being mindful that one of the main aims of freedom of expression was to protect minority points of view capable of fostering debate on questions of general interest that were not firmly established. Lastly, it was noteworthy that the present case represented the first conviction of an individual on that legal basis in the context of the Armenian question. Moreover, the applicant, together with eleven other Turkish nationals, had been acquitted by the District Court on charges of genocide denial, as no intent to discriminate had been found. In view of the foregoing, the Court doubted that the applicant’s conviction had been required by a ‘pressing social need’.
(d) Proportionality of measure to aim pursued – Even though the sanctions imposed on the applicant, including one that could be converted into a term of imprisonment, were not particularly harsh, they were nevertheless capable of having chilling effects.
In view of the foregoing and particularly in the light of the comparative law material, the Court took the view that the grounds given by the domestic authorities to justify the applicant’s conviction were not all pertinent and that, taken as a whole, they proved insufficient. The domestic authorities had not shown, in particular, that the applicant’s conviction met a ‘pressing social need’ or that it was necessary in a democratic society for the protection of the honour and feelings of the descendants of the victims of the atrocities which dated back to 1915 and the following years. The domestic authorities had thus overstepped the margin of appreciation afforded to them in the present case, which had arisen in the context of a debate of undeniable public interest.
Conclusion: violation (five votes to two).

Court: ECHR
Date: 17-Dec-2013
Statutes: European Convention on Human Rights 10-1
Links: Bailii,
References: 27510/08 - Legal Summary, [2013] ECHR 1366

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Filed under Human Rights

Leathley -v- Webster; 1790

A by-law which is uncertain, or contrary to a statute, is void. In an action for money had and received to the plaintiff’s use, it was found by a special verdict; that the Company of Cutlers in Hallamshire in the county of York, which were incorporated by the 21 Ja. 1, c. 31, have a power given by that statute of making such by-laws as are not contrary to the law of the land ; that in the year 1718, the company made a by-law, whereby it is ordered, that the clerk of the company shall receive fifteen shillings for every pair of indentures of apprenticeship which shall be inrolled by him, arid that it shall be referred to the master and wardens of the company, to ascertain how much of the fifteen shillings shall be deducted for the benefit of the company ; and that the clerk of the company had insisted upon and received fifteen shillings from the plaintiff for the enrolling of a pair of indentures, by which the plaintiff’s son was bound an apprentice to a member of the company. The question was, if this by-law be good? It was holden, that it is not.

Date: 01-Jan-1790
Judges: Ryder CJ
Links: Commonlii,
References: [1790] EngR 1079, (1790) Say 251, (1790) 96 ER 870 (C)

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Filed under Employment

Henry Kismoun -v- France; ECHR 5-Dec-2013

ECHR Article 8
Positive obligations
Article 8-1
Respect for family life
Respect for private life
Refusal to permit change of name requested with a view to unifying family surname: violation
Facts – The applicant was listed in the civil status register under his mother’s surname, Henry. He has dual nationality, Algerian through his father and French through his mother; both of his parents are now deceased. He was abandoned by his mother at the age of three, together with his brother and sister. The father took them in, and in 1961 moved them to Algeria. The applicant was always called Kismoun by his father, family and friends. It was under this surname that he was educated in Algeria from 1963 to 1970 and that he carried out his military service there from 1975 to 1977. It is also under this name that he is currently listed in the Algerian civil status register. In 1977 the applicant attempted to re-establish contact with his mother through the French Consulate in Algiers, which informed him that she did not wish to make contact. He also learned on that occasion that he was registered in France as Christian Henry, and not Cherif Kismoun, as in Algeria. The applicant sought to rectify that situation, but his appeals were unsuccessful, including one to the Minister of Justice, who dismissed his request by a decision of December 2003.
Law – Article 8
(a) Applicability – The issue of the choice or change of the surnames and forenames of natural persons fell within the scope of this provision, given that the surname and forename concerned the individual’s private and family life.
(b) Merits – The Minister of Justice’s decision amounted to a refusal to change a surname which was perfectly consistent with the applicant’s identification under French law, and to replace it with a very different surname. It followed that this case concerned the issue of the State’s positive obligations.
The Minister of Justice had partly based his decision in respect of the applicant’s request to change the surname ‘Henry’ on a lack of evidence concerning the mother’s absence of interest. However, no examination had been conducted into the applicant’s specific reasons for wishing to use the surname ‘Kismoun’. The applicant had merely been informed that his possible use of that surname, which, he submitted, reflected his origins, was insufficient to denote the requisite legal interest. The national courts had subsequently never explained how the applicant’s request, which contained personal and individual reasons capable of being taken into consideration in examining the merits of an affective argument, conflicted with a public order necessity.
The reasoning put forward by the Minister of Justice in relation to the surname Henry did not constitute an adequate response to the applicant’s request, in that it attached no weight to the fact that he was seeking to be known under a single surname. In reality, the applicant was asking the national authorities to recognise the identity he had developed in Algeria, of which the surname Kismoun was one of the key elements. He wished to be registered under only one surname, namely that which he had used since childhood, in order to put an end to the inconvenience caused by his registration under two different identities in the French and Algerian civil status registers. The surname, as the principle means of identifying an individual within society, was part of the core considerations relevant to the right to respect for private and family life. The Court also emphasised, as the Court of Justice of the European Union had done, the importance for an individual of having a single surname. However, it was to be noted that it appeared from the reasoning in the decisions by which the national authorities had rejected the applicant’s request that they had not taken into account the identity-related aspect of his request, and, in so doing, had failed to balance the public interest at stake against the applicant’s overriding interest. In those circumstances, the decision-making process concerning the change in surname had not afforded the protection of the applicant’s interests safeguarded by Article 8 of the Convention.
Conclusion: violation (unanimous).
Article 46: The national authorities had not given appropriate weight to the applicant’s interest in having a single name. The Court consider that it was not required to indicate to the respondent State the measures to be taken, given that various methods could be envisaged to remedy the violation of Article 8 of the Convention.
Article 41: EUR 4,000 in respect of non-pecuniary damage.

