Month: July 2015

Lacey v Revenue and Customs; Excs 27 Oct 2005

References: [2005] UKVAT-Excise E00923
Links: Bailii
Excs EXCISE DUTY – restoration of excise goods and motor vehicle – strong circumstantial case to support a finding of commercial importation – Appellant stated his job was in jeopardy because he could not get to work on time without his vehicle – Appellant failed to explain the position regarding the other vehicle registered in his name – no exceptional hardship – the offer of restoration of the vehicle on payment of a fee was proportionate – review decision reasonable – appeal dismissed

Peconic Industrial Development Ltd v Lau Kwok FAI; 27 Feb 2009

References: [2009] HKCFA 16, [2009] 5 HKC 135, [2009] 2 HKLRD 537, (2009) 12 HKCFAR 139
Links: HKLii
Coram: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Lord Hoffmann NPJ
Hong Kong Court of Final Appeal. The limitation period for a claim in dishonest assistance is 6 years. For limitation purposes a distinction is to be made between two kinds of constructive trustees: those who are fiduciaries and those who are non-fiduciaries. The distinction between the two classes was made clear in the judgment of Lord Hoffmann: ‘First, there are persons who, without any express trust, have assumed fiduciary obligations in relation to the trust property; for example as purchaser on behalf of another, trustee de son tort, company director or agent holding the property for a trustee. I shall call them fiduciaries. They are treated in the same way as express trustees and no limitation period applies to their fraudulent breaches of trust. Then there are strangers to the trust who have not assumed any prior fiduciary liability but make themselves liable by dishonest acts of interference. I shall call them non-fiduciaries. They are also called constructive trustees but this, as Ungoed-Thomas J said in Selangor United Rubber Estates Ltd v Cradock (No 3) [1968] 1 WLR 1555, p1582 is a fiction: ‘nothing more than a formula for equitable relief’. They are not constructive trustees within the meaning of the law of limitation.’
This case cites:

  • Cited – Soar -v- Ashwell CA ([1893] 2 QB 390)
    Trustees under a will had entrusted the trust fund to a solicitor for investment. The solicitor exercised all of their administrative and investment powers for them and distributed part of the fund invested to the beneficiaries under the will but . .

This case is cited by:

  • Highly Persuasive – Williams -v- Central Bank of Nigeria QBD (Bailii, [2011] EWHC 876 (QB))
    The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
  • Cited – Williams -v- Central Bank of Nigeria SC (Bailii, [2014] UKSC 10, 16 ITELR 740, [2014] WLR(D) 88, [2014] 2 All ER 489, [2014] 2 WLR 355, [2014] WTLR 873, WLRD, Bailii Summary, UKSC 2012/0113, SC Summary, SC)
    The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .

Tipping v The St Helen’s Smelting Company (Limited); 26 Nov 1864

References: [1864] EngR 808 (A), (1864) 4 B & S 616
Links: Commonlii
This case cites:

This case is cited by:

  • See Also – St Helen’s Smelting Co -v- Tipping HL ([1865] 11 HL Cas 642, Bailii, [1865] UKHL J81, 11 ER 1483)
    The defendant built a factory, from which the escaping chemical fumes damaged local trees.
    Held: The defendant was liable even though the smelting was an ordinary business carried on properly, and even though the district surrounding was . .

Tipping v The St Helens Smelting Company (Limited); 26 Nov 1864

References: [1864] EngR 809 (B), (1864) 4 B & S 616
Links: Commonlii
This case cites:

This case is cited by:

  • See Also – St Helen’s Smelting Co -v- Tipping HL ([1865] 11 HL Cas 642, Bailii, [1865] UKHL J81, 11 ER 1483)
    The defendant built a factory, from which the escaping chemical fumes damaged local trees.
    Held: The defendant was liable even though the smelting was an ordinary business carried on properly, and even though the district surrounding was . .

M v M; FDNi 20 Dec 2001

References: Unreported, 20 December 2001
Coram: McLaughlin J
The court considered the approach to the evaluation of contributions in ancillary relief proceedings in a divorce where there were substantial assets. McLaughlin J said: ‘In the course of adducing evidence before me counsel sought to tempt me with a bait of this kind. He led evidence, and relied upon it in his closing submissions, that the husband worked very long hours getting out of bed at 6.00am to be at work by 7.00am. His work did not finish until late in the evening as he carried on his working day by supervising Y limited and the other business premises owned by the company. I accept all of that evidence as true, but to concentrate on that and fail to recognise that, whilst he toiled at work on company business, Mrs M from early in the morning was getting the children ready for school, taking them there, running the home during the day, collecting them after school, cooking and cleaning, nurturing them by ferrying them to social, sporting and recreational activities, supervising homework and tutoring them when required, would be to be guilty of the very kind of discrimination warned against by Lord Nicholls. An example of the value of the life’s work of Mrs M can be seen today in the accomplishments and personalities of their children. These are the abiding rewards of her labour of love rather than the transient rewards in the form of money produced by the labour of the husband. In the context of this family’s life these admirable qualities of both parties are to be considered of equal value. Indeed the words of Lord Nicholls might almost have been written to describe the respective roles of Mr and Mrs M.’
This case cites:

This case is cited by:

  • Cited – Shan Elizabeth Rose Lambert -v- Harry Paul Lambert CA (Times 27-Nov-02, Bailii, [2002] EWCA Civ 1685, [2003] 1 FLR 139, [2003] Fam 103, [2003] 2 WLR 631, [2003] 4 All ER 342, [2002] 3 FCR 673, [2003] Fam Law 16, Independent 21-Nov-02)
    The parties appealed an order for the division of the family’s 20 million pound fortune on divorce. The husband argued that his special contribution to the creation of the wealth meant that he should receive a greater share.
    Held: The Act gave . .

The NHS Trust v L and Others; COP 2012

References: [2012] EWHC 2741 (COP), [2013] COPLR 139
Coram: Eleanor King J
The patient suffered extreme anorexia. A declaration was sought as to the possibility of discontinuing compulsory medical treatment. The medical opinion was that the course of action proposed had a ‘close to’ 100% likelihood of causing Ms L’s death; survival would in the view of the experts lead to serious adverse physical and psychological consequences for Ms L. No patient with such a low BMI was reported to have survived such an enforced re-feeding regime whilst in intensive care.
This case is cited by:

Euro-Link Consultants And European Profiles -V- Commission: ECFI 2 Oct 2014

References: T-199/12, [2014] EUECJ T-199/12, ECLI:EU:T:2014:848
Links: Bailii
ECFI (Judgment) Public service contracts – Tender procedure – Crimean tourism diversification and support project – Rejection of the applicants’ tender – Action for annulment – Measure not amenable to review – Confirmatory measure – Partial inadmissibility – Obligation to state reasons – Award criteria – Manifest error of assessment – Misuse of powers – Equal treatment

Drewell v Towler; 4 Jun 1832

References: , [1832] EngR 642, (1832) 3 B & Ad 735, (1832) 110 ER 268
Links: Commonlii
In trespass for cutting lines of the plaintiff and throwing down linen thereon hanging ; defendant pleaded, that he was possessed of a close, and because the linen was wrongfully in and upon the close he removed it. Replication, that J. G. being seised in fee of the close and of a messuage with the appurtenances contiguous to it, by lease and release conveyed to W. H., the messuage and all the easements, liberties, privileges, &c. to the said messuage belonging, or therewith then or late used, &c. ; that before and at the time of such conveyance, the tenants and occupiers of the messuage used the easement, &c. of fastening ropes to the said messuage, and across the close, to a wall in the said close, in order to hang linen thereon, and of hanging linen thereon to dry, as often as they had occasion so to do, at their free will and pleasure, and that the plaintiff being tenant to W, H. of the said messuage, did put up the lines, &c. Rejoinder took issue on the right as alleged in the replication : Held, that proof of a privilege for the tenants to hang lines across the yard, for the purpose of drying the linen of their own families only, did not support the alleged right.
This case is cited by:

  • Cited – Bradley and Another -v- Heslin and Another ChD (Bailii, [2014] EWHC 3267 (Ch))
    The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .

Suffield v Brown; 15 Jan 1864

References: [1864] EngR 129, (1864) 4 De G J & S 185, (1864) 46 ER 888
Links: Commonlii
Coram: Lord Chancellor Lord Westbury
To imply a grant or reservation of an easement as arising upon the disposition of one of two adjoining tenements by the owner of both, where the easement had no legal existence anterior to the unity of possession and is not one of necessity, is a theory in part not required by, and in other part inconsistent with, the principles of English law that regulate the effect and operation of grants of real property.
If the grantor intends to reserve any right over the property granted, it is his duty to reserve it expressly in the grant ; and the operation of a plain grant not pretended to be otherwise than in conformity with the contract between the parties ought not to be limited and cut down hy the fiction of an implied reservation.
The grantor cannot derogate from his own absolute grant so as to claim rights over the thing granted, even if they were at the time of the grant continuous and apparent casements enjoyed by an adjoining tenement which remains the property of the grantor.
The comparison of the disposition of the owner of two tenements to the destination du pere de famille of the French code civil is a fanciful analogy from which rules of law ought not to be derived.
Where the owner of two tenements sells and conveys one for an absolute estate therein, he puts an end by contract to any relation which he had himself created between the tenement sold and the adjoining tenement, and discharges the tenement so sold from any burthen imposed upon it during his joint occupation ; and the condition of such tenement is thenceforth determined by the contract of alienation and not by the previous user of the vendor during such joint ownership.
The right to overhang a bowsprit is capable of being an easement.
This case is cited by:

  • Cited – Bradley and Another -v- Heslin and Another ChD (Bailii, [2014] EWHC 3267 (Ch))
    The parties were neighbours. One had a right of way over the other’s land. A gate existed over it. B wished to close the gate for security, but H wished it open in order to be able to drive through it without having to get out of his car, and so he . .

D’Orta-Ekenaike v Victoria Legal Aid; 10 Mar 2005

References: [2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755
Links: Austlii
(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

Cooke v Oxley; 14 May 1790

References: [1790] EngR 2367, (1790) 3 TR 653, (1790) 100 ER 785 (B)
Links: Commonlii
A. having proposed to sell goods to B., gave him a, certain time at his request to determine whether he would buy them or not; B. within the time determined to buy them, and gave notice thereof to A. ; yet A. was not liable in an action for not delivering them, for B. not being bound by the original contract, there was no consideration to bind A.
This case is cited by:

  • Explained – Byrne -v- van Tienhoven & Co ((1880) 5 CPD 344 (CP))
    The defendant offered by a letter to the plaintiffs to sell them goods at a certain price. They later wrote to the plaintiffs to withdraw the offer. Before they knew of the revocation, the plaintiffs accepted the offer by telegram. The defendants . .

Dimes v The Proprietors Of The Grand Junction Canal and Others; 29 Jun 1852

References: [1852] EngR 793, (1852) 3 HLC 794, (1852) 10 ER 315
Links: Commonlii
Coram: Lord Brougham, Lord Campbell
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his decision could not stand. The court now considered again the plaintiff’s appeal from the order of the Vice-Chancellor.
Held: The appeal failed and the order was confirmed. There was indeed a difficulty in the Act under which the land had been conveyed, but the Vice-Chancellor had found the correct interpretation of it.
This case cites:

  • Second Appeal from – Dimes -v- The Company of Proprietors of The Grand Junction Canal CExC ([1846] EngR 55, Commonlii, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, Commonlii, (1846) 15 Sim 402, (1846) 60 ER 675)
    By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .
  • See Also – The Grand Junction Canal Company -v- Dimes ([1849] EngR 576, Commonlii, (1849) 12 Beav 63, (1849) 50 ER 984)
    In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in . .
  • See Also – The Grand Junction Canal Company -v- Dimes CA ([1850] EngR 242, Commonlii, (1850) 2 Mac & G 285, (1850) 42 ER 110)
    The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
  • See Also – Dimes -v- Lord Cottenham ([1850] EngR 499 (A), Commonlii, (1850) 5 Exch 311)
    The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
  • See Also – In Re Dimes ([1850] EngR 769, Commonlii, (1850) 3 Mac & G 4, (1850) 42 ER 162)
    The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
    Held: Such an endorsement did not mean that the . .
  • Principal Judgment – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .

John Trevor, Esq, Deceased v Matthew Blucke, Esq, Deceased, And Others And Between William Starismore v Richard Chiswell And Others; 12 Nov 1855

References: [1855] EngR 777, (1854-1855) 6 De G M & G 170, (1855) 43 ER 1196
Links: Commonlii
On the death of an usher of the Court in 1702, a large sum, for which as usher he was accountable was due from him : in a suit instituted for the administration of his estate, more than sufficient was realized to liquidate the amount, and all sums actually claimed were paid : in 1719 the Court ordered a fund sufficient to answer the unclaimed sums to be invested, and directed the interest to be paid to the representative of the deceased usher until further order : similar orders for payment of the interest were from time to time down to 1833 made on the application of the existing representative of the usher; and in 1854, a petition was presented for the same purpose by the then representative. On a full discussion of the case, and on the petition being amended, an order was made for the transfer to him of the principal fund.
Whether there can be an appeal to the House of Lords upon a matter relating to the Suitors’ Fund, Quaere, by the Lord Chancellor.

Bluck v Gompertz; 7 Jun 1852

References: [1852] EngR 689, (1853) 7 Exch 862, (1852) 155 ER 1199
Links: Commonlii
Coram: Pollock, Baron Parke
The defendant had signed an undertaking to procure the acceptance of two bills for £200 and £146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for £150. The plaintiff drew bills for £200 and £500 and the defendant saw that they were accepted. The defendant wrote across the guarantee ‘I have received the two drafts, one being for £150, instead of £146, the other being an error in the invoice of £4’). The plaintiff signed this but the defendant did not. The guarantee as endorsed was treated as a valid memorandum of the contract since the endorsement had been made for the purpose of correcting the mistake and, being written by the defendant on the same piece of paper as he had originally signed, his original signature was plainly intended to authenticate the memorandum as amended, and could therefore be considered as doing so, notwithstanding that the words written on the paper by the defendant were written as the words of the plaintiff. Pollock CB said that the court had come to its conclusion not without some difficulty. Baron Parke said he had had great difficulty in bringing his mind to this conclusion.
This case cites:

  • See Also – Bluck -v- Gompertz ([1851] EngR 878, Commonlii, (1851) 7 Exch 67, (1851) 155 ER 859)
    The court has power, independently of statute to compel the plaintiff to produce for the defendant’s inspection a document upon which the action is brought, where the defendant is a party to te document and has no copy of it. . .

This case is cited by:

  • Cited – Golden Ocean Group Ltd -v- Salgaocar Mining Industries Pvt Ltd and Another ComC (Bailii, [2011] EWHC 56 (Comm), [2011] 2 All ER (Comm) 95, [2011] 1 CLC 125, [2011] CILL 3022, [2011] 1 WLR 2575)
    The defendants sought to set aside orders allowing the claimants to serve proceedings alleging repudiation of a charterparty in turn allowing a claim against the defendants under a guarantee. The defendant said the guarantee was unenforceable under . .

Bluck v Gompertz; 15 Nov 1851

References: [1851] EngR 878, (1851) 7 Exch 67, (1851) 155 ER 859
Links: Commonlii
The court has power, independently of statute to compel the plaintiff to produce for the defendant’s inspection a document upon which the action is brought, where the defendant is a party to te document and has no copy of it.
This case is cited by:

  • See Also – Bluck -v- Gompertz ([1852] EngR 689, Commonlii, (1853) 7 Exch 862, (1852) 155 ER 1199)
    The defendant had signed an undertaking to procure the acceptance of two bills for £200 and £146 for wine supplied to an MP and agreed to see that they were duly paid. The latter draft should have been for £150. The plaintiff drew . .

Lyon v Baker; 30 Jun 1852

References: [1852] EngR 796 (A), (1852) 5 De G & Sm 622
Links: Commonlii
Coram: Sir James Parker VC
In a suit by a trustee against his co-trustee, a solicitor, and the parties beneficially interested under a will, some of them being infants, the costs of all parties had been ordered to be taxed and paid. It appeared that the Defendant trustee, the solicitor, had conducted his defence by his partner. The Taxing Master allowed the solicitor trustee costs out of pocket only. Held, that the rule which had allowed to solicitor trustees costs out of pocket only being well established, the Court would not, with reference to the question of costs, inquire whether the conduct of the suit by the partner of the solicitor trustee was beneficial for all parties, though no party objected to such inquiry, but that all costs beyond those out of pocket must be disallowed.

The Trusts of Waite’s Will Ex parte Pugh; 2 Jul 1852

References: [1852] EngR 803, 11 Vict c 96, (1852) 61 ER 428
Links: Commonlii
As between the husband’s creditors and the wife, in respect of the wife’s equity for a settlement, the Court will, under circumstances, give the wife more than one-half; and where the wife had been at the time of the marriage and long afterwards in circumstances of comfort, and was reduced to distress by the husband’s embarrassments, the Court gave the costs of the Petitioner and of the husband’s assignees out of the fund, which was £681, £400 to the wife, and the remainder to the Petitioner ; the wife’s costs out of her own fund.

