Month: July 2015

Lumley v Gye (2); 14 Jan 1854

References: [1854] EngR 95, (1854) 3 El & Bl 114, (1854) 118 ER 1083
Links: Commonlii
A commission, under stat. 1 W. 4, c. 22, S. 4, issued at the instance of the defendant, directed to an English barrister, to examine witnesses in Germany. The witness, a Prussian subject, being at Berlin, the commissiotier went thither, but learned that, by the Prussian law, an oath could be administered to a Prussian subject only by a Prussian judge, or some one authorized by a Prussian Court. On the petition of the cornmissioner, a Prussian Court authorized D., a Prussian to administer the oath. On the commission beirig opened, D. insisted on assuming the controul of tbe whole examination, and rejected a question put conformably to the English law, on the ground that it could not be put conformably to the Prussian law. The parties then refused to act further under the commission. The commissioner returned these facts: and application was then made, by tha defendant, for a new commission, to be directed to a Prussiam court or judge, without the clause requiring the commissioner to be sworn. From the affidavit in support of the rule, the above facts appeared ; and it appeared, further, from the opinion of a Prussian lawyer, that the Prussian rules of evidence were different from the English, especilly that examination and cross-examination by counsel was not permitted .
This case cites:

  • See Also – Lumley -v- Gye ((1853) 2 E & B 216, [1853] EngR 15, Commonlii, (1853) 2 El & Bl 216, (1853) 118 ER 749, Bailii, [1853] EWHC QB J73)
    An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .

Honeyman’s Executors v Sharp; scs 14 Mar 1978

References: 1978 SC 223, [1978] ScotCS CSOH_4, 1979 SLT 177
Links: Bailii
Coram: Lord Maxwell
The action concludes for declarator that a purported gift by the deceased to the defender of four valuable paintings by the French artist Boudin falls to be reduced and for certain consequential relief. Though the word ‘undue’ is not used in the pursuers’ pleas-in-law, the action is in substance laid on the principle usually described as ‘undue influence.’

In re P and Q (Children: Care Proceedings: Fact Finding); FC 19 Mar 2015

References: [2015] EWFC 26
Links: Bailiii
Coram: Pauffley J
The mother and her partner had accused many people of the satanic ritual abuse of her children. The children had since retracted their complaints.
Held: The complaints by the children had been prompted and manufactured by the mother’s partner and the mother. None of the allegations, after substantial and careful investigation, were proved true. The mother and her partner had caused immense harm to both the children and the many people they had falsely accused, and had made that damage continuing by the publication, in probable contempt of court, of many details about the case. Those persisting with the allegations were acting either maliciously or foolishly.
Pauffley J summarised her conclusions: ‘Neither child has been sexually abused by any of the following – RD, teachers at CP School H. the parents of students at that school, the priest at the adjacent church, teachers at any of the H or H schools, members of the Metropolitan Police, social workers employed by the London Borough of X, officers of Cafcass or anyone else mentioned by Ms D or Mr C.
The children’s half brother, his father and stepmother – X and Y D – are likewise exonerated of any illicit or abusive acts involving the children.
There was no satanic or other cult at which babies were murdered and children were sexually abused.
All of the material promulgated by Ms Draper now published on the internet is nothing other than utter nonsense.
The children’s false stories came about as the result of relentless emotional and psychological pressure as well as significant physical abuse. Torture is the most accurate way to describe what was done by Mr C in collaboration with Ms D.
Both children were assaulted by Mr C by being hit with a metal spoon on multiple occasions over their head and legs, by being pushed into walls, punched, pinched and kicked. Water was poured over them as they knelt semi-clothed.
The long term emotional and psychological harm of what was done to the children is incalculable. The impact of the internet campaign is likely to have the most devastating consequences for P and Q.’
This case cites:

  • Cited – In In Re T (Abuse: Standard of Proof) CA (Bailii, [2004] EWCA Civ 558, [2004] 2 FLR 838, [2004] Fam Law 709)
    Dame Elizabeth Butler-Sloss P said that in abuse cases, evidence: ‘cannot be evaluated in separate compartments. A judge in these difficult cases has to have regard to the relevance of each piece of evidence to other evidence and to exercise an . .
  • Cited – In re B (Children) (Care Proceedings: Standard of Proof) (CAFCASS intervening) HL (Bailii, [2008] UKHL 35, [2008] 2 FLR 141, HL, [2009] 1 AC 11, [2008] 3 WLR 1, [2008] Fam Law 837, [2008] 2 FCR 339, [2008] Fam Law 619, [2008] 4 All ER 1)
    There had been cross allegations of abuse within the family, and concerns by the authorities for the children. The judge had been unable to decide whether the child had been shown to be ‘likely to suffer significant harm’ as a consequence. Having . .
  • Cited – In re W (Children) (Family proceedings: Evidence) (Abuse: Oral Evidence) SC (Bailii, [2010] UKSC 12, SC, UKSC 2010/0031, SC Summ, Times, [2010] Fam Law 449, [2010] 2 All ER 418, [2010] 1 FLR 1485, [2010] PTSR 775, [2010] 1 FCR 615, [2010] 1 WLR 701, Bailii Summary)
    The court considered the approach to be taken when considering whether to order a child’s attendance at court in care proceedings. It was argued that the starting point of assuming that a child should not attend, failed to respect the human right to . .

City of Edinburgh Council v Decision of Scottish Ministers andC: SCS 24 May 2001

References: [2001] ScotCS 121, 2001 SC 957
Links: Bailii, ScotC
The reporter’s decision that a licensed restaurant constituted ‘similar licensed premises’ to a public house, within the meaning of a policy, was vitiated by her misunderstanding of the policy: the context was one in which a distinction was drawn between public houses, wine bars and the like, on the one hand, and restaurants, on the other.
This case is cited by:

  • Cited – Tesco Stores Ltd -v- Dundee City Council SC (Bailii, [2012] UKSC 13, UKSC 2011/0079, SC Summary, SC, Bailii Summary, [2012] PTSR 983, [2012] 13 EG 91, 2012 GWD 12-235)
    The company challenged the grant of planning permission for a competitor to open a new supermarket within 800 metres of its own, saying that the Council had failed to apply its own planning policies, which required preference of suitable sites not . .

