Tag Archives: Torts – Other

Stein -v- Blake and others; CA 13-Oct-1997

The defendants challenged leave to appeal given to the plaintiff against dismissal of his claim following the Prudential Assurance case.
Held: The issue was whether the plaintiff can recover the loss which he has allegedly sustained by reason of the misappropriation of the business and assets of companies in which he was a shareholder. Leave to appeal was set aside, though such applications would normally be discouraged. There may be special circumstances in which a fiduciary duty is owed by a director to a shareholder personally and in which breach of such a duty has caused loss to him directly (e.g. by being induced by a director to part with his shares in the company at an undervalue), as distinct from loss sustained by him by a diminution in the value of his shares (e.g. by reason of the misappropriation by a director of the company’s assets), for which he (as distinct from the company) would not have a cause of action against the director personally.
Millett LJ said: ‘If this action were allowed to proceed and the plaintiff were to recover for the lost value of his shareholding from the first defendant, this would reduce his ability to meet any judgment which might thereafter be obtained by the liquidators, or by any of the old companies which were not in liquidation, to the prejudice of their creditors. The plaintiff would have obtained by a judgment of the court the very same extraction of value from the old companies at the expense of their creditors that the first defendant is alleged to have obtained by fraud and deceit.’

Court: CA
Date: 13-Oct-1997
Judges: Lord Woolf MR, Millett LJ, Mummery LJ
Links: Bailii, Bailii,
References: [1997] EWCA Civ 2474, [1998] 1 All ER 724, [1997] EWCA Civ 4002, [1998] 1 BCLC 573, [1998] BCC 316
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Filed under Company, Insolvency, Litigation Practice, Torts - Other

Lyons -v- Chief Constable of West Yorkshire; CA 24-Apr-1997

The Chief Constable appealed against an award of damages for wrongful arrest and false imprisonment. A witness to a robbery had identified the complainant as responsible, but the claimant’s mother had told the officers that her son would have an alibi. After arrest the alibi was confirmed. The claimant was released, but then made his claim, saying that the officers had no reasonable ground for their suspicion.

Court: CA
Date: 24-Apr-1997
Judges: Evans, Hobhouse, Hutchison LJJ
Links: Bailii,
References: [1997] EWCA Civ 1520,

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Filed under Police, Torts - Other

McNamara -v- North Tyneside Metropolitan Borough Council; CA 21-Feb-1997

The claimant sought damages for personal injuries. The case he presented at trial differed from that pleaded, and he now appealed dismissal of his claim.
Held: The variation was sufficiently serious to justify the refusal of relief. In fact the claim should be under Occupier’s Liability where the common law duty of care had been superceded. The claim would have failed if properly presented.

Court: CA
Date: 21-Feb-1997
Links: Bailii,
References: [1997] EWCA Civ 1072,
Cases Cited:

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Filed under Personal Injury, Torts - Other

Khodaparast -v- Mohammed Reza Farrokh-Shad; CA 26-Feb-1997

The claimant an Iranian woman teacher at an Iranian religious school in London claimed damages for malicious falsehood from her former lover. He created documents using her photographs superimposed on pornographic pictures from a magazine and inserting words which suggested that the claimant was advertising sexual services. These were sent to the daughter of a newspaper editor. The newspaper did not publish but the documents were circulated widely in the Iranian community in London. The judge awarded £20,000 as general damages for malicious falsehood but said that, had the claim been brought in defamation, he would have awarded £50,000.
Held: This was an ‘eminently reasonable’ figure.

Court: CA
Date: 26-Feb-1997
Links: Bailii,
References: [1997] EWCA Civ 1090, [2000] EMLR 265
Cited By:
  • Kiam -v- MGN Ltd, CA, Cited, (Gazette 15-Mar-02, Bailii, [2002] EWCA Civ 43, [2002] 1 WLR 2810, [2003] QB 281)

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Filed under Damages, Torts - Other

Bayley -v- South Wight Borough Council; CA 27-Feb-1997

Application for leave to appeal out of time. The defendant had disposed of a caravan belonging to the claimant which had been removed by others from land and abandoned on the highway verge. He claimed for the value of his contents in the caravan. The defendant said that by the time they found it the caravan was empty.
Held: The registrar had carefully taken evidence from many witnesses. There was no evidence to suggest that he had erred.

