Month: July 2015

Bartsch v Bosch und Siemens Hausgerate (BSH) Altersfursorge GmbH: ECJ 22 May 2008

References: C-427/06, [2008] EUECJ C-427/06_O, [2008] ECR I-7245, [2009] All ER (EC) 113, [2009] 1 CMLR 5, [2008] Pens LR 369
Links: Bailii
Coram: Skouris P
ECJ Scope of Community law – Legal effects of directives before the end of their transposition period – Horizontal application of general principles of Community law – Age discrimination – Article 13 EC Directive 2000/78 Equal treatment in employment and occupation – Survivors’ pensions Justification for differential treatment – Proportionality – Limitation ratione temporis of judgments of the Court.
Statutes: Directive 2000/78 Equal treatment in employment and occupation
This case is cited by:

  • Cited – Age UK, Regina (On the Application of) -v- Attorney General Admn (Bailii, [2009] EWHC 2336 (Admin), Times, [2009] IRLR 1017, [2009] Pens LR 333, [2010] 1 CMLR 21, [2010] ICR 260)
    Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
    Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
  • Cited – Age UK, Regina (On the Application of) -v- Attorney General Admn (Bailii, [2009] EWHC 2336 (Admin), Times, [2009] IRLR 1017, [2009] Pens LR 333, [2010] 1 CMLR 21, [2010] ICR 260)
    Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
    Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .

Sauve v Canada (Chief Electoral Officer); 31 Oct 2002

References: 218 DLR (4th) 577, 168 CCC (3d) 449, 5 CR (6th) 203, 294 NR 1, JE 2002-1974, [2002] SCJ No 66 (QL), 117 ACWS (3d) 553, [2002] ACS no 66, 55 WCB (2d) 21, 98 CRR (2d) 1, [2002] 3 SCR 519, 2002 SCC 68 (CanLII)
Links: Canlii
Coram: McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ.
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Right to vote – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Crown conceding that provision infringes right to vote – Whether infringement justified – Canadian Charter of Rights and Freedoms, ss. 1, 3 – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Constitutional law – Charter of Rights – Equality rights – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision infringes equality rights – Canadian Charter of Rights and Freedoms, s. 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
Elections – Disqualifications of electors – Prisoners – Canada Elections Act provision disqualifying persons imprisoned in correctional institution serving sentences of two years or more from voting in federal elections – Whether provision constitutional – Canadian Charter of Rights and Freedoms, ss. 1, 3, 15(1) – Canada Elections Act, R.S.C. 1985, c. E-2, s. 51(e).
This case is cited by:

  • Cited – Chester, Regina (on The Application of) -v- Secretary of State for Justice SC (Bailii, [2013] UKSC 63, [2014] 1 AC 271, [2014] HRLR 3, [2013] 3 WLR 1076, [2014] 1 All ER 683, [2013] WLR(D) 392, [2014] 1 CMLR 45, 2014 SC (UKSC) 25, 2014 SLT 143, 2013 GWD 34-676, WLRD, Bailii Summary, UKSC 2012/0151, SC Summary, SC)
    The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
    Held: The . .

North River Ins Co v American Home Assurance Co; 15 Mar 1989

References: (1989) 210 Cal App 3d 108
Links: Justia
Coram: Woods (Fred), J, Lillie, P J., and Johnson, J
California Court of Appeals
This case is cited by:

  • Cited – Teal Assurance Company Ltd -v- WR Berkley Insurance (Europe) Ltd SC (Bailii, [2013] UKSC 57, [2014] Lloyd’s Rep IR 56, [2013] WLR(D) 332, [2013] 2 CLC 390, [2013] 4 All ER 643, [2013] BUS LR 109, [2013] 2 All ER (Comm) 1009, WLRD, Bailii Summary, UKSC 2012/0014, SC Smmary, SC)
    An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .

Malnak v Yogi; 2 Feb 1979

Links: Worldlii
Coram: Aldisert, Adams and Hunter, Circuit Judges
United States Court of Appeals – Third Circuit. The court considered whether the programme of teaching transcendental meditation and its associated Science of Creative Intelligence was a religious activity and so was not to be allowed to be taught in state schools.
Held: It was such. Judge Adams, said that religion bore the same meaning in that context as in the free exercise of religion clause of the Constitution, noting that the law had moved towards a broader approach in recognition of the fact that adherence to the traditional definition would deny religious identification to the faiths adhered to by millions of Americans.
Adams J thought that it wa one thing to conclude ‘by analogy’ that a particular group of ideas is religious; it was quite another to explain what indicia are to be looked at in making such an analogy and justifying it. He identified three such indicia.
The first was that the belief system is concerned with the ultimate questions of human existence: the meaning of life and death, mankind’s role in the universe, the proper moral code of right and wrong. The second was that the belief system is comprehensive in the sense that it provides an all-embracing set of beliefs in answer to the ultimate questions. The third was that there were external signs that the belief system was of a group nature which could be analogised to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, and attempts at propagation. These indicia were not to be thought of as a final test for a religion. Rather, they were features which recognised religions would typically exhibit.
This case is cited by:

Davis v Beason, Sheriff; 3 Feb 1890

References: 133 US 333 (1890), 33 L Ed 637, 10 SCt 299
Links: Worldlii
Coram: Field J
United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.
This case is cited by:

United States v Seeger; 8 Mar 1965

References: 380 US 163 (1965)
Links: Wordlii
Coram: Clark J
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces.
This case is cited by:

  • Cited – Welsh -v- United States (398 US 333 (1970), Worldlii, [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308)
    United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’ . .
  • Cited – Hodkin and Another, Regina (on The Application of) -v- Registrar-General of Births, Deaths and Marriages SC (Bailii, [2013] UKSC 77, [2013] WLR(D) 492, [2014] PTSR 1, [2014] 1 AC 610, [2014] 1 All ER 737, [2014] 2 WLR 23, [2014] 1 FCR 577, WLRD, Bailii Summary, UKSC 2013/0030, SC Summary, SC)
    The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .

Welsh v United States; 15 Jun 1970

References: 398 US 333 (1970), [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308
Links: Worldlii
Coram: Black, Douglas, Marshall, Brennan JJ
United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’
This case cites:

  • Cited – United States -v- Seeger (380 US 163 (1965), Wordlii)
    United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .

This case is cited by:

Mussumat Bebee Bachun v Sheikh Hamid Hossein And Mussumat Durjahun; And Mussumat Bebee Bachun, Mussumat Bebee Sogra And Moulvie Abdool Azeez v Sheikh Hamid Hossein And Mussumat Durjahun; 13 Dec 1871

References: [1871] EngR 57, (1871) 14 Moo Ind App 377, (1871) 20 ER 828
Links: Commonlii
A Mohamedan Widow, whose husband died without issue, having been put in possession of her husband’s estate by the Collectorate Courts as a co-heir and for her deferred dower, has a lien, as a Creditor, on the estate, and is entitled to retain possession until her dower is satisfied. 40,000. Held, in the circumstances of the status and means of the deceased Husband, and the custom of Sheikh families in Behar, not an excessive amount for deferred dower.

Regina v Dadshani; 8 Feb 2008

References: 2008 CanLII 4266 (ON SC)
Links: Canlii
Coram: C McKinnon J
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder.
This case cites:

  • Cited – Regina -v- Rowbotham and others ((1988) 41 CCC,(3d) 1)
    Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied . .

This case is cited by:

  • Cited – P, Regina -v- Misc (Bailii, [2008] EW Misc 2 (EWCC))
    Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .

Marper -v United Kingdom; S v United Kingdom: ECHR 27 Feb 2008

References: [2008] ECHR 178, 30562/04
Links: Bailii
Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in ongoing criminal investigations. They are also concerned about the possible future uses of those samples and, in general, that their retention casts suspicion on people who have been acquitted or discharged of crimes. They further contend that, as people without convictions who are no longer suspected criminals, they should be treated in the same way as the rest of the unconvicted population of the United Kingdom. They rely on Articles 8 (right to respect for private life) and 14 (prohibition of discrimination) of the European Convention on Human Rights.
The application was lodged with the European Court of Human Rights on 16 August 2004 and declared admissible on 16 January 2007. The Chamber to which the case was assigned decided to relinquish jurisdiction to the Grand Chamber on 10 July 2007.
This case cites:

This case is cited by:

  • See Also – Marper -v- United Kingdom; S -v- United Kingdom ECHR (30562/04, Bailii, [2008] ECHR 1581, Times, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355)
    (Grand Chamber hearing) The applicants complained that on being arrested on suspicion, samples of their DNA had been taken, but despite being released without charge, the samples had retained on the Police database.
    Held: (Unanimous) The . .