Garvin Trustees Ltd v The Pensions Regulator; UTTC 17 Nov 2014

References: [2014] UKUT B8 (TCC)
Links: Bailii
UTTC PENSIONS REGULATOR – contribution notices – procedure – disclosure whether Applicant obliged to maintain legal professional privilege over documents passed to him by liquidator of sponsoring employer – no because employer dissolved – whether documents concerned not privileged as falling within the iniquity principle – no – disclosure permitted

Canada Inc Swift Trade Inc and Peter Beck v Financial Services Authority; UTTC 23 Jan 2013

References: [2013] UKUT B2 (TCC)
Links: Bailii
UTTC MARKET ABUSE – share price manipulation – whether demonstrate- yes – FSMA s 118 – whether entering into contracts for difference knowing counterparty would hedge by placing orders for stocks amounts to behaviour ‘in relation to’ qualifying investments – yes- whether open to FSA to take action against dissolved Canadian corporation regulated in Canada and with no place of business in United Kingdom – yes- scale of penalty- reference dismissed.
Statutes: Financial Services and Markets Act 2000 118

In the Estate of Fuld, dec’d (No 3): ChD 1968

References: [1968] 1 P 675
Coram: Scarman J
The onus of proof on the balance of probabilities as to whether the Will was duly executed and whether the Deceased knew and approved the contents of the Will is upon the Defendant. The legal requirement upon the Defendant to establish these facts is a safeguard in will cases against fraud upon the dead. The weight of the burden will vary with the weight of the suspicion to be dispelled; but in a matter as vital as this the law wears no cramping straight jacket. The Court’s vigilance is called whenever circumstances reasonably excite suspicion.
Scarman J said: ‘when all is dark, it is dangerous for a court to claim that it can see the light.’
This case is cited by:

  • Cited – Fuller -v- Strum CA ([2002] WTLR 199, Times 22-Jan-02, Gazette 14-Feb-02, Bailii, [2001] EWCA Civ 1879, [2002] 2 All ER 87, [2002] 1 WLR 1087)
    The appellant challenged a finding that only part of a will was valid. The part made a gift to his son, ‘albeit very grudgingly’, saying ‘I hate him like poison, that Irish bastard.’
    Held: The onus on the propounder of a will to show that it . .
  • Cited – Sherrington -v- Sherrington ChD ([2004] EWHC 1613 (Ch), Bailii)
    The deceased had divorced and remarried. His children challenged the will made after his second marriage.
    Held: There was cogent evidence that the will was not properly executed and that the will went against his wishes as expressed to others. . .
  • Cited – Gill -v- Woodall and Others ChD (Bailii, [2009] EWHC B34 (Ch), [2009] EWHC 834 (Ch))
    The claimant challenged her late mother’s will which had left the entire estate to a charity. She asserted lack of knowledge and approval and coercion, and also an estoppel. The will included a note explaining that no gift had been made because she . .
  • Cited – Gill -v- Woodall and Others CA (Bailii, [2010] EWCA Civ 1430, [2010] NPC 126, [2011] 3 WLR 85, [2011] WTLR 251, [2011] Ch 380)
    The court considered the authorities as to the capacity to make a will, and gave detailed guidance.
    Held: As a matter of common sense and authority, the fact that a will has been properly executed, after being prepared by a solicitor and read . .

Horne Engineering v Reliance Water Controls; 10 Jun 1999

References: [2000] FSR 90
Coram: Pumfrey J
cw Action for infringement of European patent relating to thermostatic mixing valve.
This case is cited by:

  • Applied – McGhan Medical Uk Ltd -v- Nagor Ltd and Biosil Ltd PatC (Bailii, [2001] EWHC Patents 452)
    The claimants had a patent for breast (and other) implants, the surface of which was claimed to be an improvement. They claimed infringement, and the defendant challenged the validity of the patent as lacking novelty, obviousness, and that . .

The ‘Messiniaki Tolmi’: 1981

References: [1981] 2 Lloyds Rep 595
Coram: Brandon LJ
While the general rule is that a Court will not hear an application for his own benefit by a person in contempt unless and until he has first purged his contempt, there is an established exception to that general rule where the purpose of the application is to appeal against, or have set aside, on whatever ground or grounds, the very order disobedience of which has put the person concerned in contempt.
This case is cited by:

  • Cited – Motorola Credit Corporation -v- Uzan and others (No 2) CA (Bailii, [2003] EWCA Civ 752, Times 19-Jun-03, Gazette 28-Aug-03, [2004] 1 WLR 113)
    World-wide freezing orders had been made under the 1982 Act. The defendants were members of a Turkish family with substantial business interests in the telecommunications industry. In breach of orders made in the US some defendants had sought to . .

Coedo Suarez v Council; EUCST 26 Mar 2015

References: F-38/14, [2015] EUECJ F-38/14
Links: Bailii
ECJ Judgment – Public service – Officials – Disciplinary proceedings – Disciplinary measure – Removal with reduced disability allowance – Proportionality of the penalty – Manifest error of assessment – Driving Concept of the official throughout his career – Compliance schedules work

The ‘Spontaneity’: 1962

References: [1962] 1 Lloyd’s Rep 460
Where the negligence of vessel X caused vessel Y to run aground, vessel X was not liable for such damages as were attributable to the subsequent, clearly separate and negligent re-floating of vessel Y. The original negligence of vessel X had ceased to be operative.
This case is cited by:

  • Cited – Borealis Ab -v- Geogas Trading Sa ComC (Bailii, [2010] EWHC 2789 (Comm), [2011] 1 Lloyd’s Rep 482)
    The parties had contracted for sale and purchase of butane for processing. It was said to have been contaminated. The parties now disputed the effect on damages for breach including on causation, remoteness, mitigation and quantum.
    Held: The . .