Court: CA
Date: 27-Feb-1997
Links: Bailii,
References: [1997] EWCA Civ 1113,

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Filed under Local Government, Torts - Other

Wilson -v- Chief Constable of Lancashire Constabulary; CA 5-Nov-1996

‘Paragraph (2) of Article 5 contains the elementary safeguard that any person arrested should know why he is being deprived of his liberty. This protection is an integral part of the scheme of protection afforded by Article 5: by virtue of paragraph (2) any person arrested must be told in simple, non-technical language that he can understand, the essential legal and factual grounds for his arrest, so as to be able, if he sees fit, to apply to a court to challenge its lawfulness in accordance with paragraph (4). Whilst this information must be conveyed ‘promptly’ (in French: ‘dans le plus court delai’), it need not be related in its entirety by the arresting officer at the very moment of the arrest. Whether the content and promptness of the information conveyed were sufficient is to be assessed in each case according to its special features.’

Court: CA
Date: 05-Nov-1996
Judges: Schiemann, Thorpe, Mance LJJ
Statutes: European Convention on Human Rights
References: (2000) 1 Po LR 367, [1996] EWCA Civ 883
Cases Cited:

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Filed under Human Rights, Police, Torts - Other

First National Commercial Bank Plc -v- Loxleys (a Firm); CA 6-Nov-1996

The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to Enquiries before Contract were to be examined carefully to see if they constituted an unfair term. The claim was not unarguable, and should proceed. Whether the solicitor owed a duty of care could not be decided without assessing the validity of the disclaimer. ‘neither the duty of care issue nor the disclaimer issue is suitable to be determined under Order 14A.’

Court: CA
Date: 06-Nov-1996
Judges: Lord Justice Nourse, Lord Justice Waller, Sir John May
Statutes: Unfair Contract Terms Act 1977
Links: Gazette, Times, Bailii,
References: [1996] EWCA Civ 886,
Cases Cited:

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Filed under Legal Professions, Torts - Other

Regina -v- Carroll and Al-Hasan and Secretary of State for Home Department; Admn 16-Feb-2001

The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden anally.
Held: The common thread in all the cases has been the search to find whether an objective need for the intrusion or interference with prisoners has been made out. ‘the questions and issues in relation to security and the management of prisons as presented by the Secretary of State cannot be regarded as irrational or incapable of providing substantial objective justification for squat searches without a prisoner being informed of the substance of the reason for the search.’ It is appropriate to accord to the Secretary of State a measure of deference in balancing circumstances and in determining what is required.

Court: Admn
Date: 16-Feb-2001
Judges: Newman J
Links: Bailii,
References: [2001] EWHC Admin 110,
Cases Cited:
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Filed under Prisons, Torts - Other

L -v- Bournewood Community and Mental Health NHS Trust; Admn 9-Oct-1997

L was adult autistic. He had been admitted to mental hospital for fear of his self-harming behaviours, and detained informally. He complained that that detention was unlawful.
Held: The continued detention of a mental health patient who is incapable of giving consent is unlawful in the absence of the hospital following the statutory procedures.

Court: Admn
Date: 09-Oct-1997
Judges: Owen J
Statutes: Mental Health Act 1983 131(1)
Links: Gazette, Times, Bailii,
References: [1997] EWHC Admin 850, [1998] 2 WLR 764
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Filed under Health, Torts - Other

Thomas -v- News Group Newspapers Ltd and Simon Hughes; CA 18-Jul-2001

A civilian police worker had reported officers for racist remarks. The newspaper repeatedly printed articles and encouraged correspondence which was racially motivated, to the acute distress of the complainant.
Held: Repeated newspaper stories which were known to create distress, could amount to harassment under the Act. The freedom of the press could be set aside where it was used in contravention of the Convention’s underlying values.
Lord Phillips of Worth Matravers MR said of harassment under the Act that ‘The Act does not attempt to define the type of conduct that is capable of constituting harassment. ‘Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable.’
Lord Phillips of Worth Matravers MR: ‘The Act does not attempt to define the type of conduct that is capable of constituting harassment. ‘Harassment’ is, however, a word which has a meaning which is generally understood. It describes conduct targeted at an individual which is calculated to produce the consequences described in section 7 and which is oppressive and unreasonable. The practice of stalking is a prime example of such conduct.’
May LJ: ‘Thus, in my view, although section 7(2) provides that harassing a person includes causing the person distress, the fact that a person suffers distress is not by itself enough to show that the cause of the distress was harassment. The conduct has also to be calculated, in an objective sense, to cause distress and has to be oppressive and unreasonable. It has to be conduct which the perpetrator knows or ought to know amounts to harassment, and conduct which a reasonable person would think amounted to harassment. What amounts to harassment is, as Lord Phillips said, generally understood. Such general understanding would not lead to a conclusion that all forms of conduct, however reasonable, would amount to harassment simply because they cause distress.’