Last Update: 30-Sep-15 Ref: 278518

Kendall, Ex Parte; 25 May 1813

References: [1813] EngR 348, (1813) 1 Ves & Bea 543, (1813) 35 ER 211 (B)
Links: Commonlii
This case cites:

  • See Also – Kendall, Ex Parte (Commonlii, [1811] EngR 268, (1811) 17 Ves Jun 514, (1811) 34 ER 199)
    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 . .

Sir Ralph Bovey v Skipwith; 25 May 1671

References: [1671] EngR 28, (1671) 1 Chan Cas 201, (1671) 22 ER 762 (A)
Links: Commonlii
This case cites:

  • See Also – Sir Ralph Bovey -v- Skipwith (Commonlii, [1671] EngR 9, (1671) 3 Rep Ch 67, (1671) 21 ER 731 (A))
    In 1651, Sir Francis Drake made the Plaintiff a Security out of the Manor and Rectory of Waltham upon Thames. Afterwards in 1656, Drake made the Defendant a Security for Money out of the Rectory only (the Defendant having no Notice then of the . .

Holmes v Bellingham; 24 Jun 1859

References: [1859] EngR 769, (1859) 7 CBNS 329, (1859) 144 ER 843
Links: Commonlii
Coram: Cockburn CJ
In the lower court, the judge had directed the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining property on either side.
Held: That direction was correct. The doctrine of extent ad medium filum is at common law applicable to private roads as well as public roads. The presumption may be rebutted by acts of ownership inconsistent with the result achieved by applying the presumption.
Cockburn CJ said: ‘The same principle which applies in the case of a public road, and which is the foundation of the doctrine, seems to me to apply with equal force to the case of a private road. The presumption is allowed to prevail upon grounds of public convenience, and to prevent disputes as to the precise boundaries of property; and it is based upon the supposition – which may be more or less founded in fact, but which at all events has been adopted, that, when the road was originally formed, the proprietors on either side each contributed a portion of his land for the purpose. I think that is an equally convenient and reasonable principle whether applied to a public or to a private road: but in the latter case it must of course be taken with this qualification that the user of it has been qua road and not in the exercise of a claim of ownership. If the learned judge had told the jury that the presumption was to prevail against evidence of acts of ownership, I should have said that his direction was not correct. But I do not understand that he so put it to them. He merely stated that the same presumption which arises in the case of a public way arose also in the case of a private way. But he went through the evidence as to the acts of ownership upon which the plaintiff relied as rebutting the presumption. I therefore think there is no ground for saying that there has been any substantial misdirection.’
This case is cited by:

  • Applied – Smith -v- Howden ((1863) 14 CB (NS) 398, 2 New Rep 30, 143 ER 500, [1863] EngR 422, Commonlii, (1863) 14 CB NS 398, (1863) 143 ER 500)
    A green lane leading to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, . .
  • Cited – Paton and Another -v- Todd ChD (Bailii, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to, but which was registered to the respondent neighbour.
    Held: The claimant’s . .

Wigginton and Milner Ltd v Winster Engineering Ltd: CA 1978

References: [1978] 1 WLR 1462
Coram: Buckley, Bridge LJJ
The court was asked to construe a conveyance where the plan attached was referred to using the phrase ‘for the purposes of identification only’ and also the phrase ‘more particularly delineated’.
Held: Where in a conveyance of land there is an inconsistency between the verbal description and the plan, the plan must be disregarded.
Buckley LJ said: ‘in so far as the plan does not conflict with the parcels, I can see no reason why, because it is described as being ‘for identification purposes only’ it should not be looked at to assist in understanding the description of the parcels. The process of identification is in fact the process of discovering what land was intended to pass under the conveyance, and that is the precise purpose the plan is said to serve. Accordingly, so long as the plan does not come into conflict with anything which is explicit in the description of the parcels, the fact that it is said to be ‘for the purposes of identification only’ does not appear to me to exclude it from consideration in solving problems which are left undecided by what is explicit in the description of the parcel’.
Bridge LJ said: ‘I cannot think that any of the judicial pronouncements on this subject to which we were referred in argument and which have been cited in the judgment of Buckley LJ were made in contemplation of a case where the boundary shown on a plan ‘for the purposes of identification only’ is the sole means by which the conveyance affords to indicate where that boundary is intended to be drawn. To refer to the plan in such a case in order to ascertain the boundary allows the plan merely to elucidate, not to control, the parcels. The ascertainment of boundaries being an integral part of the process of identifying the land conveyed, I cannot see why, as a matter of language, the qualifying words ‘for the purpose of identification only’ should inhibit the use of the plan for this purpose when no other means is available by which the relevant boundary can be ascertained.’
This case is cited by:

  • Cited – Paton and Another -v- Todd ChD (Bailii, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to, but which was registered to the respondent neighbour.
    Held: The claimant’s . .

Smith v Howden; 20 Apr 1863

References: (1863) 14 CB (NS) 398, 2 New Rep 30, 143 ER 500, [1863] EngR 422, (1863) 14 CB NS 398, (1863) 143 ER 500
Links: Commonlii
A green lane leading to land went between plots owned by the owner and by his neighbour. There was no evidence as to the ownership of the land. The jury were informed that they could assume that the plots on either side owned a moiety of the land, and the plot served by the path owned only an easement.
This case cites:

  • Applied – Holmes -v- Bellingham ([1859] EngR 769, Commonlii, (1859) 7 CBNS 329, (1859) 144 ER 843)
    In the lower court, the judge had directed the jury that there was a presumption, in the case of a private way or occupation road between two properties, that the soil of the road belongs usque ad medium filum viae to the owners of the adjoining . .

This case is cited by:

  • Cited – Paton and Another -v- Todd ChD (Bailii, [2012] EWHC 1248 (Ch))
    The claimants sought leave to appeal against rejection of their request made to the Deputy Adjudicator for the rectification of the title to land they claimed title to, but which was registered to the respondent neighbour.
    Held: The claimant’s . .

Crowhurst And Mary His Wife v Laverack; 20 Nov 1852

References: [1852] EngR 1029, (1852) 8 Exch 208, (1852) 155 ER 1322
Links: Commonlii
Coram: Baron Parke
The father and mother of an illegitimate child entered into an agreement for the maintenance of the child. He was to contribute on the basis that she would otherwise care for the child. The mother later married, and she and the father now sought payment for necessaries for the child.
Held: If the agreement purported to oblige the father to make payments if the mother agreed to support the child, then there was no consideration for the agreement, but if it was her agreement to take sole support of without affiliating the child, there would be good consideration.
This case is cited by:

  • Cited – Ward -v- Byham CA (Bailii, [1956] EWCA Civ 1, [1956] 2 All ER 318, [1956] 1 WLR 496)
    The parties were the parents of an illegitimate daughter. The child lived with the father at first, but the mother requested the child to be returned to her. The father agreed subject to a letter saying: ‘Mildred, I am prepared to let you have Carol . .

Regina v Young And Webber; 22 Sep 1838

References: , [1838] EngR 876, (1838) 8 Car & P 644, (1838) 173 ER 655
Links: Commonlii
Coram: Vaughan J, Alderson B
When, upon a previous arrangement, and after there has been time for the blood to cool, two persons meet with deadly weapons, and one of them is killed, the party who occasions the death is guilty of murder, and the seconds also are equally guilty, and with respect to others shewn to be present, the question is, did they give their aid and assistance by their countenance and encouragement of the principals in the contest? Mere presence will not be sufficien, but if they sustain the principals either by advice or assitance, or go to the ground for the purpose of encouraging and forwarding the unlawful conflict, although they do not say or do anything, yet if they are present, assisting and encouraging by their presence at the moment when the fatal shot is fired, they are, in law, guilty of the crime of murder.
This case is cited by:

  • Cited – Gnango, Regina -v- SC ([2012] 2 All ER 129, [2012] 2 WLR 17, [2012] 1 Cr App R 18, [2012] 1 AC 827, Bailii, [2011] UKSC 59, SC Summary, SC, UKSC 2010/0165, Bailii Summary)
    The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .

Dimes v The Company of Proprietors of The Grand Junction Canal; CExC 1846

References: [1846] EngR 55, (1846) 9 QB 469, (1846) 115 ER 1353, [1846] EngR 1072, (1846) 15 Sim 402, (1846) 60 ER 675
Links: Commonlii, Commonlii
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 form prescribed by the Act, which, notwithstanding some of the lands were copyhold, was adapted to the conveyance of freeholds only. A copyholder used the form and afterwards died without having made any surrender of the tenements comprised in it to the lord of the manor.
Held: The company, being a corporation, was not entitled to be admitted to the tenements, but that they were entitled to have the customary heir of the deceased tenant admitted ; and the Court declared that, on his admittance, he would be a trustee for the company.
This case is cited by:

  • Appeal from – 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 ([1850] EngR 243, Commonlii, (1850) 2 H & Tw 92, (1850) 47 ER 1610, [1849] EngR 682, Commonlii, (1849) 17 Sim 38, (1849) 60 ER 1041)
    The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
  • 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 . .
  • See Also – 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 . .
  • Second Appeal from – Dimes -v- The Proprietors Of The Grand Junction Canal and Others ([1852] EngR 793, Commonlii, (1852) 3 HLC 794, (1852) 10 ER 315)
    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 . .