(This list may be incomplete)
Last Update: 28-Feb-16 Ref: 425892

Sreemanchunder Dey v Gopaulchunder Chuckerbutty, Doorgapersaud Dey, Russickloll Dey, And Prosonomoye Dossee; 14 Nov 1866

References: [1866] EngR 190, (1866) 11 Moo Ind App 28, (1866) 20 ER 11
Links: Commonlii
(Fort William, Bengal) A. purchased a Talook at a sale, in execution of a decree obtained by a judgment-creditor. The Assignee of another judgment-creditor, who had obtained a decree in a separate suit against the estate, brought a suit against the purchaser to set aside the sale, on the ground that the purchase was not bona fide, being made in collusion with the judgment-debtors. Held, on a review of the evidence, that there was not sufficient evidence to warrant the decree of the High Court at Calcutta that it was a benamee transaction ; or that the purchaser was acting as an Agent for the judgment-debtors; and the decree of the Court below reversed [11 Moo. Ind. App. 49]. Held further, that the onus probandi was on the Plaintiff to establish the affirmative issue that the money for the purchase of the Talook was supplied by the judgment-debtors, or a third party for them, and not by the purchaser. Evidence showing circumstances which may create suspicion is not enough to justify the Court making a decree resting on suspicion only.
On an appeal to the High Court, that Court, acting under the power conferred by section 355 of the Code of Civil Procedure, Act, No. VIII. of 1859, ex mera motu, called for and examined fresh witnesses. Held that such power should be cautiously exercised, and the reasons for exercising it recorded or minuted by the High Court on the proceedings;as, first, the witnesses may be such as the parties to the suit do not wish to call ; and, secondly, thc new evidence may not be sufiiciently extensive to satisfy the ends of justice.

Grampian Regional Council v Secretary of State for Scotland; CS 1983

References: 1984 SC 1 13, (1983) 47 P & CR 540
Coram: Lord Dunpark
The Regional Council appealed against the Secretary of State’s decision to issue positive certificates. Lord Dunpark said: ‘Counsel for all parties agreed that the grantor of the certificate must disregard the proposal to acquire. The issue between the appellants and the respondents is whether or not the purpose or reasons for the acquisition must also be disregarded for certificate purposes. On the one hand, it is said that it is nonsense to grant a certificate for development for which the grantor knows planning permission would not be granted. On the other hand, it is said that, as this is a hypothetical, not a practical, exercise, if one has to disregard the proposal to acquire, one must also disregard the purpose of the acquisition.’ and ‘It seems to me to follow from the fact that the value of the land is not to be affected by the prospect of compulsory acquisition that its value is not to be affected by the development proposed by the acquiring authority. One cannot discount the one without the other.’
This case is cited by:

Bank Voor Handel En Scheepvaart NV v Slatford: 1953

References: [1953] 1 QB 248
Coram: Devlin J
A Dutch bank deposited a quantity of gold in London before the start of the 1939-1945 war. In May 1940 the Netherlands were invaded and they became an enemy territory for the purposes of the 1939 Act. The Royal Netherlands Government, with the approval of the UK Government, exercised their powers from London and in May 1940 they issued a decree which purported to have the effect of transferring property, including the gold, to the Netherlands Government (the A.1 decree). In July 1940, the Board of Trade made a vesting order transferring the gold to the Custodian of Enemy Property. He sold it for £2 million. In May 1950 the Netherlands Government made an order returning the property in the gold to the Bank. The Bank then claimed against the Custodian in conversion for the present value of the gold. Devlin J held that the A.1 decree was ineffective to transfer moveable property in this country.
Held: ‘I think it is convenient to begin by considering what is the general principle of our law with regard to foreign legislation affecting property within our territory. There is little doubt that it is the lex situs which as a general rule governs the transfer of movables when effected contractually. The maxim mobilia sequuntur personam is the exception rather than the rule, and is probably to be confined to certain special classes of general assignments such as marriage settlements and devolutions on death and bankruptcy. Upon this basis the A.1 decree, not being a part of English law, would not transfer the property in this case. But decrees of this character have received in the authorities rather different treatment. Although there is not, as far as I am aware, any authority which distinguishes general legislation, such as part of a civil code, from ad hoc decrees, the effectiveness of such decrees does not appear on the authorities to be determined exclusively by the application of the lex situs. Apart from two recent cases on which the plaintiffs greatly rely, there has been no case in which such a decree has been enforced in this country, but the grounds for refusing effect to them have been variously put. Sometimes it is said that the decree is confiscatory. In the textbooks it is said sometimes that as a matter of public international law no State ought to seek to exercise sovereignty over property outside its own territory, and therefore the principle of comity is against enforcement; and sometimes it is said that the principle of effectiveness is against enforcement, since no State can expect to make its laws effective in the territory of another State. Dicey, Conflict of Laws, 6th ed., p. 13, states: ‘A State’s authority, in the eyes of other States and the courts that represent them, is, speaking very generally, coincident with, and limited by, its power. It is territorial. It may legislate for, and give judgments affecting, things and persons within its territory. It has no authority to legislate for, or adjudicate upon, things or persons not within its territory.’
Statutes: Trading With The Enemy Act 1939
This case is cited by:

Trapeza Eurobank Ergasias -V- Agrotiki Trapeza tis Ellados AE: ECJ 16 Apr 2015

References: C-690/13, [2015] EUECJ C-690/13, ECLI:EU:C:2015:235
Links: Bailii
Coram: K. Jurimae, P
ECJ Judgment – Reference for a preliminary ruling – State aid – Meaning – Article 87(1) EC – Privileges granted to a bank – Company exercising public service obligations – Existing aid and new aid – Article 88(3) EC – Powers of the national court
Statutes: EC Treaty 87(1)