Chamberlains v Lai; 11 Sep 2006

References: [2006] NZSC 70
Links: Nzlii
Coram: Elias CJ
NZLII Supreme Court of New Zealand) [1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided. An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.
[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies. And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions, often under the influence of developing international law.
[3] The present appeal raises the question whether public policy justifies retention of a limited common law immunity for legal practitioners from claims by their clients for professional negligence. In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous. No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent.
[4] The existing immunity, which attaches to court representation and work ‘intimately connected’ with it, was not clearly established as a matter of New Zealand law until the 1973 Court of Appeal decision in Rees v Sinclair. Rees v Sinclair applied the 1967 decision of the House of Lords in Rondel v Worsley. The immunity recognised in Rondel v Worsley was also adopted in the same form in Australia. No such sweeping immunity is known in Canada or in the United States federal jurisdiction.
[5] Rondel v Worsley has been controversial. Eleven years after it was decided, Lord Diplock in Saif Ali v Sydney Mitchell & Co expressed regret that the argument in that case had not extended to:
. . a more radical submission that the immunity of the advocate, whether barrister or solicitor, for liability for negligence even for what he says or does in court ought no longer to be upheld.
This case is cited by:

  • Cited – Jones -v- Kaney SC (135 Con LR 1, [2011] 2 WLR 823, [2011] BLR 283, [2011] 2 AC 398, [2011] 14 EG 95, [2011] 2 All ER 671, Bailii, [2011] UKSC 13, Bailii Summary, SC Summary, SC, UKSC 2010/0034)
    An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
    Held: The . .

Livesey v New South Wales Bar Association; 20 May 1983

References: (1983) 151 CLR 288, (1983) 47 ALR 45, (1983) 57 ALJR 420
Coram: Mason(1), Murphy(1), Brennan(1), Deane(1) and Dawson(1) JJ.
High Court of Australia – Courts and Judges – Bias – Prejudgment of issues and of credibility of witness – Refusal to withdraw.
The defendant barrister resisted an application to strike his name off the roll. B, at the time a law student and later an applicant for admission to the roll as a barrister, had provided $10,000 as cash surety for S, a defendant in criminal proceedings, who was then granted bail but absconded. The cash surety was duly forfeited. When B applied to be admitted as a barrister, the Admission Board rejected her application on the basis that she knew full well that the $10,000 surety was S’ money and not her own and could not therefore be used as surety. She appealed to the New South Wales Court of Appeal which heard evidence and concluded that B had not told the truth. Her case was that she had been lent the money by a Ms A and that she had been unaware that Ms A had herself obtained the money with the help of Livesey (S’ barrister) who had then transported the cash from Victoria to Sydney and visited S in jail before Ms A supposedly visited Ms B and offered to lend her the money. In circumstances where both Livesey and Ms A ‘well knew where the money had come from’, Moffitt P found it impossible to believe Ms B did not. When a subsequent application was made to disbar Livesey, he found that both Moffitt P and Reynolds JA were members of the tribunal hearing his case. He applied for them to recuse themselves but they refused and he was struck off the roll.
Held: ‘a fair-minded observer might entertain a reasonable apprehension of bias by reason of prejudgment if a judge sits to hear a case at first instance after he has, in a previous case, expressed clear views either about a question of fact which constitutes a live and sufficient issue in the subsequent case or about the credit of a witness whose evidence is of significance on such a question of fact.’
This case cites:

  • Approved – Ex Parte Lewin; In re Ward ([1964] NSWR 446, 80 WN (NSW) 1527)
    (Australia – New South Wales) The court heard an an application for a rule nisi for a writ of statutory prohibition directed to a magistrate in proceedings by a landlord for the recovery of premises. The magistrate had already heard and determined a . .

This case is cited by:

  • Cited – Otkritie International Investment Management and Others -v- Urumov CA (Bailii, [2014] EWCA Civ 1315)
    The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .

Status Supplies (T/A Olton International) v Revenue and Customs; Excs 12 Sep 2006

References: [2006] UKVAT-Excise E00990
Links: Bailii
Excs EXCISE TRANSIT PROCEDURE – revocation of excise duty guarantee given by transporter under CEMA 1979 s 157 – AADs not accompanying consignments from UK to France under duty suspension – transporter purporting to create substitute AAD – excise goods consigned to France diverted to West Midlands – AAD purporting to show receipt of goods in France not proved – observations on reasonableness of revocation – appeal dismissed

Piggot v The Eastern Counties Railway Company; 2 Jun 1846

References: [1846] EngR 734, (1846) 3 CB 229, (1846) 136 ER 92
Links: Commonlii
Coram: Tindal CJ
Sparks from the engine of a passing mail train set fire to the plaintiff’s cart lodge. The claim against the railway company was that they ‘so carelessly, negligently, and unskilfully managed and conducted their said steam-carriage and steam-engine’ that the plaintiff’s cart house was set on fire.
Held: The point in the case was the admissibility of evidence.
Tindal CJ described the underlying legal principles of the claim as a whole: ‘The defendants are a company intrusted by the legislature with an agent of an extremely dangerous and unruly character, for their own private and particular advantage: and the law requires of them that they shall, in the exercise of the rights and powers so conferred upon them, adopt such precautions as may reasonably prevent damage to the property of third persons through or near which their railway passes. The evidence in this case was abundantly sufficient to shew that the injury of which the plaintiff complains was caused by the emission of sparks, or particles of ignited coke, coming from one of the defendants’ engines; and there was no proof of any precaution adopted by the company to avoid such a mischance. I therefore think the jury came to a right conclusion, in finding that the company were guilty of negligence, and that the injury complained of was the result of such negligence.’ Thus although the locomotive was regarded as ‘dangerous’, liability still turned on negligence.
This case is cited by:

  • Cited – Stannard (T/A Wyvern Tyres) -v- Gore CA (Bailii, [2012] EWCA Civ 1248, [2013] Env LR 10, [2012] WLR(D) 266, [2012] 42 EG 133, [2013] 1 All ER 694)
    The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .

Callander v Oelrichs And Another; 12 Nov 1838

References: , [1838] EngR 915, (1838) 5 Bing NC 58, (1838) 132 ER 1026
Links: Commonlii
The court considered the extent of a duty of care which might be owed by an agent.
Bosanquet J. said: ‘The jury were warranted in concluding, that if the Defendants were to effect an insurance upon the terms in question, they undertook to give notice in case of failure: that undertaking arises out of the nature of the case, and the relation in which the parties stood to each other: and according to the principle laid down in Smith v. Lascelles if a merchant is led, from previous transactions, to expect that his correspondent will effect an insurance, he has a right to rely on his discharging that duty, unless he receives a letter to the contrary.
Whether that expectation arises from previous dealings, or from an undertaking to insure in the particular instance, can make no difference; and Buller J. says, ‘Where the merchant abroad has no effects in the hands of his correspondent, yet, if the course of dealing between them be such that the one has been used to send orders for insurance, and the other to comply with them, the former has a right to expect that his orders for insurance will be obeyed, unless the latter give him notice to discontinue that course of dealing.”

SCP Huglo, Lepage and Associes, Conseil v France: ECHR 1 Feb 2005

References: 59477/00, [2005] ECHR 50
Links: Worldlii, Bailii
ECHR Ratio Judgment (Merits and Just Satisfaction) – Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses (domestic proceedings) – claim dismissed; Costs and expenses partial award – Convention proceedings.
Last Update: 17-Mar-16 Ref: 227597

Public Works Commissioner v Hills: PC 1906

References: [1906] AC 368
Coram: Lord Dunedin
(Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable for work done as a guarantee fund to answer for defective work and also certain security money deposited with the Government. The amount of that retained money depended on the progress of contracts other than the one in suit.
Held: The clause was a penalty. The principle to be deduced from the Clydebank case was that the criterion of whether a sum was a penalty or damages was to be found in whether the sum in question ‘can or cannot be regarded as a ‘genuine pre-estimate of the creditor’s probable or possible interest in the due performance of the principal obligation.’ The question of whether a sum stipulated is penalty or liquidated damages is a question of construction to be decided upon the terms and inherent circumstances of each particular contract, judged of as at the time of the making of the contract, not as at the time of breach.
The Clydebank case was decided according to ‘the rules of a system of law where contract law was based directly on the civil law and no complications in the matter of pleading had ever been introduced by the separation of common law and equity.’
This case cites:

  • Cited – Clydebank Engineering Co -v- Castaneda HL (Bailii, [1904] UKHL 3, (1904) 12 SLT 498, (1904) 7 F (HL) 77, [1905] AC 6)
    The House considered a contract for the construction by a Scottish shipbuilder of four torpedo boats for the Spanish government. The contract provided that: ‘The penalty for late delivery shall be at the rate of £500 per week for each vessel’. . .
  • Cited – Public Works Commissioner -v- Hills PC ([1906] AC 368)
    (Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .

(This list may be incomplete)
This case is cited by:

  • Cited – Public Works Commissioner -v- Hills PC ([1906] AC 368)
    (Cape of Good Hope) A railway construction contract provided that in the event of a breach by the contractor he should forfeit ‘as and for liquidated damages’ certain percentages retained by the Government of the Cape of Good Hope of money payable . .
  • Cited – Dunlop Pneumatic Tyre Company Ltd -v- New Garage and Motor Company Ltd HL ([1915] AC 67, Bailii, [1914] UKHL 1, (1904) 12 SLT 498, (1904) 7 F (HL) 77)
    The appellants contracted through an agent to supply tyres. The respondents contracted not to do certain things, and in case of breach concluded: ‘We agree to pay to the Dunlop Pneumatic Tyre Company, Ltd. the sum of 5 l. for each and every tyre, . .

(This list may be incomplete)
Last Update: 02-Jan-16 Ref: 440838

Whitehouse v Fellowes; 12 Feb 1861

References: (1861) 10 CB (NS) 765, [1861] EngR 314, (1861) 10 CB NS 765, (1861) 142 ER 654
Links: Commonlii
Coram: Williams J, Byles J
The trustees of a turnpike road converted an open ditch by the side of the road into a covered drain but did so negligently, and the catch pits were constructed and kept, so that the drain was at times of heavy rain insufficient to carry off the water to its accustomed channel and was diverted onto other land causing damage. The issue was whether time began to run against a plaintiff from the date of the original construction of the works.
Held:’the continuance by the defendants of that negligent and improper condition of the road under their charge, if accompanied by fresh damage to the plaintiff, constitutes a new cause of action’. And ‘Suppose an action to have been commenced immediately after the first injury accrued to the plaintiff’s pits from the flow of water down the road in question: when that cause came to be tried, the only question would be how much damage the plaintiff had actually sustained. It would be monstrous injustice to hold that the damages must be assessed upon that assumption. All that the jury could do would be to find what damages the plaintiff had sustained from the wrongful act complained of: and they would be told to give him such damages as they might find he has sustained down to the time of the commencement of the action. According to the assumption, the plaintiff has sustained damage from the wrongful construction of the nuisance. Did the statute intend that he should have no remedy for that? The true answer to this objection, as it seems to me, is, that no fresh cause of action arises from each fresh damage, but that, where there is not only a fresh damage but a continuance of the cause of damage, such continuance of the wrongful act which caused the damage constitutes a fresh cause of action.’
Byles J said: ‘There would be a new and distinct injury every time a storm came; and this declaration is in form a declaration for a continuation of a nuisance.’
Keating J stated:
‘Here is a continuation of the nuisance, and a new distinct and complete cause of action in respect thereof, for which I think the plaintiff had a right to sue.’

Arch Financial Products Llp and Others v Financial Services Authority; UTTC 30 Nov 2012

References: [2012] UKUT B28 (TCC)
Links: Bailii
UTTC DECISION NOTICE – publication – whether Upper Tribunal should prohibit publication on grounds of potential serious reputational damage prejudice to civil proceedings or possible settlement discussions – FSMA 2000 S.391– Trib Proc (UT) Rules 2008 14(1) and Sch 3 para 3(3)
Statutes: Financial Services and Markets Act 2000 391

HMRC v SL; UTTC 19 Nov 2009

References: [2009] UKUT 244 (TCC), [2010] STC 486, [2010] BVC 1503, [2010] STI 555
Links: Bailii
UTTC ZERO-RATING – alterations to listed building – new building in the curtilage of listed building – planning permission that it ‘shall only be used for purposes either incidental or ancillary to the residential use’ of the main listed building – whether a prohibition on separate use (Note 2(c) VATA 1994 Sched 8 Group 6) – no – appeal allowed

Greater Vancouver Transportation Authority v. Canadian Federation of Students – British Columbia Component; 10 Jul 2009

References: [2009] 2 SCR 295, 309 DLR (4th) 277, 2009 SCC 31, [2009] 8 WWR 385, 272 BCAC 29, 389 NR 98, 93 BCLR (4th) 1, EYB 2009-161351, JE 2009-1320, [2009] SCJ No 31 (QL), 179 ACWS (3d) 98, 192 CRR (2d) 336
Links: Canlii
Coram: McLachlin CJ and Bastarache,* Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application of Charter – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Actions brought alleging that transit authorities’ policies violated freedom of expression – Whether entities which operate public transit systems ‘government’ within meaning of s. 32 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Freedom of expression – Advertisements on buses – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Whether advertising policies infringing freedom of expression – If so, whether infringement can be justified – Canadian Charter of Rights and Freedoms, ss. 1, 2(b).
Constitutional law – Charter of Rights – Reasonable limits prescribed by law – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies infringing freedom of expression -Whether policies are ‘law’ within meaning of s. 1 of Canadian Charter of Rights and Freedoms.
Constitutional law – Charter of Rights – Remedy – Transit authorities’ advertising policies permitting commercial but not political advertising on public transit vehicles – Policies unjustifiably infringing freedom of expression – Declaration that policies are of ‘no force or effect’ sought – Whether declaration ought to be based on s. 52 of Constitution Act, 1982 or s. 24(1) of Canadian Charter of Rights and Freedoms – Whether policies are ‘law’ within meaning of s. 52 of Constitution Act, 1982.

Regina v Patel; 7 Nov 2014

Links: Judiciary
Coram: Singh J
Crown Court at Southwark. Remarks of Singh J on the sentencing of the defendant for acquiring a biological toxin, namely Abrin. A first package had been obained via a website, but was discarded. He sought a second package, but by then the seller had been arrested and US police conducted negotiations and he in turn was arrested.
Held: This was the first time an offence under the section of the Act had come for sentencing. 3 years was imposed.
Statutes: Biological Weapons Act 1974 1

Khan v The Financial Conduct Authority; UTTC 8 Apr 2014

References: [2014] UKUT B6 (TCC)
Links: Bailii
UTTTC FINANCIAL SERVICES – financial penalty for submitting fraudulent mortgage applications – whether conduct of applicant dishonest or recklessfound to be dishonest-whether imposition of financial penalty appropriateyes – scale of appropriate penalty – whether appropriate in the circumstances to take account of applicant’s means – yes – Authority directed to impose penalty of £80,000 – reference dismissed

Walter v De Richemont, Commonly Called Le Vicomte De Richemont; 18 Nov 1844

References: [1844] EngR 982, (1844) 6 QB 544, (1844) 115 ER 204
Links: Commonlii
A defendant arrested on capias upon a Judge’s order, under stat. 1 & 2 Vict c, 110, s. 3, is supersedeable unless the plaintiff proceed to execution within two terms inciusive after judgment, conformably to R Hil. 2 W. 4, I. 85. And, where judgment in debt was signed for want of a plea: Held, that the time ran from such signing, although the costs were not taxed.

Merrill Lynch, Pierce Fenner and Smith Inc v Raffa; 11 May 2000

References: [2001] 1 LPR 31
Coram: Judge Raymond Jack Q.C
The judge ruled on the admission of admissions made by the defendant at without prejudice meetings. There was acceptance of Mr Raffa’s involvement in the fraud though he raised the question of collaborators. If he did admit at least his involvement, any defence denying that would be dishonest and supporting it would involve perjury. It was the heart of the litigation. In Unilever the court referred to the exclusion of the evidence as a cloak for perjury. That situation would arise here. The admissions were admissible on that basis. It was a very clear case.
This case is cited by:

  • Distinguished – Berry Trade Ltd and Another -v- Moussavi and others CA (Bailii, [2003] EWCA Civ 715, Times 03-Jun-03, Gazette 17-Jul-03)
    A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
    Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .
  • Cited – Savings & Investment Bank Ltd (In Liquidation) -v- Fincken CA (Bailii, [2003] EWCA Civ 1630, Times 25-Nov-03, Gazette 15-Jan-04, [2004] 1 WLR 667, [2004] 1 All ER 1125)
    Parties to litigation had made without prejudice disclosures. One party sought to give evidence contradicting the dsclosure, and the other now applied for leave to amend based upon the without prejudice statements to be admitted to demonstrate the . .