Court: CA
Date: 18-Jul-2001
Judges: Phillips of Worth Matravers MR, Jonathan Parker LJ, Mustill LJ, May LJ
Statutes: Protection from Harassment Act 1997 7
Links: Times, Bailii,
References: [2001] EWCA Civ 1233, [2002] EMLR 78
Cited By:

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Filed under Human Rights, Media, Torts - Other

Ratcliff -v- G R McConnell and E W Jones; CA 30-Nov-1998

A trespasser having climbed into grounds at night and dived into a swimming pool without knowing the depth accepted responsibility for his own acts. The dangers of diving into shallow water were known to adults and there was no need for a warning. The existence of a duty had to be determined by reference to the likelihood of the trespasser’s presence in the vicinity of the danger at the actual time and place of danger to him.

Court: CA
Date: 30-Nov-1998
Judges: Stuart-Smith LJ
Statutes: Occupiers' Liability Act 1984 1(3)
Links: Times,
References: [1999] 1 WLR 670,
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Filed under Land, Torts - Other

Harmon CFEM Facades (UK) Limited -v- The Corporate Officer of The House of Commons; TCC 28-Oct-1999

The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering.

Court: TCC
Date: 28-Oct-1999
Statutes: Public Works Contracts Regulations 1991
Links: Bailii,
References: [1999] EWHC Technology 199, 1996 ORB No 1151, (1999) 67 Con LR 1
Cases Cited:
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Filed under Construction, European, Torts - Other

Floods of Queensferry Ltd, David Charles Flood -v- Shand Constructions Ltd, Morrison Shand Constructions Ltd, Morrison Construction Ltd; TCC 17-Dec-1999

The claimant alleged that it had entered into a sub-contract relying upon misrepresentations made by the defendant, SCL that it was the main contractor, and that it was still trading. The defendant company operated through associated companies for which it was an agent, but itself was treated as dormant, even though it still put its name to invitations to tender. The claimants had undertaken credit checks before the contract the results of which were adverse.
Held: To be actionable a representation needed to be as to an existing or past fact. The filed accounts were no promise as to the future activity of the company. The claimant could have stopped work at any time, and had not continued after being misled. The company would not have acted differently if the actual position had been made clear. Claim dismissed.

Court: TCC
Date: 17-Dec-1999
Judges: His Honour Judge Humphrey Lloyd QC
Statutes: Misrepresentation Act 1967 2(2)
Links: Bailii,
References: 1994 ORB 826, [1999] EWHC Technology 183
Cases Cited:
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Filed under Agency, Company, Construction, Torts - Other

In Re L (By His Next Friend GE); Regina -v- Bournewood Community and Mental Health NHS Trust, Ex Parte L; HL 25-Jun-1998

The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have been formally detained.
Held: The appeal succeeded. His detention had not been so complete as to constitute the tort of false imprisonment. The appellant had been properly detained using the informal procedure. The medical steps taken were valid under the common law doctrine of necessity. Under the common law doctrine of necessity there was power to detain and restrain patients who lack capacity and where detention was necessary in their own best interests.
Lord Steyn identified the existence of a lacuna: ‘The common law principle of necessity is a useful concept but it contains none of the safeguards of the 1983 Act. It places effective and unqualified control in the hands of the hospital psychiatrists . . neither habeas corpus nor judicial review are sufficient safeguards against misjudgements and professional lapses in the case of compliant incapacitated patients.’

Court: HL
Date: 25-Jun-1998
Judges: Lord Goff of Chieveley, Lord Lloyd of Berwick, Lord Nolan, Lord Steyn, Lord hope of Craighead
Statutes: Mental Health Act 1983 3
Links: Gazette, Times, House of Lords, Bailii,
References: [1998] UKHL 24, [1998] Fam Law 592, [1999] AC 458, [1998] 3 All ER 289, [1998] 3 WLR 107, [1998] 2 FLR 550, [1998] 2 FCR 501
Cases Cited:
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Filed under Health, Health Professions, Torts - Other