Fordyce v Sir Henry Bridges, Catherine Elizabeth Mary Reid, Madeline Curling, Jane Curling, Isabella Curling, Agnes Catherine Thomson, Mary Louisa Thomson, Emily Harriet Thomson, Gertrude Eliza Thomson, Florence Jessie Thomson, And Jo; 15 Mar 1848

References: [1848] EngR 347 (C), (1847-1848) 2 Coop T Cott 325
Links: Commonlii
If all the heirs of a Scotch entail were necessary parties to a suit in this Court, touching matters in which they are interested as such heirs of entail, the suit could not proceed, not only on account of their number, but because future heirs of entail coming into esse would not be bound by any proceedings in it, as their claim is not through any persons parties to the suit.
As you cannot have, in any shape, before the Court all the heirs of entail whom you seek to bind, it would be idle to prove that some are out of the jurisdiction.
When, to avoid a failure of justice in the Court from the peculiar nature of the interest under a Scotch entail, it shall become necessary to decide the point [as to making all the heirs of a Scotch entail parties to a suit], some rule must be laid down, for which there is no precedent.
Not possible to dispute the proposition, that the heir of a Scotch entail is not bound by the proceedings in a suit to which he was no parly, he claiming under the entail, and not deriving title through anyone, a party to the suit, and having a direct interest in the subject of that suit in his own right, though not in possession.
Although the heir is not bound by the proceedings in such suit, he cannot have a decree in his own suit, unless he can shew that he was injured by the former decree, or has interests inconsistent with its directions.

Hamlin v Great Northern Railway Co; 19 Nov 1856

References: (1856) 1 H & N 408, [1856] EngR 918, (1856) 156 ER 1261
Links: Commonlii
Coram: Pollock CB
A plaintiff can recover whatever damages naturally resulted from the breach of contract, but damages cannot be given ‘for the disappointment of mind occasioned by the breach of contract.’
This case is cited by:

  • Not Followed – Jarvis -v- Swans Tours Ltd CA (lip, [1973] 1 All ER 71, [1972] 3 WLR 954, [1973] QB 233, Bailii, [1972] EWCA Civ 8)
    The plaintiff had booked a holiday through the defendant travel tour company. He claimed damages after the holiday failed to live up to expectations.
    Held: In appropriate cases where one party contracts to provide entertainment and enjoyment, . .

Richard Thompson v Regina: CACD 26 Mar 2004

References: [2004] EWCA Crim 669, Times 16-Apr-2004
Links: Bailii
Coram: Lord Justice Thomas
The defendant had been convicted of offences of possessing a large number of indecent images of children.
Held: In such cases, the prosecution should frame the charges following the classification in R v Oliver, with a small number of representative charges out of each category with a comprehensive charge for the balance. The defence should be given adequate time and facilities to check the classifications. It should be clear whether it was alleged that any image was a true or a pseudo image. In this case, and allowing for the mitigation available, the sentence was too long.
Statutes: Criminal Justice Act 1988 160(1) 160(2A)
This case cites:

  • Cited – Regina -v- Oliver etc CACD (Times 06-Dec-02, [2002] EWCA Crim 2766, [2003] 2 Cr App R (S) 15, Bailii)
    The defendants appealed their sentences for possession and distribution of indecent images of children. The court gave detailed sentencing guidelines for the offences. Distinctions were made for the gradations of pornography, from erotic posing . .

‘Geitling’ Ruhrkohlen-Verkaufsgesellschaft mbH, ‘Mausegatt’ Ruhrkohlen-Verkaufsgesellschaft mbH ‘Prasident’ Ruhrkohlen-Verkaufsgesellschaft mbH and associated companies v High Authority of the European Coal and Steel Community: ECJ 12 Feb 1960

References: C-16/59, [1960] EUECJ C-16/59
Links: Bailii
ECJ The grounds of a decision limited to stressing the objectives to be attained by the high authority to ensure compliance with the treaty but expressly refraining from laying down precise rules which will have to be settled in the future, do not constitute a decision but simply a notice not binding the high authority in the future and not excluding the possibility of its changing its view. Where a decision contains no provisions having legal effects of a legislative or individual nature but is simply an internal measure taken by the High Authority, the applicant cannot be adversely affected. The claims of the applicant for the annulment of a decision which has not been ‘revoked with retroactive effect’ but simply ‘revoked’ are valid in respect of the period between the entry into force of the decision and its revocation; they have not ‘lost their purpose’; but if the applicant subsequently states to the court that he considers them to have done so, this statement is in the nature of a withdrawal of claim. If the wording of the grounds of a decision wrongly gives the impression that a definite view has already been taken and accordingly that there is a true decision justifying an action being brought and unreasonably causing costs to be incurred, the costs are to be borne in part by the defendant.

Clayton v Heffron; 17 Oct 1960

References: (1960) 105 CLR 214
Links: Austilii
Coram: Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ
(High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.
This case is cited by:

  • Cited – Regina on the Application of Jackson and others -v- HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and others -v- Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

Boyse v Rossborough; 7 Nov 1854

References: [1854] EngR 853, (1854) 1 K & J 124, (1854) 69 ER 396
Links: Commonlii
A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court.
The right of the heir and that of a devisee to this issue, distinguished ; the former is absolute, the latter is in the discretion of the Court.
Issue devisavit vel non granted to a devisee after a decree in Ireland against the will and an order refusing a new trial ; and although subsequently an attesting witness, who had been examined in Ireland, and whose cross-examination was deposed to have been very effective in support of the heirs’ case, had died ; the devisee having appealed to the House of Lords, and not appearing to be chargeable with delay, either in the appeal or in this suit.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .

This case is cited by:

  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Young v White; 2 Dec 1853

References: [1853] EngR 1051, (1853) 17 Beav 532, (1853) 51 ER 1141
Links: Commonlii
To a bill for the infringement of a patent, the Defendant pleaded that the Plaintiff was not the first inventor. Held, that the Defendant need not answer any fact alleged by the bill, which would not be evidence to go to a jury on such an issue. As, for instance, the accuracy of the specification ; the novelty of the process ; the assignment af the patent ; the expenditure of money on it ; the obtaining Scotch and Irish patents for the process or allegations as to the opinions of third parties as to the invention, and the truth of the assertions of third parties respecting it, &c, &c.
On a motion for an injunction to restrain the alleged infringement of a patent, the Defendant insisted, first, on the invalidity of the patent; and, secondly, that he had not infringed it, and an action was directed. Afterwards, the Defendant pleaded in equity simply the want of novelty of the patent. This Court, on allowing the plea, gave the Plaintiff’ liberty to apply to modify the order made on the application for the injunction, so as to make it conformable to the issue tendered by the plea.

Batra v The Financial Conduct Authority; UTTC 13 May 2014

References: [2014] UKUT 214 (TCC)
Links: Bailii
UTTC FINANCIAL SERVICES – withdrawal of approval and prohibition of approved person – whether Applicant made false and misleading representations in mortgage applications – yes – whether Applicant failed to deal with the Authority in open and co-operative manner – yes – whether Applicant dishonest – no – whether Applicant lacked integrity – yes – whether Applicant fit and proper person – no – prohibition from carrying out any function confirmed – reference dismissed

ABC v PM and Another; FC 5 Mar 2015

References: [2015] EWFC 32
Links: Bailii
Coram: Moor J
The parties were involved in substantial ancillary relief disputes. W now complained that H had charged his only asset within the jurisdiction, the house in which she lived, to secure his legal fees. She had already asserted a claim against it within the proceedings. The Court had already found that H had failed to disclose substantial offshore assets. H now appealed against an order stting the charge aside.
Statutes: Matrimonial Causes Act 1973
This case cites:

  • Cited – Robinson -v- Robinson (Practice Note) CA ([1982] 2 WLR 146, [1983] Fam 52)
    The husband was a serving soldier who had had various postings abroad. The wife returned home, where she discovered that she was pregnant. He followed her home, but she left him, and applied for maintenance. The justices found that she had deserted . .
  • Cited – Kemmis -v- Kemmis (Welland and Others Intervening) CA ([1988] 1 WLR 1307, [1988] 2 FLR 223)
    H had mortgaged the matrimonial home to release funds to support his lifestyle. The bank knew about the family circumstances and the mortgage was set aside at first instance. W applied to have the charge set aside.
    Held: The application . .
  • Cited – Kremen -v- Agrest FD (Bailii, [2010] EWHC 2571 (Fam), [2011] 2 FLR 478, [2011] Fam Law 567)
    Application as to payment of funds held where the payer was a fugitive from justice, owing sums in maintenance to the claimant. W applied for an order setting aside a charge granted by H over property. In previous hearing the court had found that H . .

Orascom Telecom Holding SAE v Republic of Chad and others; Comc 28 Jul 2008

References: [2008] EWHC 1841 (Comm), [2008] 2 Lloyds Rep 396, [2009] 1 All ER (Comm) 315
Links: Bailii
Coram: Burton J
Final application for a third party debt order.
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Boyse v Rossborough; 5 Dec 1853

References: [1853] EngR 1056, (1853) Kay 71, (1853) 69 ER 31
Links: Commonlii
A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee.
Previously to the Statute of Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Brandy, 7 Bro. P. C. 437, But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate was by a trial at law, the Court of Chancery reserving the power to deal with the case as justice might require.
The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding
term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir at law is so bound that a perpetual injunction wouid be granted against him if, after such decree, he should attempt to impeach the will.
The origin of this jurisdiction is obscure ; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir ; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.
Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.
But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.
An averment in such a bill that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.
That the legal estate has been conveyed by the Plaintiff to his own trustee since then this cause came on to be heard upon a general demurrer for want of equity.
This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 252, Commonlii, (1854) 3 De G M & G 817, (1854) 43 ER 321)
    A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the . .
  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Boyse v Rossborough; 11 Feb 1854

References: [1854] EngR 252, (1854) 3 De G M & G 817, (1854) 43 ER 321
Links: Commonlii
Coram: Lord Carnworth LC
A mere legal devisee may file a bill against the heir at law of the testator for the purpose of having the will established against him, though no trustess are declared by the will, and though it is not necessary to administer the estate under the direction or decree of a court of Equity.
This case cites:

  • See Also – Boyse -v- Rossborough ([1853] EngR 1056, Commonlii, (1853) Kay 71, (1853) 69 ER 31)
    A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the purpose of establishing the will against the testator’s heir at law, although the heir has brought no action of ejectment against the devisee. . .

This case is cited by:

  • See Also – Boyse -v- Rossborough ([1854] EngR 853, Commonlii, (1854) 1 K & J 124, (1854) 69 ER 396)
    A decree of the Court of Chancery in Ireland, after verdict upon an issue devisavit vel non, does not determine the validity or invalidity of the will, so far as it relates to lands in England, and cannot be pleaded in bar to a suit in this Court. . .
  • See Also – Boyse -v- Rossborough HL ([1857] 6 HLC 2, [1857] EngR 299, Commonlii, (1857) 5 HLC 1, (1857) 10 ER 1192)
    In order to set aside the will of a person of sound mind, it is not sufficient to show that the circumstances attending its execution are consistent with hypothesis of its having been obtained by undue influence. It must be shown that they are . .

Robertson And Another, Assignees of Milburn, Hallowell, And Walmlsey, Bankrupts, v Sir Thos Henry Liddell, Bart; 28 May 1808

References: [1808] EngR 211, (1808) 9 East 487, (1808) 103 ER 659
Links: Commonlii
The departure of a trader from his dwellinghouse, with intent to delay his creditors, is an act of bankruptcy, though no creditor be thereby in fact delayed. And the words in the stat. 1 Jac 1 e15 s2 following this and other acts of bankruptcy committed, viz. ‘to the intent or whereby his creditors shall or may be defeated or delayed,” &e. are to be read ‘to the intent his creditors shall, or whereby, (or that thereby) they may be defeated,’ &e. But the lying in prison six months upon an arrest is made a substantive act of bankruptcy independent of any intent of the trader. So in the case of an act of bankruptcy by the trader’s beginning to keep house, the denial of a creditor is usually given in evidence, not to shew the fact of the creditor’s being, delayed, but as evidence to explain the equivocal act of the trader’s keeping in his house, and to shew that he began to keep house with intent to delay his creditors.