Button v Button; 11 Jan 1840

References: [1840] EngR 301, (1840) 2 Beav 256, (1840) 48 ER 1178
Links: Commonlii
A testator gave one estate to James, upon trust to pay to testator’s wife £18 a year for life, and after her decease he gave the estate to Thomas. The testator also gave a second estate to James, upon trust to pay testator’s wife £28 a year for life, and after her decease he gave this estate absolutely to James ; and he declared, that if James should neglect or refuse to pay the annuities from either of the said estates when they became due, that his wife should have power of selling the estates, and to appropriate the money to her own use, the rents being insufficient to pay the annuities: Held, that the widow had a right to sell unless James paid the full amount of the annuities, but that he was not personally bound to pay them.

Robert Hull Terrell v James Button; 16 Mar 1854

References: [1854] EngR 361, (1854) 4 HLC 1091, (1854) 10 ER 790
Links: Commonlii
The intention of the 11th and 12th Vict. c. 45 (the Winding Up Act of 1848), was to provide for debts recoverable only in equity, as well as for those recoverable at law ; and the Master has an uncontrolled discretion (subject to appeal) to allow or disallow, or to allow as a claim only, according to the proofs adduced before him, any demand against a Company.
Certain persons proposed to form a company; they employed A. as their solicitor; he was so named, on provisional registration, under the joint Stock Company’s Act; the Directors were not to be personally liable to the officers of the Company ; the solicitor was continuously employed, until after the company had been completely formed and registered, and until it was wound up. The 44th article of the deed of settlement declared, that ‘a sufficient part of the funds of the Company should, upon complete registration, be appropriated in payment of the expenses of and incidental to the formation of the Company, including those of or having reference to the preparation and execution of that deed.’ When the Company was before the Master on the Winding-up Act, the solicitor presented a demand for services from the earliest period up to that time. The Master allowed the demand as a claim only, and not as a debt, leaving the solicitor to proceed at law : Held, reversing an order of Vice Chancellor Kindersley which had permitted the order of the Master to stand, that the Master ought to have allowed this demand as a debt, but subject to proof that the items came under the description contained in the 44th article, and subject also to taxation. As the solicitor had omitted to bring the 44th article to the notice of the Vice Chancellor, his order, though reversed, was reversed without costs.
Statutes: Winding Up Act of 1848

Hogg v Kirby; 15 Mar 1803

References: [1803] EngR 513, (1803) 8 Ves Jun 215, (1803) 32 ER 336 (B)
Links: Commonlii
Coram: Lord Eldon LC
Injunction to restrain publishing a Magazine as a continuation of the Plaintiff’s Magazine in numbers, and as to communications from correspondents, received by the Defendant while publishing for the Plaintiff ; not preventing the publication of an original work of the same nature, and under a similar title. The Plaintiff was proprietor of a work, published in monthly numbers under the title ‘The Wonderful Magazine’.
Held: In assessing damages in a passing off case, the court said, ‘what is the consequence in Law and in Equity? . . a Court of Equity in these cases is not content with an action for damages; for it is nearly impossible to know the extent of the damage; and therefore the remedy here, though not compensating the pecuniary damage except by an account of profits, is the best: the remedy by an injunction and account.’ The reason for the general rule in courts of equity that an injunction would be granted as a matter of course to restrain infringements of property rights was the inadequacy of damages as a remedy.’
This case cites:

  • See Also – Hogg -v- Kirby (Commonlii, [1789] EngR 1227, (1789-1817) 2 Ves Jun Supp 100, (1789) 34 ER 1013 (B))
    . .

This case is cited by:

  • Cited – HM Attorney General -v- Blake (Jonathan Cape Ltd third Party intervening) HL (Gazette 17-Aug-00, Times 03-Aug-00, House of Lords, Bailii, [2000] UKHL 45, [2000] 4 All ER 385, [2000] 3 WLR 625, [2001] 1 AC 268)
    The author had written his book in breach of his duty of confidence. Having signed the Official Secrets Act, he accepted a contractual private law duty. After conviction as a spy, the publication of the book was in breach of the undertaking by not . .
  • Cited – Ludlow Music Inc -v- Williams and others ChD (Bailii, [2000] EWHC 456 (Ch), [2001] EMLR 7, [2001] FSR 19)
    The claimant sought damages for copyright infringement in respect of two works which parodied a song to which they owned the rights.
    Held: The amount copied, being as much as a quarter of the original work, meant that the claim was . .

Jackson v Jackson; 4 Jul 1804

References: (1804) 9 Ves Jr 591, [1804] EngR 302, (1804) 9 Ves Jun 591, (1804) 32 ER 732
Links: Commonlii
Coram: Lord Eldon LC
A testator left his business and land to his two sons jointly to carry on that business after his death. They did so as partners. One issue was whether in doing so they severed the joint tenancy in the land, which was accessory to the business. Lord Eldon LC said that if the father’s will had made clear that the joint tenancy was to survive despite the sons’ dealings with it as partnership property, then the intention of the testator should prevail. As it was, in the absence of such an intention, it was open to the sons to sever the joint tenancy, and they had done so: ‘after transactions for 12 years; shewing that William lived and died in the persuasion, maintained by the acts of the other, that he was entitled to one-half; and after his death the Defendant acting upon the idea; which is the rational inference from the nature of the property and the transactions till his brother’s death; who was, during his whole life, entitled to sever his interest.’
This case is cited by:

McNally and McNally v Customs and Excise; Excs 10 May 2004

References: [2004] UKVAT-Excise E00712
Links: Bailii
EXCISE DUTIES – appellants intercepted carrying goods within minimum indicative limits – history of recent trip – aggregate quantities brought into country substantial – whether review officer’s conclusion that importations commercial reasonable – yes – whether grounds for restoration – no – appeal dismissed

Arch Financial Products Llp and Others v The Financial Conduct Authority; UTTC 19 Jan 2015

References: [2015] UKUT 13 (TCC)
Links: Bailii
UTTC FINANCIAL SERVICES – investment management – management of conflicts of interest – compliance monitoring – separation of decision making within firm acting for different customers – whether property of open ended investment companies managed with the aim of providing a prudent spread of risk as regards liquidity – Principles 2, 3, 8 in respect of alleged breaches by firm and Statements of Principle 6 and 7 in respect of alleged breaches by individual Applicants
Management of conflicts of interest in respect of four specific transactions – whether Applicants acted without integrity – Principle 1 in respect of alleged breaches by firm and Statement of Principle 1 in respect of alleged breaches by individual Applicants Financial penalty and public censure – whether action against individual Applicants prevented by limitation – s66(4), (5) FSMA – appropriate level of penalty – ss66(3), 205 FSMA
Fitness and properness of individuals – withdrawal of approvals – prohibition orders – ss56 and 63 FSMA

The Earl of Lonsdale v Nelson And Others; 14 Nov 1823

References: [1823] EngR 745, (1823) 2 B & C 302, (1823) 107 ER 396
Links: Commonlii
Coram: Best J
Trespass for breaking and entering the plaintiff’s manor. Pleas, first, general issue; second, that from time immemorial there hath been and still is a public port partfy within the said manor, and also in a river which has been a public navigable river from time immemorial, and that there is in that part of the port which is within the manor, an ancient work necessary for the preservation of the port, and for the safety and convenience of the ships resorting to it ; that this work was, at the several times when, &c. in decay; that plaintiff would not repair it, but neglected so to do, wherefore defendants entered and repaired. Replication, de injuria. Verdict for plaintiff on first plea, and for defendants on the second: Held, that plaintiff was entitled to judgment non obstante veredicto, as the second plea did not state that immediate repairs were necessary, or that any one bound to do so had neglected to repair after notice, or that a reasonable time for repairing had elapsed, or that defendants had occasion to use the port.
Best J said: ‘Nuisances by an act of commission are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them, but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them.’
. . And: ‘The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person in whose property the mischief has arisen, to remedy it. In such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of Lord Hale, and appeal to a court of justice.’
This case is cited by:

  • Cited – Lemmon -v- Webb HL ([1895] AC 1, Bailii, [1894] UKHL 1)
    A land-owner was free to lop off boughs from his neighbours trees to the extent that they reached over his land, and he could lop them without going on to the land. He was not required to give notice of his intention to do so. . .
  • Cited – Lagan Navigation Co -v- Lambeg Bleaching, Dyeing and Finishing Co Ltd HL ([1927] AC 226)
    Lord Atkinson stated: ‘It has been well said that the abatement of a nuisance is a remedy which the law does not favour and is not usually advisable, and that its exercise destroys any right of action in respect of the nuisance.’
    Concluding, . .