IBM Corporation/Data processor network; EPO 1990

References: [1990] EPOR 91, 06/83
A new method of communicating between programs and data files within the computer, so that they operated effectively as a single entity, was held by the Board to be properly ‘regarded as solving a problem which is essentially technical’ and therefore it did not fall foul of art 52(2). While programs for computers were included in the items listed in Article 52(2), if the claimed subject matter had a technical character it was not excluded from patentability.
This case is cited by:

Swaffield v Orton; 2 Jun 1847

References: [1847] EngR 576, (1847) 1 De G & Sm 326, (1847) 63 ER 1088
Links: Commonlii
A testator, after bequeathing to his daughter (a widow) an annuity, and directing his trustees to set apart a sufficient sum of stock to answer the growing payments, bequeathed his residuary personal estate to and to be equally divided between his grandson and granddaughter (by name) as tenants in common ; but in case of the death of the granddaughter, under twenty-one and unmarried, in the lifetime of the grandson, or in case of the death of the grandson in the lifetime of the granddaughter, under twenty-one, he bequeathed the whole to the survivor ; and, after directing payment, during the minority of the grandchildren, for their maintenance, the testator directed that the clear surplus of the income of his residuary estate should accumulate in the hands of his executors, and be added to the principal of the share of his grandchildren in the residue, and directed that his grandchildren respectively should not be entitled to receive his or her share, or the accumulations, until after the death of their mother (the annuitant). The granddaughter married under age, and articles were executed on her marriage, whereby it was agreed, when she became entitled to the absolute and immediate possession of any part of the residuary estate, the same and all accumulations should be settled on certain trusts for the separate use of the wife for life, with subsequent trusts for the husband and children, and a proviso referring to and dependent on the trust for accumulation in the will. On a bill filed by the granddaughter, during her mother’s lifetime, for a transfer of the fund : Held, that the direction to accumulate in the will was precarious and ineffectual, and was not rendered otherwise by the settlement, and that the granddaughter’s moiety became capital at her marriage, and that the accumulations since that period belonged to her for her separate use.

Cooper v Grant; 24 Apr 1852

References: [1852] EngR 485, (1852) 12 CB 154, (1852) 138 ER 860
Links: Commonlii
A warrant of attorney was attested by an attorney introduced by the plaintiff, and who had on one former occasion acted professionally for the plaintiff, and who afterwards acted as the plaintiff’s attorney in entering up judgment and issuing execution upon the warrant of atttorney : The court set it aside. In such a case, the court will not impose upon the defendant the terms of bringing no action.

Whitmore v Turquand; 21 Dec 1860

References: [1860] EngR 1304, (1860) 1 J & H 444, (1860) 70 ER 821
Links: Commonlii
Where a composition deed is executed in favour of all creditors who shall accede within a stipulated time, creditors who neither assent nor dissent within the time are not necessarily excluded from all benefit of the deed; and, under the circumstances of the case, creditors who had delayed their accession to a composition deed for several years after the limited time. Held, entitled to participate in the benefits thereof.

Kay v Butterworth: 1945

References: (1945) 61 TLR 452
Coram: Humphreys J
A man who became unconscious whilst driving due to the onset of a sudden illness should not be made liable at criminal law.
This case is cited by:

  • Cited – Hill -v- Baxter ([1958] 1 QB 277)
    The Court was asked whether the accused had put forward sufficient evidence on a charge of dangerous driving to justify the justices adjudging that he should be acquitted, there having been no dispute that at the time when his car collided with . .
  • Mentioned – Regina -v- Quick CACD ([1973] QB 910, Bailii, [1973] EWCA Crim 1, (1973) 137 JP 763, [1973] 3 All ER 347, (1973) 57 Cr App Rep 722, [1973] 3 WLR 26)
    The defendant appealed against his conviction for assault. He had pleaded guilty after a ruling by the judge as to the meaning of the phrase ‘a defect of reason, from disease of the mind’ within the meaning of the M’Naughten Rules. More particularly . .

Hamilton v Mendes; 8 Jun 1761

References: 97 ER 787, (1761) 2 Burr 1198, [1761] EngR 56, (1761) 2 Burr 1198, (1761) 97 ER 787
Links: Commonlii
Coram: Lord Mansfield
The daily negotiations and property of merchants ought not to depend upon subtleties and niceties; but upon rules, easily learned and easily retained, because they are the dictates of common sense, drawn from the truth of the case.
This case is cited by:

  • Cited – Homburg Houtimport BV -v- Agrosin Private Ltd (the ‘Starsin’) HL (House of Lords, [2003] UKHL 12, Bailii, Times 17-Mar-03, Gazette 15-May-03, [2003] 2 WLR 711, [2004] 1 AC 715, [2003] 1 CLC 921, 2003 AMC 913, [2003] 1 Lloyd’s Rep 571, [2003] 1 All ER (Comm) 625, [2003] 2 All ER 785, [2003] 1 LLR 571)
    Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
    Held: The specific . .

Wright v Vanderplank; 20 Jul 1855

References: [1855] EngR 696, (1855) 2 K & J 1, (1855) 69 ER 669
Links: Commonlii
In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child’s property, and in receipt of the rents of a considerable estate ; and throws upon the parent the onus of shewing plainly and unequivocally that the gift was made not in consequence of representations on his part, but by the spontaneous act of the child, and that the child had full knowledge of the nature of the deed by which the gift was effected? and of his own position and rights in reference to the property.
A deed was executed by a lady, five months after she came of age, disentailing part of her estates, and giving, for a nominal consideration, an estate for life in the disentailed part to her father, who, during her minority, had been her guardian, and in receipt of the rents of her estates. Held (obiter), that if a bill had been filed shortly after the transaction, either before or possibly after the lady’s marriage, which was solemnised sixteen months after the execution of the deed, the transaction could not have been supported, the deed itself not explaining the nature of the transaction, aud it not being shewn that the daughter had proper professional advice, that the nature of the transaction was explained to or understood by her, or that the gift was spontaneous or made at a time or under circumstances when she was free from parental influence.
But a bill, which, after the daughter’s decease, and nearly ten years after the execution of the deed, was filed by her husband on whom her rights had devolved, praying to have the father declared a trustee of the life interest, and an account of the rents which accrued during his daughter’s minority or afterwards, was dismissed on the ground of laches, it appearing (inter alia) that the Plaintiff was aware of all the circumstances previously to his marriage, and the Court being of opinion, upon the evidence, that, eight years before the bill was filed, both the Plaintiff and his
deceased wife had acquiesced in the transaction.
This case is cited by:

  • Appeal from – Wright -v- Vanderplank ([1856] EngR 331, Commonlii, (1856) 8 De G M & G 133, (1856) 44 ER 340)
    A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, . .
  • Cited – Adamson and Others -v- Paddico (267) Ltd SC (Bailii, [2014] UKSC 7, [2014] 1 AC 1072, [2014] 1 P & CR 24, [2014] 2 WLR 300, [2014] 2 All ER 1, [2014] JPL 745, [2014] WLR(D) 51, [2014] BLGR 249, [2014] 1 P &CR 24, WLRD, Bailii Summary, SC Summary, SC, UKSC 2012/0089)
    Land had been registered as a town or village green but wrongly so. The claimant had sought rectification, but the respondents argued that the long time elapsed after registration should defeat the request.
    Held: The appeal were solely as to . .

Wright v Vanderplank; 8 Mar 1856

References: [1856] EngR 331, (1856) 8 De G M & G 133, (1856) 44 ER 340
Links: Commonlii
A daughter executed a deed of gift of a life-interest to her fathr, soon after she attained twenty-one, having no advice except that of her father’s solicitor who however stated that he had on that occasion acted as the solicitor of the daughter, and had informed the father that he could take no instruction from him. She afterwards consulted a different solicitor as to the validity of the deed, and corresponded with her father on the subject of the application of the rents of the property. A year afterwards she married, and negotiations took plaoe between her father and a solicitar, who acted for her intended husband and also for her, from which it appeared that she was aware of her father’s interest under the deed of gift, and made no objection to it. She and her husband executed a post-nuptial settlement, which was expressed to be subject to the father’s life estate, She died more ten years after the date of the deed of gift, and then her husband, to whom her right devolved, filed a bill to set that deed aside.
Held: 1st that it might have been set aside but for subsequent acts of acquiescence ; 2nd that there had been such acquiescence as to afford an effectual defence to the suit.
This case cites:

  • Appeal from – Wright -v- Vanderplank ([1855] EngR 696, Commonlii, (1855) 2 K & J 1, (1855) 69 ER 669)
    In every case of a gift to a parent by a child, shortly after the child attains majority, the Court looks with jealousy upon the transaction, more especially when the parent has, during the minority, been guardian of the child’s property, and in . .