East Coast Amusement v British Transport Board; Re Wonderland” Cleethorps: HL 1965″

References: [1965] AC 58
Coram: Viscount Simonds
Under the section, the benefit of improvements would only be obtained by the tenant if carried out during the current tenancy. Viscount Simonds said: ‘If there is any ambiguity about the extent of (the) derogation (by a statute from common law rights), the principle is clear that it is to be resolved in favour of maintaining common law rights unless they are clearly taken away.’
Statutes: Landlord and Tenant Act 1954 34
This case is cited by:

  • Cited – Hughes -v- Borodex Ltd Admn (Bailii, [2009] EWHC 565 (Admin))
    The tenant under a long lease appealed against a rent assessment which increased the amount payable to a level where she lost her security of tenure. She said that 17 year old improvements she had made should not have been taken into account.
  • Cited – Hughes -v- Borodex Ltd CA (Bailii, [2010] EWCA Civ 425, Times, [2010] WLR (D) 106, WLRD, [2010] 29 EG 88, [2010] 18 EG 99)
    The court considered the determination of a new rent on the conversion of a long tenancy protected under Part I of the 1954 Act to an assured periodic tenancy under the 1988 Act. The tenant had carried out improvements which she now wanted to be . .

Khan Tandoori v HMRC FTC/78/2011; UTTC 16 Jul 2012

References: [2012] UKUT 224 (TCC)
Links: Bailii
UTTC Value Added Tax – whether assessments made in time – yes – whether First-tier Tribunal gave adequate reasons why it found that assessments made in time – yes – whether First-tier Tribunal erred in upholding centrally issued assessments showing trading below compulsory registration threshold – no – appeal dismissed

Finelvet AG v Vinava Shipping Co Ltd (The Chrysalis”): 1983″

References: [1983] 1 WLR 1469, [1983] 1 Lloyds Rep 503
Coram: Mustill J
The Chrysalis was trapped in the Shatt-al-Arab waterway in the course of the Iran-Iraq war, and the parties disputed the frustration of the charter contract.
Held: Mustill J set out stages for considering an appeal from an arbitration award by differentiating between points of law and of fact: ‘Starting therefore with the proposition that the court is concerned to decide, on the hearing of the appeal, whether the award can be shown to be wrong in law, how is this question to be tackled? In a case such as the present, the answer is to be found by dividing the arbitrator’s process of reasoning into three stages:
(1) The arbitrator ascertains the facts. This process includes the making of findings on any facts which are in dispute.
(2) The arbitrator ascertains the law. This process comprises not only the identification of all material rules of statute and common law, but also the identification and interpretation of the relevant parts of the contract, and the identification of those facts which must be taken into account when the decision is reached.
(3) In the light of the facts and the law so ascertained, the arbitrator reaches his decision.
In some cases, the third stage will be purely mechanical. Once the law is correctly ascertained, the decision follows inevitably from the application of it to the facts found. In other instances, however, the third stage involves an element of judgment on the part of the arbitrator. There is no uniquely ‘right’ answer to be derived from marrying the facts and the law, merely a choice of answers, none of which can be described as wrong.’
Only items at stage 2 are properly appealable: ‘The second stage of the process is the proper subject matter of an appeal under the 1979 Act. In some cases an error of law can be demonstrated by studying the way in which the arbitrator has stated the law in his reasons. It is, however, also possible to infer an error of law in those cases where a correct application of the law to the facts found would lead inevitably to one answer, whereas the arbitrator has arrived at another: and this can be so even if the arbitrator has stated the law in his reasons in a manner which appears to be correct – for the Court is then driven to assume that he did not properly understand the principles which he had stated.
Whether the third stage can ever be the proper subject of an appeal, in those cases where the making of the decision does not follow automatically from the ascertainment of the facts and the law, is not a matter upon which it is necessary to express a view in the present case. The Nema and The Evia show that where the issue is one of commercial frustration, the Court will not intervene, save only to the extent that it will have to form its own view, in order to see whether the arbitrator’s decision is out of conformity with the only correct answer or (as the case may be) lies outside the range of correct answers. This is part of the process of investigating whether the arbitrator has gone wrong at the second stage. But once the Court has concluded that a tribunal which correctly understood the law could have arrived at the same answer as the one reached by the arbitrator, the fact that the individual judge himself would have come to a different conclusion is no ground for disturbing the award.’
Statutes: Arbitration Act 1979 1(3)
This case is cited by:

  • Cited – Penwith District Council -v- VP Developments Ltd TCC (Bailii, [2007] EWHC 2544 (TCC))
    The council sought to appeal against an interim arbitration award.
    Held: Leave to appeal was refused. The application was wholly unjustified. This was an appeal on the facts dressed up as an appeal on law. . .
  • Cited – Guangzhou Dockyards Co Ltd -v- Ene Aegiali I ComC (Bailii, [2010] EWHC 2826 (Comm))
    The defendant ship owners sought to strike out the claimant’s appeal against an arbitration award to the extent that that appeal consisted of an appeal against the factual findings. The claimant argued that the parties had agreed that such an appeal . .