Vowles v Miller; 9 Jul 1810

References: [1810] 3 Taunt 137, [1810] EngR 416, (1810) 128 ER 54
Links: Commonlii
Coram: Lawrence J
Lawrence J said: ‘The rule about ditching is this. No man, making a ditch, can cut into his neighbour’s soil, but usually he cuts it to the very extremity of his own land: he is of course bound to throw the soil which he digs out, upon his own land; and often, if he likes it, he plants a hedge on the top of it.’
This case is cited by:

  • Cited – The Earl of Craven -v- Pridmore & others CA ([1902] 18 Times LR 282)
    The well established presumption that the boundary of plots of land separated by a hedge and ditch, that the boundary is the hedge on the far side of the ditch is a rebuttable presumption. The question was ‘how far the presumption had been displaced . .
  • Cited – Alan Wibberley Building Ltd -v- Insley CA (Times 24-Nov-97, Gazette 26-Nov-97, Bailii, [1997] EWCA Civ 2698, [1998] 1 WLR 881, [1998] 2 All ER 82)
    Where adjoining fields are separated by a hedge and a ditch, who owns the ditch?
    Held: The old presumption as to the location of a boundary based on the layout of hedges and ditches is irrelevant where the conveyance was by reference to an OS . .
  • Cited – Alan Wibberley Building Ltd -v- Insley HL (Times 30-Apr-99, Gazette 26-May-99, House of Lords, Bailii, [1999] UKHL 15, [1999] 1 WLR 894, [1999] 24 EG 160, [1999] NPC 54, (1999) 78 P & CR D19, (1999) 78 P & CR 327, [1999] EG 66, [1999] 2 EGLR 89, [1999] 2 All ER 897)
    The parties disputed ownership of a strip of land between a garden and a farm. The land was registered.
    Held: The reference to boundaries on an Ordnance Survey plan in a conveyance showing the boundary along the hedge did not displace the . .
  • Cited – Parmar and Others -v- Upton CA (Bailii, [2015] EWCA Civ 795)
    The parties disputed the application of the hedge and ditch rule in settling their boundary. . .

Marper -v United Kingdom; S v United Kingdom: ECHR 16 Jan 2007

References: [2007] EHCR 110, 30562/04
Links: Bailii
Coram: J. Casadevall, P
Decision as to admissibility – the applicants complained of the retention by police of DNA and fingerprint samples and records.
Held: Admissible.
This case cites:

This case is cited by:

  • See Also – Marper -v United Kingdom; S -v- United Kingdom ECHR (Bailii, [2008] ECHR 178, 30562/04)
    Grand Chamber – Press Release – The applicant complained of the retention by the police of DNA and fingerprint records – The applicants both complain about the retention of their fingerprints and DNA samples and the fact that they are being used in . .
  • See Also – Marper -v- United Kingdom; S -v- United Kingdom ECHR (30562/04, Bailii, [2008] ECHR 1581, Times, (2008) 158 NLJ 1755, (2009) 48 EHRR 50, 25 BHRC 557, [2009] Crim LR 355)
    (Grand Chamber hearing) The applicants complained that on being arrested on suspicion, samples of their DNA had been taken, but despite being released without charge, the samples had retained on the Police database.
    Held: (Unanimous) The . .

Last Update: 30-Sep-15 Ref: 278517

Britain Steamship Company Limited v The King and Others (‘The Matiana’): CA 1919

References: [1919] 2 KB 670
Coram: Bailhache J
(Year?) The steamship was insured under a time policy against perils of the sea and stranding, and under further insurance against risks excluded under the first, particularly risks of hostile action. It was in a convoy of four ships zig zagging in the dark under the command of a naval officer to avoid possible torpedos. The court considered whether a merchant ship had been acting when in convoy as a military vessel: ‘sailing in convoy on a chosen route and taking precautionary measures [zig-zagging] necessary because of the presence of hostile submarines had led to the vessel being stranded. It was subsequently torpedoed’.
Held: There was no negligence on the part of the ship’s master or of the naval officer. The loss was not he proximate consequence of warlike operations, and responsibilty fell on the insurers, and not the King.
This case is cited by:

(This list may be incomplete)
Last Update: 19-Jan-16 Ref: 237696

Government of the Republic of Spain v SS ‘Arantzazu Mendi’: HL 1939

References: [1939] AC 256
Coram: Lord Atkin
The House considered the weight to be given to a certificate as to a statement by HM government as to the recognition of the defendant as a sovereign state: ‘Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State Immunities must flow from that decision alone.’
This case is cited by:

Lord Alton of Liverpool and Others v Secretary of Dtate for the Home Department; POAC 30 Nov 2007

References: PC/02/2006
Links: swarb.co.uk, statewatch
Coram: Sir Harry Ognall C, Boswell QC, Catchpole QC
The Mujaheddin-e-Khalq had been proscribed under the 2000 Act by the respondent. It now appealed against such proscription.
Held: The organisation had in the past used terrorist methods, but had repeatedly now renounced the use of violence. The proscription could not be upheld.
Sir Harry Ognall said: ‘We have reached the clear conclusion that the Secretary of State had reasonable grounds for believing that the PMOI was responsible for the attacks listed and, more importantly, to conclude that the PMOI had carried out many attacks over an extended period of time and that the examples set out in Mr Fender’s witness statement demonstrated the range and severity of the terrorist activities in which the PMOI had historically been involved.’ However, there had been a significant change in the MeK’s activities dating from June 2001 onwards, and that the MeK could no longer be said to be concerned with terrorism within the meaning of section 3 of the Terrorism Act.’
Statutes: Terrorism Act 2000 3(3)(b)
This case is cited by:

Regina v Cox; 18 Sep 1992

References: (Unreported), 18 September 1992, Times 02-Dec-1992, [1992] CLY 886
Coram: Ognall J
Whether the questioning of a suspect in a police station amounted to an interview was a question of fact dependant upon all the circumstances, including the rest, arrival at the police station, caution, the notification of rights, and the nature of the questions asked. The defendant doctor administered potassium chloride to a dying patient. The court had to look to the ‘primary purpose’ of his act.
This case is cited by:

  • Cited – Airedale NHS Trust -v- Bland CA (lip, [1993] 2 WLR 316)
    The official Solicitor appealed a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
    Held: The doctors sought permission to act in accordance with recommended . .
  • Cited – Airedale NHS Trust -v- Bland HL (lip, [1993] AC 789, [1993] 2 WLR 316, Bailii, [1992] UKHL 5)
    The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
  • Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA (Times 10-Oct-00, Bailii, [2000] EWCA Civ 254, [2001] 1 FLR 267, [2000] 4 All ER 961, [2001] Fam 147, [2001] 2 WLR 480, [2001] 9 BHRC 261, [2000] 3 FCR 577, [2001] Fam Law 18, (2001) 57 BMLR 1, [2000] Lloyd’s Rep Med 425, [2001] UKHRR 1)
    Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .

Case of the Mavrommatis Palestine Concessions; PICJ 1924

References: (1924) PCIJ Rep Series A, No. 2
(Permanent International Court of Justice) ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.
The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’
This case is cited by:

  • Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
    The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .

Revenue and Customs v McCarthy and Stone (Developments) Ltd and Another; UTTC 10 Jan 2014

References: [2014] STI 626, [2014] STC 973, [2014] BVC 504, [2014] UKUT 196 (TCC)
Links: Bailii
Procedure – Application under Rule 5(3)(a) Tribunal Procedure (Upper Tribunal) Rules 2008 for extension of time to provide notice of appeal to Upper Tribunal under Rule 23(2)(a) – effect of amendments to CPR 3.9 with effect from 1 April 2013 and Mitchell v News Group Newspapers Ltd – application refused

Slack v Tolson; 4 Aug 1826

References: [1826] EngR 1119, (1826) 1 Russ 553, (1826) 38 ER 213
Links: Commonlii
A, having previously borrowed £1000 of B, executes to him a bond for that sum, and B, two days afterwards, executes a deed, whereby he covenants that the bond shall not be enforced: some years afterwards, B having become bankrupt, his assignees bring an action on the bond, and file a bill to have the deed of covenant declared fraudulent. Held, that the Court will not interfere against the legal operation of the deed; there being nothing to shew that B was insolvent when he executed it; and there being evidence, that A. had also at that time pecuniary claims on E, and that the execution of the bond was accompanied by an agreement, that payment of it should not be enforced.