OHara -v- Chief Constable of the Royal Ulster Constabulary; HL 21-Nov-1996

The plaintiff had been arrested on the basis of the 1984 Act. The officer had no particular knowledge of the plaintiff’s involvement, relying on a briefing which led to the arrest.
Held: A reasonable suspicion upon which an arrest was founded need not be based on the arresting officer’s own observations. All that is required is a genuine and reasonably based suspicion in the mind of the officer. The test as to whether there are reasonable grounds for suspicion to justify an arrest is partly subjective, in that the arresting officer must have formed a genuine suspicion that the person being arrested was guilty of an offence, and partly objective, in that there must be reasonable grounds for forming such a suspicion. Such grounds can arise from information received from another, even if it subsequently proves to be false, provided that a reasonable man, having regard to all the circumstances, would regard them as reasonable grounds for suspicion.
Lord Hope considered what was the level of suspicion necessary to found a valid arrest under the section, saying: “My Lords, the test which s 12(1) of the 1984 Act has laid down is a simple but practical one. It relates entirely to what is in the mind of the arresting officer when the power is exercised. In part it is a subjective test, because he must have formed a genuine suspicion in his own mind that the person has been concerned in acts of terrorism. In part also it is an objective one, because there must also be reasonable grounds for the suspicion which he has formed. But the application of the objective test does not require the court to look beyond what was in the mind of the arresting officer. It is the grounds which were in his mind at the time which must be found to be reasonable grounds for the suspicion which he has formed. All that the objective test requires is that these grounds be examined objectively and that they be judged at the time when the power was exercised.”
Lord Steyn said: “Certain general propositions about the powers of constables under a section such as section 12(1) can now be summarised. (1) In order to have a reasonable suspicion the constable need not have evidence amounting to a prima facie case. Ex hypothesi one is considering a preliminary stage of the investigation and information from an informer or a tip-off from a member of the public may be enough: Hussien v. Chong Fook Kam [1970] A.C. 942, 949. (2) Hearsay information may therefore afford a constable a reasonable ground to arrest. Such information may come from other officers: Hussien’s case, ibid. (3) The information which causes the constable to be suspicious of the individual must be in existence to the knowledge of the police officer at the time he makes the arrest. (4) The executive ‘discretion’ to arrest or not as Lord Diplock described it in Mohammed-Holgate v. Duke [1984] A.C. 437, 446, vests in the constable, who is engaged on the decision to arrest or not, and not in his superior officers.” and
“For obvious practical reasons police officers must be able to rely upon each other in taking decisions as to whom to arrest or where to search and in what circumstances. The statutory power does not require that the constable who exercises the power must be in possession of all the information which has led to a decision, perhaps taken by others, that the time has come for it to be exercised. What it does require is that the constable who exercises the power must first have equipped himself with sufficient information so that he has reasonable cause to suspect before the power is exercised.”

Court: HL
Date: 21-Nov-1996
Judges: Lord Hope of Craighead
Statutes: Prevention of Terrorism (Temporary Provisions) Act 1984 12(1)
Links: Gazette, Times, House of Lords, Bailii,
References: [1996] UKHL 6, [1997] AC 286, [1997] 1 All ER 129, [1997] 2 WLR 1, [1996] NI 8, [1997] Crim LR 432, [1997] 1 Cr App Rep 447
Cases Cited:
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Filed under Criminal Practice, Police, Torts - Other

Yukong Lines Ltd -v- Rendsburg Investments Corporation and Others (No 2); QBD 23-Sep-1997

Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce corporate veil – whether actionable conspiracy. A company creditor is owed no direct duty by a director putting his assets beyond the jurisdiction anticipating the company’s insolvency. In an unlawful means conspiracy, the unlawful act relied on must be actionable at the suit of the plaintiff: ‘As to an unlawful means conspiracy, Mr. Yamvrias undoubtedly owed a fiduciary duty to Rendsburg. Although he was not formally a director, he was a ‘shadow director’ and controlled the company’s activities.’ and ‘… since Mr Yamvrias had effective control over Rendsburg, he would presumably have been in a position on behalf of the company to get back from himself that which he had caused to be paid for his benefit. It might in an appropriate case be within the scope of the Court’s Mareva jurisdiction to require a company, and its only effective officer, to do just that; but that has not been the subject of argument.’