Delahaye v Oswestry Borough Council; 29 Jul 1980

References: Times 29-Jul-1980
Coram: Woolf J
The applicant had made more than one application for emergency housing and temporary accomodation pending the result of her application.
Held: It could not have been the intention of Parliament that a similar statute should be used by someone, who is not entitled to permanent accommodation to obtain the continuous use of temporary accommodation by means of successive applications.
This case is cited by:

  • Cited – Griffin, Regina (on the Application of) -v- London Borough of Southwark Admn (Bailii, [2004] EWHC 2463 (Admin), Times 03-Jan-05)
    The applicant had sought emergency housing with her husband, but refused accomodation on a particuar estate for her safety. She had then been evicted form the temporary housing supplied on the application. After a series of temporary arrangements . .
  • Cited – Regina -v- Harrow London Borough Council Ex Parte Fahia HL (Times 24-Jul-98, Gazette 16-Sep-98, House of Lords, Bailii, [1998] UKHL 29, [1998] 1 WLR 1396)
    The local authority submitted first that a person making a second application for emergency housing had to demonstrate a change of circumstance which might lead to a second application being successful and second that it was for the local authority . .

Re AB; FC 28 May 2015

References: [2015] EWFC B58
Links: Bailii
Coram: Pemberton HHJ
Two applications in relation to AB who was born in 2013 and is 2 years old. He is the son of ZX (the father) and ZA (the mother). The mother, supported by the father, has made an application to discharge the care order that AB is subject to. The LA has applied for a placement order for AB.

JA (Meaning of Access Rights”): UTIAC 17 Apr 2015″

References: [2015] UKUT 225 (IAC)
Links: Bailii
Coram: Clive Lane UTJ
UTIAC 1. Where the Immigration Rules are silent as to interpretation, it may be necessary to refer to the Children Act 1989 (as amended) and other family legislation in order to construe those parts of the Rules which provide a route to entry clearance or leave to remain as a parent.
2. ‘Access’ in the latest version of the Immigration Rules means the same as ‘contact’ in the previous paragraph 284A. Neither term is now used in the Family Court where Child Arrangements Orders are made to regulate ‘(a) with whom a child is to live, spend time or otherwise have contact; and (b) where a child is to live, spend time or otherwise have contact with any person.’
3. The expression ‘access rights’ in paragraph E-LTRPT.2.4 (a) (i) may refer equally to parents who have ‘indirect’ access to a child by means of letters, telephone calls etc as well as to those who spend time with a child (‘direct’ access). A parent may also have ‘access rights’ where there is no court order at all, for example, where parents agree access arrangements (the ‘no order’ principle; section 1(5) of the Children Act 1989 (as amended)).
4. Having satisfied the requirements of paragraph E-LTRPT.2.4 (a) (i), an appellant must still prove that he/she ‘is taking and intend to continue to take an active role in the child’s upbringing'(paragraph E-LTRPT.2.4 (a) (ii)). Whether he/she will be able to do so will depend upon the evidence rather than the nature of the ‘access rights.’ However, it is likely to be unusual that a person having only ‘indirect’ access rights will be able to satisfy this provision. In some cases, Tribunals may need to examine the reasons why the Family Court has ordered ‘indirect’ rather then ‘direct’ access.

A.R.P.L. Palaniappa Chettiar v P.L.A.R. Arunasalam Chettiar: PC 31 Jan 1962

References: [1962] UKPC 1a
Links: Bailii
Coram: Lord Denning, Lord Devlin, LND de Silva
(Malaya)
This case cites:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

This case is cited by:

  • See Also – Chettiar -v- Chettiar PC ([1962] AC 294, Bailii, [1962] UKPC 1, Bailii, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238)
    (Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact . .

Bragner v Joseph Langmead; 15 Nov 1796

References: [1796] EngR 2497, (1796) 7 TR 20, (1796) 101 ER 834
Links: Commonlii
A judgment signed in any part of the term or the subsequent vacation relates back to the first day of the term, notwithstanding the death of the defendant before judgment actually signed ; and an execution against the goods of the defendant may be taken out upon it, tested the first day of the term.

Rex v Grady And Curley; 2 Dec 1836

References: [1836] EngR 1128, (1836) 7 Car & P 650, (1836) 173 ER 284 (C)
Links: Commonlii
Coram: Lord Denman CJ
Though he may not, in legal strictness be bound to take down more than is material to prove the felony, yet since the passing of the Prisoner’s Counsel Bill, giving prisoners the right to a copy of the depositions against them, the magistrate ought to return all that was said by the witnesses with respect to the charge, as the object of the Legislature was to enable prisoners to know what they have to answer on their trial.

Regina v Stingel; HCA 1990

References: (1990) 171 CLR 312
(Australia) An infatuated man had stabbed his former girlfriend’s lover.
Held: The judge had been right to withdraw the issue of provocation from the jury. Jealousy and possessiveness should not found a defence of provocation.
This case is cited by:

  • Cited – Regina -v- Smith (Morgan James) HL (Times 04-Aug-00, House of Lords, Gazette 28-Sep-00, House of Lords, Bailii, [2000] UKHL 49, [2001] 1 AC 146, [2001] 1 Cr App R 31, [2000] 4 All ER 289, [2000] 3 WLR 654)
    The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
    Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
  • Cited – Weller, David Regina -v- CACD (Bailii, [2003] EWCA Crim 815, [2003] Crim LR 724)
    The defendant appealed against his conviction for murder, saying that provocation should have been found. The issue was whether or not, in the course of his summing-up, the trial judge should have left, and if so whether he had left, to the jury the . .

Ex Parte Garrett and Clark v The Mayor of Newcastle; 30 Jan 1832

References: [1832] EngR 421, (1832) 3 B & Ad 252, (1832) 110 ER 95
Links: Commonlii
In the absence of any precedent, the Court refused a rule nisi for a mandamus calling on the mayor of a town to propose a resolution to the burgesses in guild assembled, for repealing certain by-laws ; though it was alleged that by-laws and ordinances might, by charter, be made, and had formerly been made, at such guilds.