SIB International SRL v Metallgesellschaft Corporation (‘The Noel Bay’): CA 1989

References: [1989] 1 Lloyd’s Rep 361
Coram: Staughton LJ
The Noel Bay was let on a charterparty to carry oil between ports in Europe, with demurrage provisions. The owners treated the charterer’s failure to nominate a port, as a repudiation. The owners found alternative employment for the ship and sought the difference in return as damages and demurrage for 72 hours which they would have earned together with the cost of getting the ship to the new port. They appealed refusal of the award of these additional sums.
Held: The appeal failed. Though they would have earned the demurrage had the contract continued, since it had not been, the proper basis for delay, giving credit for earnings in that period. The cost of getting the ship to the new port (the approach voyage) was part of the cost of the new contract for which the owner had to give credit. Staughton LJ accepted counsel’s submission that the value of the contract which the owners lost ‘must be assessed as at . . the date when repudiation was accepted’ and ‘It is established law that, at any rate if the option has not already been exercised at the date of the breach, the charterer must be assumed to have exercised that option in a way most favourable to himself.’
This case cites:

  • Approved (Megaw LJ) – Maredelanto Compania Naviera SA -v- BergbauHandel GmbH (The Mihalis Angelos) CA ([1971] 1 QB 164, Bailii, [1970] EWCA Civ 4, [1970] 3 WLR 601, [1970] 2 Lloyd’s Rep 43, [1970] 3 All ER 125)
    The parties had agreed a charterparty. The ship was to sail to Haiphong to load a cargo for delivery in Europe. The charterer had a right to cancel if the vessel was not ready on a certain date, but a few days earlier they repudiated the charter. . .

This case is cited by:

  • Cited – Golden Strait Corporation -v- Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL (Bailii, [2007] UKHL 12, Times 30-Mar-07, [2007] 2 Lloyds Rep 164, [2007] Bus LR 997, [2007] 3 All ER 1, [2007] 2 AC 353, [2007] 1 CLC 352, [2007] 2 WLR 691, [2007] 2 All ER (Comm) 97)
    The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .

Capita Financial Group Ltd v Rothwells Ltd; 20 Apr 1989

References: (1989) 15 ACLR 348
Links: NSW
Coram: Rogers CJ
(New South Wales) The parties had guaranteed borrowings of a third party. The plaintiff had paid on call, and now sought a contribution from the defendant. After issue, the defedant began a winding up petition. The plaintiff sought leave to continue the action.
Held: It was a given that a plaintiff in this position must demonstrate a prima facie case. It had not done so here, but an arguable case had been shown, and this could be supplemented later by affidavit evidence. The claim could proceed.
This case is cited by:

Regina v M’Phane, Popham, and Donoghue; 17 Jun 1841

References: [1841] EngR 840, (1841) Car & M 212, (1841) 174 ER 476
Links: Commonlii
Where three persons were indicted jointly for cutting and wounding, and the third of them did not come up to the spot until after one of the first two had got away, and then kicked the prosecutor while he was on the ground struggling with the other, it was held, that the two, who jointly assaulted the prosecutor and wounded him at first, might be found guilty either of the felony or of an assault only, but that the third prisoner must under the circumstances be acquitted altogether.

Underhill v Hernandez; 29 Nov 1897

References: (1897) 168 US 250, [1897] USSC 197, 18 SCt 83, 42 L.Ed. 456
Links: Worldlii
Coram: Fuller CJ
(US Supreme Court) Fuller CJ said: ‘Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.’
This case cites:

  • Applied – Duke of Brunswick -v- The King of Hanover HL ((1848) 2 HL Cas 1, (1844) 6 Beav 1, [1848] EngR 794, Commonlii, (1848) 2 HLC 1, (1848) 9 ER 993)
    The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
    Held: ‘A foreign Sovereign, coming into this country cannot be made . .

This case is cited by:

  • Cited – Regina -v- Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn (Bailii, [1998] EWHC Admin 341, 112 ILR 735)
    The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
    Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
  • Cited – Lucasfilm Ltd and Others -v- Ainsworth and Another SC ([2011] 3 WLR 487, [2011] FSR 41, [2011] Bus LR 1211, Bailii, [2011] UKSC 39, Bailii Summary, SC, SC Summary, UKSC 2010/0015, [2011] 4 All ER 817, [2011] FSR 41, [2012] 1 All ER (Comm) 1011, [2012] 1 AC 208, [2012] EMLR 3,, [2011] ECDR 21)
    The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
  • Cited – Buttes Gas and Oil Co -v- Hammer (No 3) HL ([1982] AC 888, [1981] 3 All ER 616, [1981] 3 WLR 787)
    In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

McGowan v Chief Constable of Kingston Upon Hull; 21 Oct 1967

References: Times 21-Oct-1967
Coram: Parker LCJ, Widgery, O’Connor JJ
The defendant police officers had gone into a house where a child was being held in a man’s arms. The police officers said that they had reason to think that a breach of the peace might occur between the man and his mistress. The question arose as to whether the mistress had authority to give an invitation to the police officers to come in.
Held: Parker LCJ said: ‘Regardless of the invitation, there was sufficient to justify the police entering the house on the basis that they genuinely suspected a danger of breach of the peace occurring.’
This case is cited by:

  • Cited – McLeod, Mealing (deceased) -v- Metropolitan Police Commissioner CA (Ind Summary 21-Feb-94, Bailii, [1994] EWCA Civ 2, [1994] 4 All ER 553)
    The plaintiff appealed against the dismissal of her claims for trespass and breach of duty by the defendant’s officers. In divorce proceedings, she had been ordered to return certain household goods to her husband, but had failed yet to do so. The . .

(This list may be incomplete)
Last Update: 27-Feb-16 Ref: 543044

Syndicat Northcrest v Amselem; 30 Jun 2004

References: (2004) 241 DLR (4th) 1, [2004] 2 SCR 551
Links: Canlii
Coram: McLachlin CJ and Iacobucci, Major, Bastarache, Binnie, Arbour, LeBel, Deschamps and Fish JJ
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs on balconies of their co-owned property — Syndicate of co-owners requesting removal of succahs because declaration of co-ownership prohibits decorations, alterations and constructions on balconies — Whether freedom of religion infringed by declaration of co-ownership — If so, whether refusal to permit setting up of succahs justified by reliance on right to enjoy property and right to personal security — Whether Orthodox Jewish residents waived their right to freedom of religion by signing declaration of co-ownership — Charter of Human Rights and Freedoms, R.S.Q., c. C-12, ss. 1, 3, 6. Constitutional law — Charter of Rights — Freedom of religion — Definition of freedom of religion — Proper approach for freedom of religion analyses — Canadian Charter of Rights and Freedoms, s. 2(a).
The court is concerned to ensure that an assertion of religious belief before it is made in good faith: ‘neither fictitious, nor capricious, and that it is not an artifice’
This case is cited by:

  • Cited – Regina -v- Secretary of State for Education and Employment and others ex parte Williamson and others HL (House of Lords, [2005] UKHL 15, Bailii, Times 25-Feb-05, [2005] 2 WLR 590, [2005] 2 AC 246, [2005] 2 All ER 1, [2005] ELR 291, [2005] 2 FLR 374, [2005] 1 FCR 498)
    The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Bruker v Marcovitz; 14 Dec 2007

References: 288 DLR (4th) 257, [2007] 3 SCR 607, 2007 SCC 54 (CanLII)
Links: Canlii, Canlii
Coram: McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether matter justiciable – Whether agreement satisfies all requirements to make it valid and binding under Quebec law – Whether husband can rely on freedom of religion to avoid legal consequences of failing to comply with agreement – Civil Code of Quebec, S.Q. 1991, c. 64, arts. 1373, 1385, 1412, 1413 – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
Human rights – Freedom of conscience and religion – Agreement with religious aspect – Jewish religious divorce or ‘get’ – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – Action in damages against husband for breach of contract – Whether husband entitled to immunity from damages for his breach of contract by invoking freedom of religion – Charter of human rights and freedoms, R.S.Q., c. C-12, ss. 3, 9.1.
This case is cited by:

  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .

Boukadoura Maritime Corporation v Societe Anonyme Marocaine de L’Industrie et due Raffinage: ‘The BOUKADOURA’: 1989

References: [1989] 1 Lloyd’s Rep.393
Coram: Evans J
A claused bill of lading is one which qualifies the apparent good order and condition of the cargo as described in the bill of lading.
This case is cited by:

  • Cited – Sea Success Maritime Inc -v- African Maritime Carriers Ltd ComC (Bailii, [2005] EWHC 1542 (Comm), Times 06-Sep-05)
    The ship’s master had refused to accept the cargo relying on clause 52 of the standard form charterpraty agreement saying that the cargo had been damaged.
    Held: Only if the shippers continued to insist on the description, and the master . .

