Tag: Commonwealth

Attorney General for Hong Kong v Reid and Others: PC 24 Nov 1993

Principalhas proprietary interest in Trust assets

Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:

Judges:

Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum

Citations:

Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Wrongly decided – Lister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .

Cited by:

Cited – Tesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Cited – Islamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts, Commonwealth

Updated: 09 December 2022; Ref: scu.77944

Darryl Neudorf v Network Expressions: 1999

(Supreme Court of British Columbia) The court discussed the test for joint authorship after reviewing authorities in Canada, the US and England and said: ‘In the result I find that the test for joint authorship that should be applied to the facts in the instant case is as follows:
i) Did the plaintiff contribute significant original expression to the songs? If yes,
ii) Did each of the plaintiff and Ms McLachlan intend that their contributions be merged into a unitary whole? If yes,
iii) Did each of the plaintiff and Ms McLachlan intend the other to be a joint author of the song?’ and ‘the creation of the intent to co-author requirement in Childress v. Taylor happened despite the statutory definition of joint authorship . . . not because of it. The court looked beyond the language of the section and moved on to review policy considerations in the application of the section. In particular, the court could not accept that Congress intended to extend joint authorship to, for example, editors and researchers. It was for this reason that the court created the intent to co-author requirement.’

Judges:

Cohen J

Citations:

[1999] RPC 935

Jurisdiction:

Canada

Cited by:

Still Good Law – Hodgens v Beckingham CA 19-Feb-2003
The defendant appealed a finding of infringement in a music copyright work, ‘Young at Heart’, based on a claim of joint authorship. The claimant had delayed his claim for many years, but now sought only rights to future royalties.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 09 December 2022; Ref: scu.266723

Kenneth L Kellar Carib West Limited v Stanley A Williams: PC 24 Jun 2004

(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as the degree of success in the case, and the respondent argued that this showed the existence of a conditional fee element.
Held: The letter relied upon did not establish what was suggested, and nor could the fact that the remuneration rate had not been formally agreed in advance. It was not unlawful as a conditional fee arrangement. The case was remitted for taxation to proceed.
The Privy Council expressed the view that ‘it may now be time to reconsider the accepted prohibition in the light of modern practising conditions.’

Judges:

Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote, Lord Carswell, Dame Sian Elias

Citations:

[2004] UKPC 30, [2005] 4 Costs LR 559, (2004) 148 SJLB 821

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Citing:

Cited – Way v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
Cited – Thai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
Cited – Hazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
See also – Kellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Cited – Geraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .

Cited by:

See Also – Kellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Cited – Sibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
Cited – Patel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
Cited – Radford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 01 December 2022; Ref: scu.198381

Kellar v Williams: PC 7 Feb 2000

PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Held: The appeal was dismissed: ‘If the shareholders of a company agree to increase its capital without a formal allocation of shares that capital will become like share premium part of the owner’s equity and there is nothing in the company law of the Turks and Caicos Islands or in the company law of England on which that law is based to render their agreement ineffective. ‘

Judges:

Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Goff of Chieveley, Lord Hutton, Lord Millett

Citations:

[2000] 2 BCLC 390, [2000] UKPC 4, Appeal No 42 of 1998, [2000] 2 BCLC 390

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

See Also – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .

Cited by:

See also – Kenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
Applied – Oyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 December 2022; Ref: scu.174641

Attorney General of the Commonwealth of Australia v Adelaide Steamship Company: PC 1913

There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine of restraint of trade: ‘Monopolies and contracts in restraint of trade have this in common, that they both, if enforced, involve a derogation from the common law right in virtue of which any member of the community may exercise any trade or business he pleases and in such manner as he thinks best in his own interests.’
and ‘Contracts in restraint of trade were subject to somewhat different considerations. There is little doubt that the common law in the earlier stages of its growth treated all such contracts as contracts of imperfect obligation, if not void for all purposes; they were said to be against public policy in the sense that it was deemed impolitic to enforce them.’
and ‘It is only necessary to add that no contract was ever an offence at common law merely because it was in restraint of trade. The parties to such a contract, even if unenforceable, were always at liberty to act on it in the manner agreed. Similarly combinations, not amounting to contracts, in restraint of trade were never unlawful at common law. To make any such contract or combination unlawful it must amount to a criminal conspiracy, and the essence of a criminal conspiracy is a contract or combination to do something unlawful, or something lawful by unlawful means. The right of the individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others.’

Judges:

Lord Parker

Citations:

[1913] AC 781

Jurisdiction:

Australia

Citing:

Cited – Mogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .

Cited by:

Cited – Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
Cited – Norris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Commercial

Leading Case

Updated: 27 November 2022; Ref: scu.259685

Berry v The Queen: PC 15 Jul 1992

(Jamaica) A failure to comply with Jamaica’s own rules on disclosure was a material irregularity. Where credibility is in issue, a good character direction is always relevant.

Citations:

Gazette 15-Jul-1992, [1992] 2 AC 364

Jurisdiction:

Commonwealth

Cited by:

Cited – Marvin Murphy v The Queen PC 22-Nov-2001
(The Bahamas) The appellant had been convicted of burglary and robbery. The conviction depended upon identification by one witness who had given several differing descriptions. The trial was long delayed, and the appellant who was not represented . .
Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 05 October 2022; Ref: scu.78367