Island Holdings Ltd v Birchington Engineering Co Ltd; 7 Jul 1981

References: Unreported, 7 July 1981
Coram: Goulding J
Two prospectively separate purchasers in a later ‘subject to contract’ arrangement between them had replaced their earlier concluded agreement as to how a property, if acquired, would be dealt with.
Held: Effect was to be given to the agreement by way of constructive trust, not to the ‘subject to contract’ arrangement but simply to the notion that the two parties should be obliged to share.
This case is cited by:

  • Cited – Banner Homes Group Plc -v- Luff Developments and Another CA (Gazette 10-Feb-00, Times 17-Feb-00, Bailii, [2000] EWCA Civ 18, [2002] 2 All ER 117, Bailii, [2000] EWCA Civ 3016, [2000] 2 WLR 772, [2000] Ch 372)
    Competing building companies agreed not to bid against each other for the purchase of land. One proceeded and the other asserted that the land was then held on trust for the two parties as a joint venture.
    Held: Although there was no formal . .
  • Cited – Gonthier and Another -v- Orange Contract Scaffolding Ltd CA (Bailii, [2003] EWCA Civ 873)
    The question of a proprietary estoppel as between landlord and tenant arose. An agreement had been reached subject to contract for the grant of a lease, with an option to purchase. The tenant was allowed into possession before the documentation was . .
  • Cited – Thames Cruises Limited -v- George Wheeler Launches Limited, Kingwood Launches Limited ChD (Bailii, [2003] EWHC 3093 (Ch))
    The parties had previously worked to gether to provide ferry services on the Thames. A new tender to operate the services was not submitted. It was alleged that the Defendants had inequitably seized for themselves a business opportunity which the . .

(This list may be incomplete)
Last Update: 03-Mar-16 Ref: 188287

Perfect And Others v Musgrave; 10 Nov 1818

References: [1818] EngR 676, (1818) 6 Price 111, (1818) 146 ER 757
Links: Commonlii
One of two drawers of a joint promissory note, payable twelve months after date, who is surety for the other to the amount, is not discharged by the drawee not having demanded paymenit from the surety wheri due, nor till after having entered into a deed of composition with the principal and his other creditors, and received the compositiori money.

Watson v Mary Foxon; 13 Nov 1801

References: [1801] EngR 456, (1801) 2 East 36, (1801) 102 ER 281
Links: Commonlii
Under a limitation (after estates for life to A. and B.) of ‘all and every the said premises to all and every the younger children of 3. begotten or to be begotten, if more than one equally to be divided amongst them, and to the heirs of their respective body and bodies as tenants in common, &c. and if only one child, then to such only child and to the heirs of his or her body issuing; and for want of such issue’ (‘devise of) ‘the said premises to C. N. &c.” (with several limitations over). ” And for want of such issue,’ then testator divided the said premises between several branches of his family. Held that cross remainders were to be implied between the younger children of B. from the apparent intention of the testator from the whole of the will, notwithstanding the use of the word respective in such devise.

Southampton Cargo Handling Plc v Lotus Cars Limited and others Associated British Ports (the Rigoletto”): CA 31 Jul 2000″

References: [2000] EWCA Civ 252, [2000] 2 Lloyd’s Rep 532
Links: Bailii
Coram: Rix LJ
This case is cited by:

A Meredith Jones and Co Ltd v Vangemar Shipping Co Ltd (The Apostolis”): CA 11 Jul 2000″

References: [2000] EWCA Civ 213, [2000] 2 Lloyd’s Rep 337, [2000] CLC 1488
Links: Bailii
Coram: Waller LJ,
The proper construction of a contractual clause must not consider that clause in isolation, but must consider the clause in the context of the contract as a whole.
This case cites:

This case is cited by:

Arthur Sidney Petter; Monica Mary Harris v Secretary of State for Environment, Transport and Regions and Chichester District Council: CA 15 Mar 1999

References: [1999] EWCA Civ 975, (2000) 79 P and CR 214
Links: Bailii
Coram: Nourse LJ, Buxton LJ, Sedley LJ
This case cites:

This case is cited by:

Eric Michael Garston; Alan Kilsha Toulson; Paul Denzil Nicholas and Charles Edward Cameron Gardner v Scottish Widows Fund and Life Assurance Society: CA 25 Jun 1998

References: [1998] EWCA Civ 1091
Links: Bailii
The lease demised property ‘from the 24th day of June 1985 for a term of twenty years’ with a break clause requiring six month’s notice. The break notice was calculated from the anniversary of the lease, not the anniversary of the term. At first instance, the lease was held not to have been validly terminated.
Held: The notice would have been read as indicating a desire to break the lease on the effective date, and the error did not operate to defeat it. One of the main purposes of Part II of the 1954 Act is to enable business tenants, where there is no good reason for their eviction, to continue in occupation after the expiration of their contractual tenancies. It is not a purpose of the Act to enable a business tenant who has chosen to determine his contractual tenancy to continue in occupation on terms different from those of that tenancy.
Statutes: Landlord and Tenant Act 1954 26(2)
This case cites:

  • Appeal from – Garston -v- Scottish Widows’ Fund and Life Assurance Society ChD ([1996] 1 WLR 834, [1996] 4 All ER 282)
    A lease allowed a break clause to be exercised on six month’s notice. The notice given was calculated by reference to the wrong date, the date of the lease, and not the term contained in it.
    Held: The mistake was not sufficiently clear to . .
  • Cited – Mannai Investment Co Ltd -v- Eagle Star Assurance HL (Times 26-May-97, House of Lords, Bailii, [1997] 2 WLR 945, [1997] UKHL 19, [1997] AC 749, [1997] 3 All ER 352, [1997] 24 EG 122)
    Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
  • Cited – Commercial Properties Ltd -v- Wood CA ([1968] 1 QB 15, [1967] 2 All ER 916, [1967] 3 WLR 185, 111 Sol Jo 275)
    A lease of commercial premises continued automatically under the Act. It became a monthly tenancy with rent payable in advance at the beginning of each mointh. The landlord served a notice under s25 on 4 October 1965 to terminate the tenancy on . .