Cook v Jones, Reeve, and Benwell; 11 Feb 1812

References: [1812] EngR 114, (1812) 15 East 237, (1812) 104 ER 834
Links: Commonlii
Where an annuity was granted by three, one of whom was known to be only a surety for the other two, to whose use the consideration-money was in fact applied ; yet all three being present when the money was paid down upon the table, and counted over by them all, and the receipt of it sigped by all, it was properly stated in the memorial as a payment made to the three. And though the deed and memorial stated the consideration-money to have been paid by the grantee by the hands of W. his agent, yet as it also appeared by the same instruments that a part of it was the money of a third person ; that was held to be no objection : for either W. was the agent in fact of the sole grantee, or impliedly the agent, through the medium of the grantee, for such third person also, whose interest was stated in the deed and memorial according to the truth. And one stamp as for one annuity is sufficient.
Last Update: 19-Nov-15 Ref: 338600

Liverpool City Council v Attorney General; 15 May 1992

References: Unreported, 15 May 1992, Times 01-May-1992
Land had been given to the local authority ‘for use as a recreation ground and for no other purpose’ The Attorney-General sought to oblige the authority to maintain it as such.
Held: The form of gift was not charitable, and no obligation to maintain it was created. Even if the authority had allowed creation of a charitable trust, only the original donor could enforce that trust, and not the Attorney-General.
This case cites:

  • Applied – Attorney-General -v- Poole ([1938] 1 Ch 23)
    Open space land had been conveyed to Poole Corporation ‘in fee simple to the intent that the same may for ever hereafter be preserved and used as an open space or as a pleasure or recreation ground for the public use.’
    Held: There was no . .

This case is cited by:

Benwell v Inns; 18 Jul 1857

References: [1857] EngR 778, (1857) 24 Beav 307, (1857) 53 ER 376
Links: Commonlii
The servant of a milkman, in C. Street, London, agreed not to carry on the like business within three miles therefrom. Held, that this was not an undue restraint of trade, and the servant was restrained, by injunction, from violating his agreement.
A. agreed to take B. as his servant, ‘at such wages as might from time to time be agreed on,’ and B., on his part, agreed to serve A., and not to set up trade for himself within certain limits. B. accordingly entered into and continued in A.’s service, at wages agreed on. Held, that there was a good and valuable consideration to support the agreement as against B., and the Court enforced it. A milkman, carrying on business in three places, took the Defendant into his service.
The Defendant engaged, as regarded the milkman, his assignees and successors, not to carry on a similar trade within certain limits. A. sold his branch business at one of the three places to the Plaintiff, who retained the Defendant in his service.
Held, that the Plaintiff, as assignee and successor of part of the business, was entitled to the benefit of the Defendant’s contract.
Last Update: 19-Nov-15 Ref: 290524

McCullim and others v Customs and Excise; Excs 7 Feb 2005

References: [2005] UKVAT-Excise E00845
Links: Bailii
Coram: Brice Ch
Excs EXCISE DUTY – refusal to restore excise goods including 18 kilograms of hand rolling tobacco and 24,860 cigarettes imported by the three Appellants – the Appellants claimed that the goods were not liable to forfeiture and proceedings were commenced in the magistrates court – those proceedings had not been heard at the date of the hearing of these appeals – whether the tribunal had jurisdiction to decide whether the goods were held for the personal use of the Appellants – in these appeals no – whether if the tribunal had that jurisdiction the goods were held for the personal use of the Appellants – no – whether the disputed decision was a reasonable decision – yes – appeals dismissed – Council Directive (EEC) No 92/12 Arts 7 to 9; The Excise Goods, Beer and Tobacco Products (Amendment) Regulations 2002 SI 2002 No. 2691; Customs and Excise Management Act 1979 S 152(b); Finance Act 1994 Ss 14 to 16
Last Update: 29-Nov-15 Ref: 271932

Bazley v Curry; 17 Jun 1999

References: (1999) 174 DLR(4th) 45, [1999] 8 WWR 197, 43 CCEL (2d) 1, 62 BCLR (3d) 173
Links: Canlii
Coram: McLachlin J
(Canadian Supreme Court) The court considerd the doctrine of vicarious liability: ‘The policy purposes underlying the imposition of vicarious liability on employers are served only where the wrong is so connected with the employment that it can be said that the employer has introduced the risk of the wrong (and is thereby fairly and usefully charged with its management and minimization). The question is whether there is a connection or nexus between the employment enterprise and that wrong that justifies imposition of vicarious liability on the employer for the wrong, in terms of fair allocation of the consequences of the risk and/or deterrence.’ The court criticised the decision in Trotman, saying: ‘the opinion’s reasoning depends on the level of generality with which the sexual act is described. Instead of describing the act in terms of the employee’s duties of supervising and caring for vulnerable students during a study trip abroad, the Court of Appeal cast it in terms unrelated to those duties. Important legal decisions should not turn on such semantics. As Atiyah points out (Vicarious Liability in the Law of Torts, p 263): ‘conduct can be correctly described at varying levels of generality, and no one description of the ‘act’ on which the servant was engaged is necessarily more correct than any other’.’
This case cites:

This case is cited by:

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Bernard -v- The Attorney General of Jamaica PC (PC, Bailii, [2004] UKPC 47, PC, No. 30 of 2003, [2005] IRLR 398)
    PC (Jamaica) The claimant had been queuing for some time to make an overseas phone call at the Post Office. Eventually his turn came, he picked up the phone and dialled. Suddenly a man intervened, announced . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Cited – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Weddall -v- Barchester Healthcare Ltd CA (Bailii, [2012] EWCA Civ 25)
    Parties appealed against judgments dismissing their claims of vicarious liability as against their employers after assaults by co-employees.
    Held: Appeals were dismissed and allowed according to their facts.
    In one case, one employee . .
  • Cited – The Catholic Child Welfare Society and Others -v- Various Claimants & The Institute of The Brothers of The Christian Schools and Others SC (Bailii, [2012] UKSC 56, Bailii Summary, SC, SC Summary, UKSC 2010/0230, [2012] WLR(D) 335, [2013] 1 All ER 670, [2013] IRLR 219, [2013] PIQR P6, [2013] ELR 1, [2012] 3 WLR 1319, [2013] 2 AC 1)
    Former children at the children’s homes had sought damages for sexual and physical abuse. The court heard arguments as to the vicarious liability of the Society for abuse caused by a parish priest visiting the school. The Court of Appeal had found . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

Regina v McDonald; 23 Apr 2002

References: Unreported 23 April 2002
Coram: Astill J
Woolwich Crown Court. The court was asked to rule on the admissibility of evidence of with telephone calls recorded by external microphones.
Held: The offence under section 1 of the 2002 Act is committed by intercepting a transmission as it is carried in the system and that the system begins at point A, with the start of the transmission of electrical or electromagnetic energy into which the sound waves of the speaker have been converted, and ends at point B, when the energy ceases on being converted into sound waves by the receiver.
Statutes: Regulation of Investigatory Powers Act 2000 1
This case is cited by:

  • Cited – Edmondson and Others -v- Regina CACD (Bailii, [2013] EWCA Crim 1026, [2013] WLR(D) 262, (2013) 177 JP 513, [2014] 1 WLR 1119, [2013] 4 All ER 999, [2013] 2 Cr App R 32, [2013] 3 CMLR 51, WLRD)
    The defendants appealed against convictions for conspiracy to intercept of telephone voicemail messages whilst employed in various positions in newspapers. The issue boiled down to when the ‘course of transmission’ of a voicemail message ended, that . .