Court: QBD
Date: 23-Sep-1997
Judges: Justice Toulson
Links: Times,
References: [1998] 1 Lloyd's Rep 322, [1998] 1 WLR 294, [1998] 4 All ER 82, [1998] 2 BCLC 485, [1998] BCC 870
Cases Cited:
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Filed under Company, Torts - Other

Webb -v- Chief Constable of Merseyside Police; CA 26-Nov-1999

The Police had confiscated money suspected to be the proceeds of drug trafficking, but no offence was proved. The magistrates had refused to return the money under the 1897 Act. The claimants now sought to reciver it under civil proceedings.
Held: The judge was wrong to have found public policy grounds for refusing to order what he had found to be such proceeds. There was no statutory power to hold the money and it must be returned: ‘There is no statutory power to confiscate the proceeds of drug dealing within the United Kingdom where the person entitled to possession of the money is not convicted of a drug trafficking offence. I recognise that there may be circumstances where for a variety of reasons a prosecution may not take place. But that does not, in my view, justify expropriation by means of a defence to a civil claim for return of money which has been seized from persons who are not convicted.’
The position was essentially the same whether proceedings were taken against the police directly or whether proceedings were taken pursuant to 1897 Act. In each of the cases, the police initially lawfully seized the money, but the statutory power to retain it was exhausted. ‘the court should not, in my view, countenance expropriation by a public authority of money or property belonging to an individual for which there is no statutory authority’ and ‘if goods are in the possession of a person, on the face of it he has the right to that possession. His right to possession may be suspended or temporarily divested if the goods are seized by the police under lawful authority. If the police right to retain the goods comes to an end, the right to possession of the person from whom they are seized revives. In the absence of any evidence that anybody else is the true owner, once the police right of retention comes to an end, the person from whom they were compulsorily taken is entitled to possession.’

Court: CA
Date: 26-Nov-1999
Judges: May, Pill, Hale, LJJ
Statutes: Police (Property) Act 1897 1(1)
Links: Gazette, Bailii,
References: [2000] QB 427, [1999] EWCA Civ 3041, [2000] 2 WLR 546, [2000] 1 All ER 209
Cases Cited:
  • Tinsley -v- Milligan, HL, Applied, (Independent 06-Jul-93, Times 28-Jun-93, [1994] 1 AC 340, Bailii, [1993] UKHL 3, [1993] 3 WLR 126, [1993] 3 All ER 65)

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Filed under Police, Torts - Other

Western Digital Corporation and others -v- British Airways plc; QBD 23-Jul-1999

A claim under the Convention could be brought by the consignor or the consignee, in either case as named on the waybill or by the person to whom delivery was ordered by the consignor. The owner of the goods had no standing to make a claim save to the extent that he was so named.

Court: QBD
Date: 23-Jul-1999
Statutes: Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929
Links: Times,
References:

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Filed under Torts - Other, Transport

W -v- Essex County Council and Another; HL 17-Mar-2000

A foster child was placed with a family. The child had a history of abusing other children, but the foster parents, who had other children were not told. The foster child caused psychiatric damage to the carers.
Held: It was wrong to strike out the claim. It was actionable. The psychiatric damage pleaded was not necessarily too remote. That would be a matter for the judge at trial. ‘Whether the nature of the council’s task is such that the court should not recognise an actionable duty of care, in other words that the claim is not justiciable, and whether there is a breach of the duty depend, in the first place, on an investigation of the full facts known to, and the factors influencing the decision of, the defendants.’

Court: HL
Date: 17-Mar-2000
Judges: Lord Slynn of Hadley
Links: Gazette, Times, HL, Bailii,
References: [2000] UKHL 17, [2000] 2 All ER 237, [2000] 2 WLR 601, [2001] 2 AC 592, [2000] 1 FLR 657, [2000] 1 FCR 568, (2000) 53 BMLR 1, [2000] BLGR 281
Cases Cited:
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Filed under Local Government, Negligence, Torts - Other

W -v- Home Office; CA 19-Feb-1997

W had been held in immigration detention because of a crass administrative mistake about his ability to establish his country of origin.
Held: An immigration officer who was using his statutory powers is not liable for negligent or false imprisonment: ‘The process whereby the decision making body gathers information and comes to its decision cannot be the subject of an action in negligence. It suffices to rely on the absence of the required proximity. In gathering information, and taking it into account the Defendants are acting pursuant to their statutory powers and within that area of their discretion where only deliberate abuse would provide a private remedy. For them to owe a duty of care to immigrants would be inconsistent with the proper performance of their responsibilities as immigration officers. In conducting their inquiries, and making decisions in relation to immigrants, including whether they should be detained pending those inquiries, they are acting in that capacity of public servant to which the considerations outlined above apply.’

Court: CA
Date: 19-Feb-1997
Judges: Lord Woolf MR, Thorpe, Waller LJJ
Links: Times, Bailii,
References: [1997] EWCA Civ 1052,
Cited By:

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Filed under Negligence, Torts - Other