Court: ECHR
Date: 05-Dec-2013
Statutes: European Convention on Human Rights 8
Links: Bailii,
References: 32265/10 - Legal Summary, [2013] ECHR 1367

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Filed under HumFamilyan Rights

Leathley and Others, Regina (on The Application of) -v- Visitors To The Inns of Court and Another; Admn 16-Oct-2013

These claimants are barristers who seek permission to challenge, by way of judicial review, findings in relation to professional misconduct, and: ‘The most significant issues relate to the constitutions of the Disciplinary Tribunals convened to hear the charges against them, and of the Visitors of the Inns of Court who heard their appeals. The claimants submit that some of the members of the Disciplinary Tribunals, and of the Visitors, were not qualified to sit because the limited duration of their eligibility to sit had expired. Accordingly they were not tried by a tribunal established by law; within the meaning of Art. 6 of the European Convention on Human Rights the Tribunal had no power to try them and the Visitors no power to uphold the findings.’
Held: The claims failed. i) When the President appointed persons to sit on Disciplinary Tribunals pursuant to regulation 2 of the 2009 Regulations, he or she was not obliged to appoint people who were current members of the COIC pool.
ii) When the Lord Chief Justice appointed persons to sit as Visitors hearing appeals from Disciplinary Tribunals pursuant to rule 12 (1) of the 2010 Rules he or she was not obliged to appoint people who were current members of the COIC pool.
iii) Alternatively, the time-expired Tribunal members or Visitors had authority under the de facto judge doctrine.
iv) The mismatch between the various regulatory documents did not reflect well on those who organised the barristers’ disciplinary scheme.
v) Miss Hayes had an arguable case based on delay. Therefore she should have permission to pursue that ground. Nevertheless, after hearing full argument, the court rejected that claim.
vi) All other grounds of challenge advanced were unarguable. Therefore the court refused permission on those grounds.

Court: Admn
Date: 16-Oct-2013
Judges: Moses LJ, Kenneth Parker J
Links: Bailii,
References: [2013] EWHC 3097 (Admin),
Cited By:

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Filed under Human Rights, Legal Professions

Ibrahim And Others -v- The United Kingdom; ECHR 16-Dec-2014

The applicants alleged a violation of Article 6-1 and 3 (c) in that they had been interviewed by the police without access to a lawyer and that the evidence obtained from those interviews was used at their respective trials.
Held: As to the first three claimants: ‘the applicants, not the prosecution, brought the safety interview statements into play at trial by deploying a defence that was later described by the Court of Appeal as ‘ludicrous’ (see paragraph 89 above). Their defence had all the hallmarks of being tailored to fit the rest of the prosecution case against them. It would not have struck the correct balance between the applicants’ Article 6 right and the general interest in their prosecution if, when faced with that hoax defence, the prosecution had been unable to rely on statements from the applicants that not only undermined that defence but flatly contradicted it.’
As to the fourth: ‘taken cumulatively, the fourth applicant’s adoption of his statement after having received legal advice, the counterbalancing safeguards contained in the legislative framework and available at trial with a view to ensuring the fairness of the proceedings, including the trial judge’s ruling on admissibility, and the strength of the other prosecution evidence against the fourth applicant mean that no undue prejudice can be held to have been caused to his Article 6 – 1 right to a fair trial as a result of the failure to caution him and provide him with access to a lawyer during his initial police interview, followed by the admission of his statement at trial.’