Jacobi v Griffiths; 17 Jun 1999

References: (1999) 174 DLR(4th) 71, [1999] 9 WWR 1, 44 CCEL (2d) 169, 63 BCLR (3d) 1
Links: Canlii
(Canadian Supreme Court) The process for determining when a non-authorised act by an employee is so connected to the employer’s enterprise that liability should be imposed involved two steps: 1. Firstly a court should determine whether there are precedents which unambiguously determine on which side of the line between vicarious liability and no liability the case falls. 2. If prior cases do not clearly suggest a solution the next step is to determine whether vicarious liability should be imposed in light of the broader policy rationales behind strict liability. In this case that test was not satisfied.
This case cites:

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

  • Approved – Lister and Others -v- Hesley Hall Ltd HL (Times 10-May-01, Gazette 14-Jun-01, Bailii, House of Lords, [2001] UKHL 22, [2002] 1 AC 215, [2001] 2 All ER 769, [2001] 2 FCR 97, (2001) 3 LGLR 49, [2001] NPC 89, [2001] Fam Law 595, [2001] 2 WLR 1311, [2001] IRLR 472, [2001] ICR 665, [2001] Emp LR 819, [2001] 2 FLR 307, [2001] ELR 422)
    A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
    Held: ‘Vicarious liability is legal . .
  • Cited – Majrowski -v- Guy’s and St Thomas’ NHS Trust CA (Bailii, [2005] EWCA Civ 251, Times 21-Mar-05, [2005] QB 848, [2005] ICR 977, [2005] 2 WLR 1503, [2005] IRLR 340)
    The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
    Held: The appeal succeeded. The . .
  • Cited – Gravil -v- Carroll and Another CA (Bailii, [2008] EWCA Civ 689, Times 22-Jul-08, [2008] ICR 1222, [2008] IRLR 829)
    The claimant was injured by an unlawful punch thrown by the first defendant when they played rugby. He sought damages also against the defendant’s club, and now appealed a finding that they were not vicariously liable. The defendant player’s . .
  • Applied – Maga -v- The Trustees of The Birmingham Archdiocese of The Roman Catholic Church CA (Bailii, [2010] EWCA Civ 256, Times, [2010] PTSR 1618, [2010] 1 WLR 1441)
    The claimant appealed against rejection of his claim for damages after alleging sexual abuse by a catholic priest. The judge had found the church not vicariously liable for the injuries, and that the archdiocese had not been under a duty further to . .
  • Cited – Graham -v- Commercial Bodyworks Ltd CA (Bailii, [2015] EWCA Civ 47, [2015] WLR(D) 50, WLRD)
    The claimant had been very badly burned. He was covered in flammable liquid when a co-worker lit a cigarette.
    Held: The claimant’s appeal failed. ‘although the defendant employers did create a risk by requiring their employees to work with . .

(This list may be incomplete)
Last Update: 14-Dec-15 Ref: 214670

Elliott v Customs and Excise; Excs 7 Feb 2005

References: [2005] UKVAT-Excise E00843
Links: Bailii
Excs EXCISE DUTY – Restoration of Porshe Boxster motor vehicle– whether the 24kg of hand rolling tobacco was for personal or commercial use – commercial use for profit – was the non-restoration proportionate to the Appellant’s contravention – yes – did the non-restoration of the vehicle create exceptional hardship – no – was the decision not to restore the vehicle reasonable – yes – Appeal dismissed.
Last Update: 29-Nov-15 Ref: 271925

Revenue and Customs v Barkas; UTTC 15 Jan 2015

References: [2014] UKUT 558 (TCC)
Links: Bailii
UTTC VALUE ADDED TAX – zero rating – DIY residential conversion scheme – conversion of two commercial buildings on same site into live/work unit consisting of residential building and workshop/office building – whether residential building designed as a dwelling – whether planning permission description of development as live/work unit and/or condition that workshop/office only to be used/operated by occupiers of dwelling prohibited separate use or disposal of dwelling – no – appeal dismissed

Wing v Angrave, Tulley, And Others; 29 Feb 1860

References: [1860] EngR 525, (1860) 8 HLC 183, (1860) 11 ER 397, (1860) 8 HL Cas 183
Links: Commonlii
Coram: Lord Chelmsford
Lord Chelmsford said: ‘Had it occurred to her mind that a highly improbable state of facts might arise, either of their both perishing together or of its being impossible to ascertain which was the survivor, no doubt she would have used apt words to embrace such an extraordinary contingency. Can the language which she has employed be made to include such an intention? If it cannot, then we are not at liberty to go out of the will to bring into it something which is not to be found there. The testatrix says, I give to my husband certain property, and in case he should die in my lifetime, then to the appellant [W. W.]. She clearly intended that the appellant should not have her property if her husband survived her, for on that event it was to go to him. The appellant can only be entitled in case the husband fails to take by survivorship. If the husband survived, the appellant’s bequest never came into existence. But he cannot show that the husband did not survive, and therefore he fails altogether in establishing the foundation upon which alone his right can be built.’
This case is cited by:

Pettman v Keble; 4 Jun 1850

References: [1850] EngR 620, (1850) 9 CB 701, (1850) 137 ER 1067
Links: Commonlii
Coram: Wilde CJ, Maule J
The plaintiff, at the request of the defendant, ordered goods of W & R, telling them the purpose for which they were wanted. Before the order was given the plaintiff asked W & R for a list of prices, and, having obtained it, shewed it to the defendant, who, seeing that the price was such that the order could not possibly have been understood, asked the plaintiff if he thought W & R knew what was wanted ; whereupon the plaintiff said, ‘Oh yes. If anything is wrong, of course you will see me all right.’ To which the defendant answered, ‘Yes, I will bear you harmless.’ In consequence of some misunderstanding, arising in part probably from a verbal innacuracy in the letters conveying the order, the goods suppleid were useless to the defendant, and were returned to the sellers, who (the intrinsic value of the goods being only about 3l) expended in labour about 42l to make them correspond with the intention of the defendant, but, in so doing, reduced their substance so as to render them useless for his purpose. – The defendant, after considerable delay, persisting in his refusal to take the goods, W & R sued the plaintiff, and he (as the jury found, with the implied authority of the defendant) compromised the action by the payment to them of 22l 10s, and afterwards brought an action for money paid against the defendant, to recover that sum : Held, by Wilde, CJ Maule, J, and Talfourd, J, that the action lay. Held, by Cresswell, J., that the plaintiff should have defended the action brought against him by W. & R., and that there was no implied authority from the defendant to compromise it.

Rogers v Whitaker; 19 Nov 1992

References: [1992] HCA 58, (1992) 175 CLR 479
Coram: Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ
High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Hunter v Hanley; 4 Feb 1955

References: [1955] SLT 213, [1955] ScotCS CSIH_2, 1955 SC 200, [1955-95] PNLR 1
Links: Bailii
Coram: Lord President Clyde
The pursuer had been injured when the hypodermic needle being used by the defender doctor broke in use. The pursuer said that the direction by the judge as to accepted practice for the use of such needles.
Held: The court considered the dangers in establishing simple medical standards to judge medical treatments: ‘In the realm of diagnosis and treatment there is ample scope for genuine difference of opinion and one man clearly is not negligent merely because his conclusion differs from that of other professional men . . The true test for establishing negligence in diagnosis or treatment on the part of the doctor is whether he has been proved to be guilty of such failure as no doctor of ordinary skill would be guilty of, if acting with ordinary care.’
This case is cited by:

  • Cited – Penney and Others -v- East Kent Health Authority CA (Times 25-Nov-99, Gazette 08-Dec-99, [2000] PNLR 323, Bailii, [1999] EWCA Civ 3005)
    A cervical smear screener could be liable in negligence if he failed to spot obvious abnormalities in a test result which indicated that further investigation was required. To say this is not to say that such screening tests were expected to achieve . .
  • Adopted – Maynard -v- West Midlands Regional Health Authority HL ([1985] 1 WLR 685, [1985] 1 All ER 635)
    The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

Rosenberg v Percival; 5 Apr 2001

References: 205 CLR 434, 75 ALJR 734, [2001] HCA 18
Links: Austlii
Coram: Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ
Austlii High Court of Australia – Negligence – Breach of duty – Surgeon’s duty to warn of material risk in proposed surgery – Identification of the material risk – Meaning of material risk.
Negligence – Causation – Whether failure to warn of a material risk causative of plaintiff’s injury – Whether patient would not have undergone treatment if warned.
Appeal – Appeal by rehearing – Powers of appellate court – Decision dependent on credibility findings – Authority of appellate court to reach conclusions different from trial judge.
Evidence – Credibility of witnesses – Limits of appellate review in respect of findings of fact based on assessment of the credibility of a witness.
Gummow J said that courts should not be too quick to discard the possibility that a medical practitioner was or ought reasonably to have been aware that the particular patient, if warned of the risk, would be likely to attach significance to it, merely because it emerges that the patient did not ask certain kinds of questions.
This case is cited by:

  • Cited – Montgomery -v- Lanarkshire Health Board SC (Bailii, [2015] UKSC 11, Bailii Summary, UKSC 2013/0136, SC Summary, SC)
    The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inabillity of the shoulders to pass through the pelvis. The consultant considered that a . .