Holt v Hardcastle; 3 Nov 1838

References: , [1838] EngR 882, (1838) 3 Y & C Ex 236, (1838) 160 ER 688
Links: Commonlii
Where a sole plaintiff becomes bankrupt, and the defendant wishes to speed the cause, although he can obtain no direct order against the assignees to continue the suit, he may move that unless they file a supplemental bill within a given time the suit shall be dismissed.

Aston v Secretary of State for the Environment; 9 Apr 1973

References: Unreported, 09 April 1973
Coram: Lord Widgery CJ
The court considered the planning effect of a new building on about a half of a site. Lord Widgery CJ: ‘. . The principle which one derives from the authorities and applies to the present case is that, where you have a new building erected, that part of the land which was absorbed in the new building and covered by the new building is merged in it; you start with a new planning unit which has no permitted planning use except those derived from the planning permission, if any, and from section 33(2) of the Town and Country Planning Act 1971, which allows such a building in many instances to be used for the purpose for which it was designed.’
Statutes: Town and Country Planning Act 1971 33(2)
This case is cited by:

  • Approved – Newbury District Council -v- Secretary of State for the Environment HL ([1981] AC 578, [1980] 1 All ER 731, [1980] 2 WLR 379)
    Issues arose as to a new planning permission for two existing hangars. The question of the validity of conditions attached to planning permissions will sometimes be a difficult one. To be valid, a condition must be imposed for a planning purpose and . .
  • Cited – Jennings Motors Ltd -v- Secretary of State for the Environment and another CA ([1982] 1 All ER 471, [1982] QB 541, [1982] 2 WLR 131, (1981) 43 P & CR 316)
    The land owners had demolished a building and erected a new building on a small part of the entire site, but without obtaining planning permission. The local authority argued that this was a change of use and a breach of planning control.

Fawcett v Whitehouse; 21 Dec 1829

References: (1829) 1 Russ & M 132, [1829] EngR 859, (1829) 1 Russ & My 132, (1829) 39 ER 51
Links: Commonlii
The defendant, intending to enter into a partnership with the plaintiffs, negotiated for the grant by a landlord of a lease to the partnership. The landlord paid the defendant £12,000 for persuading the partnership to accept the lease.
Held: The defendant was accountable to the new partnership for the money. It would otherwise have been a fraud on his partners. An agent, who was negotiating on behalf of a prospective lessee and who accepted a ‘loan’ from the lessor, held the loan on trust for his principal, the lessee.
This case is cited by:

  • Cited – Simms -v- Conlon and Another CA ([2008] 1 WLR 484, Bailii, [2006] EWCA Civ 1749, Times 17-Jan-07, [2007] 3 All ER 802)
    Solicitors within a practice sued each other, and one wished to plead the fact of a finding of professional misconduct.
    Held: The defendant’s appeal succeeded. It was not an abuse for the appellant to continue to assert his innocence, and the . .
  • Cited – FHR European Ventures Llp and Others -v- Cedar Capital Partners Llc SC (Bailii, [2014] UKSC 45, [2014] 2 Lloyd’s Rep 471, [2014] 2 All ER (Comm) 425, [2014] WTLR 1135, [2014] 4 All ER 79, [2015] 1 AC 250, [2014] Lloyd’s Rep FC 617, [2014] 3 WLR 535, [2014] WLR(D) 317, [2014] 2 BCLC 145, [2015] 1 P &CR DG1, Bailii Summary, WLRD, UKSC 2013/0049, SC, SC Summary, SC Video)
    The Court was asked whether a bribe or secret commission received by an agent is held by the agent on trust for his principal, or whether the principal merely has a claim for equitable compensation in a sum equal to the value of the bribe or . .

Black and Others v Arriva North East Ltd; 1 May 2013

References: Unreported, 1 May 2013
Coram: Bowers HHJ
Middlesborough County Court. The claimants complained of a policy by the defendant bus company as to the use of wheelchair spaces on buses in that disabled users were not given absolute priority above buggy users.
Held: The company were not guilty of unlawful discrimination.
Statutes: Equality Act 2010
This case is cited by:

  • Cited – Firstgroup Plc -v- Paulley CA (Bailii, [2014] EWCA Civ 1573)
    The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .
  • Cited – Firstgroup Plc -v- Paulley CA (Bailii, [2014] EWCA Civ 1573)
    The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .

Scottish Insurance Commissioners v Church of Scotland; CS 1914

References: 1914 SC 16
Coram: Lord Kinnear, Lord Johnstone, Lord Mackenzie
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.’
This case is cited by:

  • Cited – Percy -v- Church of Scotland Board of National Mission HL (Bailii, [2005] UKHL 73, House of Lords, Times 16-Dec-05, [2006] 2 WLR 353, [2006] ICR 134, [2006] IRLR 195, [2006] 2 AC 28, 2006 SLT 11, [2006] 4 All ER 1354)
    The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .

P v The General Council of the Bar; Re P (A Barrister); 24 Jan 2005

References: [2005] 1 WLR 3019
Coram: Colman J, Clark, Nathan
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to hear the barrister’s appeal included N, who was also a member of the Bar’s Professional Conduct and Complaints Committee. That Committee was responsible for prosecuting allegations of misconduct, although N had not been involved in prosecuting the current case. The appellant barrister objected to N’s participation: ‘Ms N would be a judge in her own cause. This would also be a situation of apparent bias for, although it was accepted that she had taken no part in the particular decision of the PCCC to prosecute the Appellant and that there was no actual bias on her part, there was nevertheless a real apprehension or danger or possibility or suspicion of bias by reason of her membership of the PCCC.’
Held: The objection succeeded. N was obliged to recuse herself both on common law principles and in order to secure compliance with ECHR article 6. The decision was rendered under the doctrine that no one must be a judge in his own cause, rendering it unnecessary to consider whether the doctrine of apparent bias was also an impediment to Ms Nathan’s participation. However, the judgment expressed the firm view that the doctrine of apparent bias did also require Ms Nathan’s recusal.
‘The decision by the PCCC to institute proceedings against a barrister thus imposes upon the PCCC as agent for the Bar Council a duty to prosecute that person and, consistently with the applicable procedure, to present the case against the barrister in a manner designed to procure conviction. Whereas it is undoubtedly true that the proceedings in which the charges are prosecuted must be fairly and justly conducted, those representing the Bar Council have a duty as its agents to procure conviction or in the case of appeals before Visitors to defeat an appeal. They do not have the function of a neutral amicus. Their interest is conviction or dismissal of appeals . .
In considering whether a lay representative on a Visitors Panel shares the interest of the PCCC, of which that person is a member, in the appeal being dismissed, an analysis of the quality of that particular member’s ability to maintain objectivity is nothing to the point. Nobody called in question Lord Hoffmann’s personal ability to be objective and impartial. Nor, in our judgment, does the fact that the purpose of including lay representatives on the PCCC and as members of the Visitors panel, have the effect of insulating such persons from having the appearance of sharing the interest of the PCCC as a prosecutor. Lord Hoffmann’s judicial oath could provide no such insulation. Nor do we find that a lay representative’s non-participation in meetings relating to the prosecution in question, cuts off that person from the responsibility which, as a member of the PCCC, that lay representative bears together with its other members for taking forward and facilitating the prosecution. Lord Hoffmann was not a decision-taker at either Amnesty International or AICL with regard to participation in the proceedings . .
Accordingly, the perception of impartiality is to be based on that which is open to view and not on facts which would be hidden from an outside fair-minded observer.
If therefore one assumes that the scope of the hypothetical fair-minded observer’s knowledge is confined to the Code of Conduct of the Bar, the Disciplinary Tribunal Regulations, the Complaints Rules and the Hearings before the Visitors Rules and does not extend to the methods of selection of the members of the PCCC or, except in so far as they should not have attended the relevant meeting of the PCCC, the Visitors panels or to the attendance records of lay representatives at meetings of the PCCC, we consider that even taking account of the high calibre of lay representatives generally and of their function in representing the public interest, there would be a perception to the fair-minded observer of a real possibility of subconscious lack of impartiality by reason of exposure to influence by such prosecuting policies as might exist amongst PCCC members generally.’
Statutes: European Convention on Human Rights 6
This case cites:

  • Cited – Dimes -v- Proprietors of Grand Junction Canal and others HL ((1852) 3 HL Cas 759, [1852] EngR 789, Commonlii, (1852) 3 HLC 759, (1852) 10 ER 301)
    The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .

This case is cited by:

Peters v Sinclair; 6 May 1913

References: 1913 CanLII 8 (SCC), 48 SCR 57
Links: Canlii
Coram: Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
Ratio 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.
This case cites:

  • Cited – Attorney-General -v- Antrobus ChD ([1905] 2 Ch 188)
    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 . .

(This list may be incomplete)

Last Update: 15-May-16
Ref: 540228

Sullivan v Sullivan, Falsely Called Oldacre; 11 Jun 1818

References: [1818] EngR 533, (1818) 2 Hag Con 238, (1818) 161 ER 728
Links: Commonlii
Nullity of marriage, by reason of publication of banns in false names, not supported in fact. This was a suit of nullity of marriage, by reason of the publication of banns not being made in the true names of the parties. The suit was brought by the father of the husband, as his natural guardian. The libel stated the circumstances, in which it was alleged that the marriage was effected by artifices and misrepresentations, and in a, cladestine manner, and in a parish to which neither of the parties belonged, and entirely unknown to the father of the minor; and that it was celebrated by banns under a false designatdon of the woman.
‘The strongest case you could establish of the most deliberate plot, leading to a marriage the most unseemly in all disproportions of rank, of fortune, of habits of life, and even of age itself, would not enable this Court to release him from chains which, though forged by others, he had riveted on himself. If he is capable of consent and has consented, the law does not ask how the consent has been induced.

In re P, Q, R and S (Children); FC 5 Dec 2014

References: [2014] EWFC B166
Links: Bailii
Coram: Lynch HHJ
Applications for adoptive placment.
Held: ‘P, Q, R and S have suffered and are likely to suffer significant harm, which harm or likelihood of harm is attributable to the care given to the children or likely to be given to them if the order was not made not being what it would be reasonable to expect a parent to give to them. The court is satisfied of this because it finds that the children have experienced family life shaped by inadequate parenting, such that their physical and emotional needs including their need for stability and consistency have been neglected, and as a result the children have suffered. In particular:
1. The parents’ relationship is volatile and chaotic. It involves serious allegation and counter allegation followed by withdrawal and reconciliation.
2. The children have frequently been present and involved in the situation when one parent makes allegations against the other and these are often in aggressive terms.
3. The children have experienced instability at home as a result of parental conflict, home moves, change of carer and separation from siblings.
4. The parents’ relationships with professionals are volatile and chaotic. The parents’ refusal to work with professionals has impacted negatively upon the children’s welfare.
5. The children have lived with parents whose mental health/emotional stability significantly fluctuates. Their mental health difficulties have impacted upon their ability to meet the needs of their children consistently.
6. All of the above has had a significant and negative impact on the emotional and physical welfare of the children. All the children have had their welfare neglected and have suffered harm whilst in the care of their parents.
7. The parents have shown no acceptance or understanding of the inadequacies in the way they way they have parented their children or the adverse impact this has had and would have in the future on their children. It is therefore likely that if the children return to the care of their parents they will suffer further emotional and physical harm as a result of neglect of their welfare needs.’

Re C (Children Appeal); FC 30 May 2014

References: [2014] EWFC B163
Links: Bailii
Coram: Eaglestone HHJ
Application by the father for permission to appeal as to whether care orders in respect of the children should be discharged with the result the children could return to live with their father; whether the section 34(4) order should be discharged so that the children could have direct contact with their father; and thirdly, whether upon the Guardian’s application an order under section 91(14) should be made by the court of its own motion so that the father may not issue any further applications under the Children Act without leave of the court.
Statutes: Children Act 1989

Housen v Nikolaisen; 28 Mar 2002

References: [2002] 2 SCR 235, 2002 SCC 33
Links: SCC
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ
Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Municipal law — Negligence — Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Appeals — Courts — Standard of appellate review — Whether Court of Appeal properly overturning trial judge’s finding of negligence — Standard of review for questions of mixed fact and law.
‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’
This case is cited by:

  • Cited – McGraddie -v- McGraddie and Another (Scotland) SC (Bailii, [2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, WLRD, Bailii Summary, UKSC 2012/0112, SC Summary, SC)
    The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
  • Cited – Henderson -v- Foxworth Investments Limited and Another SC (Bailii Summary, [2014] 1 WLR 2600, Bailii, [2014] UKSC 41, [2014] WLR(D) 290, 2014 GWD 23-437, 2014 SLT 775, [2014] WLR(D) 290, 2014 SCLR 692, WLRD, UKSC 2013/0083, SC, SC Summary)
    It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
    Held: The critical issue was whether ‘the alienation was made for adequate consideration’. . .

Cooper v The Board of Works For The Wandsworth Destrict; 21 Apr 1863

References: [1863] EngR 424, (1863) 14 CB NS 180, (1863) 143 ER 414
Links: Commonlii
Coram: Erie CJ, Willes J, Byles J
Where a land-owner owner had failed to give proper notice to the Board, the Board had, under the 1855 Act, power to demolish any building he had erected and recover the cost from him. The plaintiff said that the Board had used that power without giving the owner an opportunity of being heard. The Board maintained that their discretion to order demolition was not a judicial discretion and that any appeal should have been to the Metropolitan Board of Works.
Held: The claim succeeded. Erie CJ said that the power was subject to a qualification repeatedly recognised that no man is to be deprived of his property without his having an opportunity of being heard. This rule had been applied to: ‘many exercises of power which in common understanding would not be at all a more judicial proceeding than would be the act of the district board in ordering a house to be pulled down.’
Willes J said that the rule was ‘of universal application and founded upon the plainest principles of justice.’ and ‘I apprehend that a tribunal which is by law invested with power to affect the property of one Her Majesty’s subjects is bound to give such subject an opportunity of being heard before it proceeds, and that rule is of universal application an founded upon the plainest principles of justice.’
Byles J said that ‘although there are no positive words in a statute requiring that the party shall be heard yet the justice of the common law will supply the omission of the legislature.’
Statutes: Metropolis Local Management Act 1855
This case is cited by:

  • Cited – Bank Mellat -v- HM Treasury QBD (Bailii, [2010] EWHC 1332 (QB), WLRD, [2010] WLR (D) 148)
    The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
  • Cited – Lumba (WL) -v- Secretary of State for The Home Department SC (Bailii, [2011] UKSC 12, Bailii Summary, SC, UKSC 2010/0062, UKSC 2010/0063, SC Summary)
    The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
  • Cited – Osborn -v- The Parole Board SC (Bailii, [2013] UKSC 61, [2013] 3 WLR 1020, [2014] HRLR 1, [2013] WLR(D) 374, [2014] 1 All ER 369, Bailii Summary, WLRD, UKSC 2011/0147, SC Summary, SC)
    Three prisoners raised questions as to the circumstances in which the Parole Board is required to hold an oral hearing before making an adverse decision. One of the appeals (Osborn) concerned a determinate sentence prisoner who was released on . .

Freeman v Butler; 16 Nov 1863

References: [1863] EngR 954 (A), (1863) 33 Beav 289
Links: Commonlii
The defendant, the trustee and executor, was also a mortgagee on part of the estate. Upon a bill for the administration of the estate, Held that the Defendant was not bound to produce the mortgage and title-deeds, but that he must produce all, accounts in his possession relating to the mortgage.

Ilyssia Compania Naviera SA v Bamaodah ‘The Elli 2’: CA 1985

References: [1985] 1 Lloyd’s Rep 107
Coram: May LJ, Ackner LJ
May LJ considered the creation of a contract by implication, saying: ‘no such contract should be implied on the facts of any given case unless it is necessary to do so: necessary, that is to say, in order to give business reality to a transaction and to create enforceable obligations between parties who are dealing with one another in circumstances in which one would expect that business reality and those enforceable obligations to exist.’
As to choice of jurisdiction by choice of law, May LJ considered BP v Hunt, saying that he would not go so far as Kerr J in saying that the fact that the contract was governed by English law was a predominating factor. That factor would have a different weight in different circumstances.
Ackner LJ observed that where exclusive reliance was placed on the contract being governed by English law, the burden of showing that there was good reason justifying service out of the jurisdiction was a particularly heavy one.
This case is cited by:

  • Cited – Sawyer -v- Atari Interactive Inc ChD (Bailii, [2005] EWHC 2351 (Ch), [2006] ILPr 8)
    The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
  • Cited – Novus Aviation Ltd -v- Onur Air Tasimacilik As CA (Bailii, [2009] EWCA Civ 122, [2009] 1 CLC 850, [2009] 1 Lloyd’s Rep 576)
    The defendant appealed against a refusal to set aside the grant of leave to serve outside the jurisdiction granted to the claimant. Neither party conducted and business in England, and the contract was made in Switzerland, but was expressed to be . .