Court: ECHR
Date: 16-Dec-2014
Judges: Ineta Ziemele, P
Statutes: European Convention on Human Rights 6-1
Links: Bailii,
References: 40351/09 - Chamber Judgment, [2014] ECHR 1392, 50541/08, 50571/08, 50573/08

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Filed under Criminal Evidence, Human Rights

Virdi -v- The Law Society; Admn 18-Feb-2009

The court dismissed the appeal of Mr Virdi from the findings and order of the Solicitors Disciplinary Tribunal finding him guilty of serious professional misconduct and suspending him from practice for a period of 3 years. The solicitor complained of the extent of the involvement of the clerk to the tribunal, an employee of the defendant, was involved in the conduct of proceedings, in particular in drafting the committee’s decision.
Held: The Tribunal had power to permit the clerk to retire with them when they considered their decision and to assist them by drafting part of the formal findings by virtue of rule 31(a)
Scott Baker LJ discussed the suggestion that the proceedings infringed his Article 6 rights, and found that 1. The SDT is entirely independent of the Law Society. The historical and financial connections are well documented as are the steps that have been taken to keep the two bodies separate.
2. The independence of the Tribunal is well established on the authorities.
3. The attack in the present case is not directly on the Tribunal but on the clerk, it being alleged that because she was employed by the Law Society that this in some way tainted the Tribunal’s decision because the Law Society was the prosecutor and neither party should have any connection with the Tribunal. Examination of the clerk’s position however shows that her employment by the Law Society (as with all Tribunal clerks) is not employment in the ordinary sense of the word but very much technical employment for remuneration purposes.
4. The clerk was not the decision maker, either by virtue of her position or on the particular facts of this case. Even taking the broadest view of what the independent and informed observer might think, I can see no basis for concluding that the Tribunal’s decision could be considered to be biased against the appellant.
5. Nothing the clerk did was improper. She was not in any way a party to the decision. She followed the ordinary administrative procedures adopted in other cases. She was entitled to assist in drafting the findings document which, in the event, was not in any way inconsistent with the extempore reasons give by the Chair on 26th October 2007.

Court: Admn
Date: 18-Feb-2009
Judges: Scott Baker LJ and David Clarke J
Statutes: Solicitors (Disciplinary Proceedings) Rules 1994 31(a), European Convention on Human Rights 6
Links: Bailii,
References: [2009] EWHC 918 (Admin),
Cited By:

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Filed under Human Rights, Legal Professions, Natural Justce

W, Regina (on The Application of) -v- Southampton Youth Court; Admn 23-Jul-2002

W was a youth accused with another of robbery. The District judge magistrate had sent him for trial at the Crown Court although finding ‘[W] is 14 years of age with no previous conviction and is not a persistent offender.’
Held: Woolf LJ approved a statement: ‘in respect of offenders under 15 a custodial sentence will ordinarily only be available in the form of a detention and training order. If the court is prohibited from making such an order in general an order under section 91 will not be appropriate.’ To send a defendant in a Youth Court for trial at the Crown Court: ‘ justices should start off with a strong presumption against sending young offenders to the Crown Court unless they are satisfied that that is clearly required, notwithstanding the fact that the forum for trial will not be so appropriate as the Youth Court. ‘ and ‘ justices should start off with a strong presumption against sending young offenders to the Crown Court unless they are satisfied that that is clearly required, notwithstanding the fact that the forum for trial will not be so appropriate as the Youth Court.’

Court: Admn
Date: 23-Jul-2002
Judges: The Lord Woolf of Barnes LCJ, Kay LJ
Statutes: Powers of Criminal Courts (Sentencing) Act 2000 91 100, Magistrates' Courts Act 1980 24(1)
Links: Bailii,
References: [2002] EWHC 1640 (Admin), [2003] 1 Cr App R (S) 87, (2002) 166 JP 569, [2002] Crim LR 750

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Filed under Criminal Practice, Magistrates

Dunster Properties Ltd -v- The First Secretary of State and Another; CA 28-Feb-2007

An Inspector ought to give reasons for departing from the decision of a previous Inspector

Court: CA
Date: 28-Feb-2007
Links: Bailii,
References: [2007] EWCA Civ 236,
Cited By:

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Filed under Planning

Cutean -v- Romania; ECHR 2-Dec-2014

Court: ECHR
Date: 02-Dec-2014
Statutes: European Convention on Human Rights
Links: Bailii,
References: 53150/12 - Chamber Judgment, [2014] ECHR 1347

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Filed under Human Rights

Transgrain Shipping Bv -v- Deiulemar Shipping Spa and Another; ComC 15-Dec-2014

Court: ComC
Date: 15-Dec-2014
Judges: Teare J
Links: Bailii,
References: [2014] EWHC 4202 (Comm),

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Filed under Arbitration

Kicks and Another -v- Leigh; ChD 25-Nov-2014

The parties disputed the grant of probate and as to the payment of the proceeds of sale of a property by the deceased before her death, which the defendants asserted had been gifted to them.

Court: ChD
Date: 25-Nov-2014
Judges: Stephen Morris QC
Links: Bailii,
References: [2014] EWHC 3926 (Ch),

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Filed under Wills and Probate

Evans, Regina (on The Application of) -v- The First Secretary of State and Another; Admn 24-Jan-2005

Challenge to a decision by a planning inspector on the claimant’s appeal against the refusal of the Wigan Metropolitan Borough Council to grant him planning permission to use his land as a private gypsy caravan site with associated structures.

Court: Admn
Date: 24-Jan-2005
Judges: Newman J
Links: Bailii,
References: [2005] EWHC 149 (Admin),

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Filed under Planning

Perpetuity; Poole -v- Poole; 1607

The Court doth not allow of perpetuities, nor of statutes to warrant them.

Date: 01-Jan-1607
Links: Commonlii,
References: [1607] EngR 2, (1607) Toth 146, (1607) 21 ER 150 (A)

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Filed under Land

Ted Baker Plc and Another -v- Axa Insurance UK Plc and Others; ComC 11-Dec-2014

Court: ComC
Date: 11-Dec-2014
Judges: Eder J
Links: Bailii,
References: [2014] EWHC 4178 (Comm),

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Filed under Costs

MH Services Ltd -v- Secretary of State for The Environment, Transport and The; Admn 14-Feb-2002

Application under Section 288 of the Town & Country Planning Act 1990 to quash the decision of an inspector whereby he upheld the refusal of planning permission to the applicants to erect a dwelling on land in Allendale in an area of outstanding natural beauty. The inspector treated the application as one for a new dwelling and decided against the applicants on the basis that the policies in the relevant plan precluded the erection of new dwellings in the particular area concerned.

Court: Admn
Date: 14-Feb-2002
Judges: Collins J
Links: Bailii,
References: [2002] EWHC 283 (Admin), [2002] 9 EG 219

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Filed under Planning

Jong -v- HSBC Private Bank (Monaco) and Another; ChD 28-Nov-2014

The defenda nt sought to have set aside permission given for the service of the claim against it out of the jurisdiction.

Court: ChD
Date: 28-Nov-2014
Judges: Purles QC HHJ
Links: Bailii,
References: [2014] EWHC 4165 (Ch),

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Filed under Jurisdiction

Destine Estates Ltd and Another -v- Muir and Another; ChD 11-Dec-2014

The claimants sought to recover the sum of £225,000 which, they allege, was lent to the defendants when the first defendant bought a property.

Court: ChD
Date: 11-Dec-2014
Judges: Newey J
Links: Bailii,
References: [2014] EWHC 4191 (Ch),

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Filed under Contract

Bathija -v- Lloyds TSB Bank Plc; ChD 5-Dec-2014

The claimant sought damages after the defendant, his bank, had refused payment on a transfer causing the collapse of his business. He said, and the bank denied that the bank anager had agreed to make the payment.

Court: ChD
Date: 05-Dec-2014
Judges: Behrens HHJ
Links: Bailii,
References: [2014] EWHC 4092 (Ch),

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Filed under Banking

Dr. McAllister -v- The General Medical Council; PC 14-Dec-1992

(The General Medical Council)

Court: PC
Date: 14-Dec-1992
Links: Bailii,
References: [1992] UKPC 40,

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Filed under Health Professions

Sirdar -v- Ministry of Defence; EAT 15-Sep-1995

The claimant had brought a sex discrimination claim, saying that she had bee refused opportunity to work as a chef with the Royal Marines. She and the defendants had had sought an adjournment of the claim, but this had been refused.
Held: Appeal allowed.