John Charles Brooks v Club Continental; 13 Oct 1981

References: [1981] TRL 126 DC, (1982) 90 ITSA MR 112
Coram: McNeil J
The trading standards officer of the relevant authority and who wished to bring the complaint had been unsure as to the identity of the offender, because he was dealing with a corporate defendant and a number of possible candidates as the proposed defendant. McNeil J considered what was meant by ‘discovery’ in connection with time limits: ‘I think it is sufficient for the purposes of this case, to say that the word ‘discovery’ means no more in this context than all the faxed material to found the relevant charge under the Act were disclosed to the appropriate officer. The word ‘discovery’ here does not import any investigation by the officer. It is simply his knowledge from disclosure to him in some way, of the material facts which would found the offence.’
This case is cited by:

  • Adopted – Tesco Stores Ltd -v- London Borough of Harrow Admn (Bailii, [2003] EWHC 2919 (Admin))
    The court considered at what point the knowledge of the prosecuting authorities became sufficient to begin time running on a prosecution: ‘The question to ask in these circumstances is whether the facts disclosed, objectively considered, would have . .
  • Cited – Donnachie, Regina (on the Application of) -v- Cardiff Magistrates’ Court Admn (Times 22-Aug-07, Bailii, [2007] EWHC 1846 (Admin))
    The defendant appealed refusal of the district judge to state a case on the basis of having no jurisdiction.
    Held: Where the magistrate is acting not as an Examining Magistrate, but is deciding a preliminary issue as to jurisdiction, his . .

Knight Since Deceased And His Executors, Tomkinson v Bowyer etc; 1 Jul 1857

References: [1857] EngR 716 (C), (1857) 23 Beav 609
Links: Commonlii
An annuity was granted free of all taxes ‘ except the property tax,’ and the deed contained a proviso, that in cwe the income tax should be reduced, the reduction should enure to the benefit of the grantor. This proviso was omitted in the memorial.
Held: that the memorial was sufficient.
If a solicitor purchase from his client, and institute a suit against third parties to enforce his right, the objection to the transaction, on the ground of its being a purchase by a solicitor from his client, cannot be maintained by such third parties.

Knight v Bowyer; 1 Aug 1859

References: [1859] EngR 908, (1859) 4 De G & J 619, (1859) 45 ER 241
Links: Commonlii
This case cites:

  • See Also – Knight -v- Bowyer ((1858) 2 De G & J 421, [1858] EngR 673, Commonlii, (1858) 2 De G & J 421, (1858) 44 ER 1053)
    The doctrine of laches and delay did not apply to an express trust, save possibly where there was a release or abandonment by the beneficiary and that was capable of being presumed from the facts of the case. . .

Rex v William Sawyer; 7 Apr 1815

References: [1815] EngR 615, (1815) 2 Car & K 101, (1815) 175 ER 41
Links: Commonlii
Under the stat. 33 Hen. 8, c. 23, a British subject was triable in this country for the murder of another British subject, committed on land within the territory of a foreign independent kingdom. In such a case, the indictment sufficiently shewed the parties to be British subjects, by stating, in the usual manner, that the deceased was in the peace of the king, and concluding against the peace of the king. Such an indictment need not conclude contra formam statuti
This case cites:

  • See Also – Rex -v William Sawyer (Commonlii, [1815] EngR 431, (1815) Russ & Ry 294, (1815) 168 ER 810)
    (Old Bailey) The defendant was a British subject. He murdered another British subject, Harriet Gaskett, in Lisbon. He was found guilty of murder. The point was taken that, as the offence had been committed abroad, the indictment was not framed in a . .

Regina v Serva and nine others; 26 Jul 1845

References: (1846) 2 C & K 53, [1845] EngR 274, (1845) 1 Den 104, (1845) 169 ER 169, [1845] EngR 1168, (1846) 2 Car & K 53, (1845) 175 ER 22
Links: Commonlii, Commonlii
Coram: Lord Ellenborough
The court considered the meaning of the phrase ”against the peace of the King’
Held: The phrase applies to the offender: it relates to his capacity to commit the crime.
This case is cited by:

  • Cited – Regina -v- Page CMAC ([1954] 1 QB 170)
    The defendant, a corporal in the Royal Corps of Signals had been tried and convicted by a Court Martial in Egypt for the murder of an Egyptian national in an Egyptian village. The issue in the appeal was whether a Court Martial had jurisdiction . .
  • Cited – Regina -v- Abu Hamza CACD (Bailii, [2006] EWCA Crim 2918, Times 30-Nov-06, [2007] 2 WLR 226, [2007] 3 All ER 451, [2007] 1 Cr App R 27)
    The defendant had faced trial on terrorist charges. He claimed that delay and the very substantial adverse publicity had made his fair trial impossible, and that it was not an offence for a foreign national to solicit murders to be carried out . .
  • Cited – Regina -v- Adebolajo and Another CACD (Bailii, [2014] EWCA Crim 2779, [2014] WLR(D) 519, WLRD)
    The defendants had been convicted of the brutal and public murder of Fusilier Lee Rigby in London, and sentenced to whole life term for Adebolajo and 45 years for Adebowale. They now sought leave to appeal against conviction and sentence.

IAamp32014: AIT 3 Dec 2014

References: [2014] UKAITUR IA000032014
Links: Bailii
Coram: E B Grant DUTJ
The appellant Secretary of State, had refused to issue a residence card as confirmation of a right of residence under European Community Law as the spouse of an EEA national exercising treaty rights in the United Kingdom. The respondent appealed that decision and his appeal succeeded.

Cullinane v British ‘Rema’ Manufacturing Co Ltd: CA 1954

References: [1954] 1 QB 292
Coram: Lord Evershed MR, Jenkins LJ
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which it is pleaded was not sustainable, in so far as the plaintiff sought to recover both the whole of his original capital loss and also the whole of the profit which he could have made. I think that that is really a self-evident proposition, because a claim for loss of profits could only be founded upon the footing that the capital expenditure had been incurred.’ and
‘In the present case it is plain that to the knowledge of the defendants this machine was required to perform a particular function, and the warranty given shows what the function was that the machine was designed to perform. There is, therefore, no doubt at all that the plaintiff is entitled to rely on [the second limb of the rule in Hadley v Baxendale], and to claim as damages the business loss which must reasonably be supposed to have been, in the contemplation of both parties at the time when they made the contract, the probable result of the breach. In other words, this plaintiff is not confined to the loss which might be called the natural result of having a machine which turned out to be less that the purchase he has paid for it.’
This case is cited by:

  • Cited – Watford Electronics Ltd -v- Sanderson CFL Ltd CA (Gazette 03-May-01, Bailii, [2001] EWCA Civ 317, [2001] 1 All ER (Comm) 696, [2001] BLR 143, [2002] FSR 19, (2001) 3 TCLR 14, [2001] Masons CLR 57)
    The plaintiff had contracted to purchase software from the respondent. The system failed to perform, and the defendant sought to rely upon its exclusion and limitation of liability clauses.
    Held: It is for the party claiming that a contract . .
  • Cited – Astea (Uk) Ltd -v- Time Group Ltd TCC (Bailii, [2003] EWHC 725 (TCC), [2003] All ER (D) 212)
    The question of whether a reasonable time has been exceeded in performance of a contract is ‘a broad consideration, with the benefit of hindsight, and viewed from the time at which one party contends that a reasonable time for performance has been . .
  • Cited – Anglia Television -v- Oliver Reed CA ([1972] 1 QB 60, [1971] 3 All ER 690)
    The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
  • Cited – Anglo Group Plc, Winther Brown & Co Ltd -v- Winter Brown & Co Ltd, BML (Office Computers) Ltd, Anglo Group Plc, BML (Office Computers) Ltd TCC (Bailii, [2000] EWHC Technology 127)
    cs Contract – Contract for provision of computer services – purchaser contract with finance company – duty of co-operation to be implied in computer contracts – practice – responsibilities of expert witnesses . .
  • Cited – East -v- Maurer CA ([1991] 1 WLR 461, Bailii, [1990] EWCA Civ 6, [1991] 2 All ER 733)
    The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to he defendant. They invested to try to make a . .
  • Cited – Parker and Another -v- SJ Berwin & Co and Another QBD (Bailii, [2008] EWHC 3017 (QB))
    The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
  • Cited – Omak Maritime Ltd -v- Mamola Challenger Shipping Co Ltd ComC ([2010] WLR (D) 230, [2010] EWHC 2026 (Comm), Bailii, WLRD)
    The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
  • Cited – Bowlay Logging Limited -v- Domtar Limited ([1978] 4 WWR 105)
    (Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .

Proctor v Bulstrode; 7 Feb 1742

References: [1742] EngR 24, (1742) 2 Coop T Cott 534, (1742) 47 ER 1291 (C)
Links: Commonlii
LORD CHANCELLOR in this case, that where there is a power to grant a rent charge for life, and the rent is given during widowhood, it is a good execution of the power, for it is an estate for life. Like grant of a jointure during widowhood in bar of dower, it is a good jointure by the statute E27 Hen. VIn. c. 101. Power was to grant an annuity of 250 per annum. Grant of one of £40 per annum is a full execution ; and the extent of it could not after be made up by a subsequent execution for the rest, the first being a complete execution.