Post Investments Pty Ltd v Wilson; 1 Feb 1990

References: (1990) 26 NSWR 598
Coram: Powell J
Ratio (New South Wales) The court considered the situation where both the dominant and servient lands affected by a restricive covenant came into common ownership. There must be complete unity not merely of ownership, but also of possession. The law has developed by analogy with the law relating to easements, and the benefit of a restrictive covenant is destroyed ‘upon the ownership and possession of both dominant and servient tenements coming into the same hands’. The basis for the qualification is that a restrictive covenant is not to be extinguished if there continues to exist a person (whether or not the successor in title to the estate held by the original covenantor or the original covenantee) entitled to the benefit or subject to the burden of the restrictive covenant.
This case is cited by:

(This list may be incomplete)

Last Update: 14-May-16
Ref: 220708

Cross v Ayres and Horncastle; 24 Apr 1858

References: [1858] EngR 596, (1858) 1 F & F 187, (1858) 175 ER 684
Links: Commonlii
In an action for an excessive distress, with counts for selling without, an appraisement and for less than the value, and for not leaving over the surplus proceeds in the hands of the sheriff, according to the statute , there being no count for not paying the money over to the plaintiff, nor for detaining it an unreasonable time, nor for money had. and received to his use ; and the jury finding that the rent for which the distress was made was due, but that the defendants seized to an unreasonable amount, but that the plaintiff had authorized the defendant to seize and sell the whole ; and the defence being, that the surplus having been paid over to a judgment creditor of the plaintiff’s under a garnishment order for the attachment of the money obtained by the creditor in consequence of an intimation of the distress given to him by the defendant, and the jury finding that this was a juggle, and, under the direction of the Judge, giving a verdict for the plaintiff for the amount of the surpius proceeds ; the postea was afterwards altered by entering a verdict for the plaintiff, with riomrnal damages, on the first count, and for the defendant on tbe others , the payment over to the credttor urider the garnishment order being held to have been a Iegal justification. The Judge having entered the verdict for the plaintiff for nominal damages, the Court discharged cross rules to enter it for the defendant, or for substantial damages.

Freeman v Read; 4 Jun 1863

References: [1863] EngR 643, (1863) 4 B & S 174, (1863) 122 ER 425
Links: Commonlii
Coram: Cockburn CJ
When the relevant period for the giving of a notice is a month or specified number of months after the giving of a notice, the general rule is that the period ends upon the corresponding date in the appropriate subsequent month, ie the day of that month that bears the same number as the day of the earlier month on which the notice was given. Cockburn CJ described the rule as ‘in accordance with common usage . . and with the sense of mankind’
This case is cited by:

  • Cited – Dodds -v- Walker HL ([1981] 1 WLR 1027, [1981] 2 All ER 609)
    The landlord served his notice to determine the tenancy on the last day of a 30 day month. The tenant served his counternotice on the 31st day of the month four months later.
    Held: Dismissing the tenant’s appeal, the House found that the court . .
  • Cited – O’ Connor Utilities Ltd -v- HMRC Admn (Bailii, [2009] EWHC 3704 (Admin), [2010] STI 624, [2010] STC 682)
    . .

Lester v Garland; 8 Aug 1808

References: (1808) 15 Ves Jun 248, 33 ER 748, [1808] EngR 326, (1808) 15 Ves Jun 248, (1808) 33 ER 748
Links: Commonlii
Bequest of residue in trust in case A shall within six months after testator’s decease give security not to marry B then and not otherwise to pay to the children of A; with a proviso to go over if she shall refuse or neglect to give such security. A condition precedent. Six months exclusive of day of death – security given on six months anniversary.
Held: There was no general rule in computing time from an act or event that the day is inclusive or exclusive – depends on the reason of the thing according to circumstances.
This case is cited by:

  • Cited – Trafford Metropolitan Borough Council -v- Total Fitness UK Ltd CA (Gazette 07-Nov-02, Bailii, [2002] EWCA Civ 1513)
    The landlord served a notice to quit. It gave a date calculated by reference to the notice period, but then stated the date on which it expired. Under the rule in Lester, the notice period only began on the day after service, and that resulted in a . .
  • Cited – Dodds -v- Walker HL ([1981] 1 WLR 1027, [1981] 2 All ER 609)
    The landlord served his notice to determine the tenancy on the last day of a 30 day month. The tenant served his counternotice on the 31st day of the month four months later.
    Held: Dismissing the tenant’s appeal, the House found that the court . .

Perez v Brownell; 31 Mar 1958

References: [1958] USSC 56, 356 US 44, 78 SCt 568, 2 LEd2d 603
Links: Worldlii
Coram: Frankfurter J, Warren CJ
(United States Supreme Court)
Warren CJ (dissenting) described a right to nationality as ‘man’s basic right for it is nothing less than the right to have rights’.
This case is cited by:

  • Cited – Secretary of State for The Home Department -v- Al-Jedda SC (Bailii, [2013] UKSC 62, Bailii Summary, [2013] WLR(D) 371, [2014] AC 253, [2014] INLR 131, [2014] 1 All ER 356, [2014] Imm AR 229, [2014] 1 AC 253, [2014] HRLR, [2013] 3 WLR 1006, UKSC 2012/0129, SC Summary, SC, WLRD)
    The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .

Lanoy v The Duke And Dutchess of Athol; 13 Nov 1742

References: [1742] EngR 130, (1742) 2 Atk 444, (1742) 26 ER 668
Links: Commonlii
Coram: Lord Hardwicke LC
There being a borrowing and a lending in the case of a mortgage, the real estate is considered only as a pledge, and the personal liable in the first place ; but this rule has never been carried so far, as to extend it to a provision in a settlement.
Lord Hardwicke LC said: ‘Is it not then the constant equity of this court that if a creditor has two funds, he shall take his satisfaction out of that fund upon which another creditor has no lien . . Suppose a person, who has two real estates, mortgages both to one person, and afterwards only one estate to a second mortgagee, who had no notice of the first; the court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only which is not in mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee, even though the estates descended to two different persons . .’
This case is cited by:

  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Kendall, Ex Parte; 7 May 1811

References: [1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC said: ‘The equity is clear upon the authorities, that, if two funds of the debtor are liable to one creditor, and only one fund to another, the former shall be thrown upon that fund, to which the other cannot resort; in order that he may avail himself of his only security: where that can be done without injustice to the debtor or the creditor: but that principle has never been pressed to the effect of injustice to the common debtor . .’
This case is cited by:

  • See Also – Kendall, Ex Parte (Commonlii, [1813] EngR 348, (1813) 1 Ves & Bea 543, (1813) 35 ER 211 (B))
    . .
  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .

Aldrich v Cooper, Durham v Lankester, Durham v Armstrong; 26 Apr 1803

References: [1803] EngR 542, (1803) 8 Ves Jun 382, (1803) 32 ER 402 (B)
Links: Commonlii
Coram: Lord Eldon LC
Lord Eldon LC discussed the equitable principle of marshalling and said: ‘two estates [were] mortgaged to A; and one of them mortgaged to B. He has no claim under the deed upon the other estate. It may be so constructed that he could not affect that estate after the death of the mortgagor. But it is the ordinary case to say a person having two funds shall not by his election disappoint the party having only one fund; and equity, to satisfy both, will throw him, who has two funds, upon that, which can be affected by him only; to the intent that the only fund, to which the other has access, may remain clear to him.’
This case is cited by:

  • Cited – Serious Organised Crime Agency -v- Szepietowski and Others ChD (Bailii, [2010] EWHC 2570 (Ch), [2010] NPC 101, [2011] Lloyd’s Rep FC 81)
    The court was asked whether, as second mortgagee on the defendant’s properties, the claimant agency had the equitable power of marshalling of prior charges. The first chargee had charges over two properties, and sold the first, satisfying it debt, . .
  • Cited – Szepietowski -v- The National Crime Agency SC (Bailii, [2013] UKSC 65, [2013] 3 WLR 1250, [2014] Lloyd’s Rep FC 1, [2014] 1 BCLC 143, [2014] 1 All ER 225, [2014] 1 AC 338, [2013] WLR(D) 408, Bailii Summary, WLRD, UKSC 2011/0196, SC Summary, SC)
    S owned several propertie in charge to the bank, but the Agency said that each had been acquired with the proceeds of criminal activity. The parties had settled the claim by the grant of a second charge in favour of the Agency. However when that . .