Court: EAT
Date: 15-Sep-1995
Judges: Hicks QC HHJ
Statutes: Sex Discrimination Act 1975
Links: Bailii,
References: [1995] UKEAT 978_95_1509,
Cited By:

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Filed under Armed Forces, Discrimination, Employment

Dooner -v- Odlum; 1914

(Kings Bench Division – Ireland) Dodd J said: ‘The rent, according to the authorities I have cited, is divisible. There is absolutely no evidence and no presumption upon which to found an inference that she holds an undivided share in the lands jointly or as tenant in common, in the ordinary sense of the term, with others. In one sense, of course, it may be contended that a number of tenants, each holding a divided portion and each contributing to the entire rent, are tenants in common . . But the authorities recognize a divided share, and the inference here is overwhelming that it is a divided share that the defendant holds.’

Date: 01-Jan-1914
Judges: Dodd J
References: [1914] 2 Ir R 411,
Cited By:

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Filed under Landlord and Tenant

Seton House Group Ltd and Another -v- Mercer Ltd; ChD 12-Dec-2014

The claimants appealed against an order granting summary judgment dismissing the claim on limitation grounds.

Court: ChD
Date: 12-Dec-2014
Judges: David Cooke HHJ
Links: Bailii,
References: [2014] EWHC 4234 (Ch),

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Filed under Limitation

Scottish Insurance Commissioners -v- Church of Scotland; CS 1914

Assistants to ministers, (not associate ministers), of the Church of Scotland are not employed by the Church under contracts of employment. The ‘control’ test was to be used in identifying a contract of employment. An assistant to a minister was not subject to the control and direction of any particular master. An assistant holds an ecclesiastical office and performs his duties subject to the laws of the church. In any event there was difficulty in identifying exactly who was the assistant’s employer. Lord Johnstone said that employment must be under a contract of service. A contract of service assumes an employer and a servant. It assumes the power of appointment and dismissal in the employer, the right of control over the servant in the employer, and the duty of service to the employer in the servant. There was no one who occupied that position. The contract in which the assistant was engaged was more a contract for services than a contract of service.
Lord Kinnear: ‘I think that the position of an assistant minister in these Churches is not that of a person who undertakes work defined by contract but of a person who holds an ecclesiastical office, and who performs the duties of that office subject to the laws of the Church to which he belongs and not subject to the control and direction of any particular master.’ He contrasted this position with that of lay missionaries: ‘The probationers who are appointed to the position of assistant ministers are students of divinity who have obtained a licence to preach from the presbytery . . Now, we are told in this case what the terms of the licence are. The licence bears that the presbytery licences the person named to preach the Gospel of Christ and to exercise his gifts as a probationer for the holy ministry. When a person so licensed is appointed to be assistant to a minister, I think that his authority to perform the duties that belong to that office does not arise from any contract between himself and the minister, or himself and the kirk-session or anybody else, but arises from the licence given to him by the presbytery to exercise his gifts. He is, therefore, in my opinion a person who is no sense performing duties fixed and defined by a contract of service.’
Lord Mackenzie: An assistant minister was:- ‘really the case of one who is discharging the duties of an office, and whatever authority is exercised over him is in virtue of an ecclesiastical jurisdiction, and is not in virtue of rights which arise out of a contract of service.’

Court: CS
Date: 01-Jan-1914
Judges: Lord Kinnear, Lord Johnstone, Lord Mackenzie
References: 1914 SC 16,
Cited By:

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Filed under Ecclesiastical, Employment, Scotland

Regina -v- Immigration Appeal Tribunal Ex Parte Secretary of State for the Home Department; CA 15-Jul-1993

A change in the applicant’s circumstances should lead to a new application, not to an appeal.

Court: CA
Date: 15-Jul-1993
Links: Times,
References:

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Filed under Immigration

Regina -v- Hopper; CCA 1914

Lord Reading CJ said: ‘We do not assent to the suggestion that as the defence throughout the trial was accident, the judge was justified in not putting the question as to manslaughter. Whatever the line of defence adopted by counsel at the trial of a prisoner, we are of opinion that it is for the judge to put such questions as appear to him properly to arise upon the evidence even although counsel may not have raised some question himself. In this case it may be that the difficulty of presenting the alternative defences of accident and manslaughter may have actuated counsel in saying very little about manslaughter, but if we come to the conclusion, as we do, that there was some evidence – we say no more than that – upon which a question ought to have been left to the jury as to the crime being manslaughter only, we think that this verdict of murder cannot stand.’

Court: CCA
Date: 01-Jan-1914
Judges: Lord Reading CJ
References: [1915] 2 KB 431,
Cited By:

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Filed under Criminal Practice