Month: July 2015

Crawford v Springfield Steel Co Ltd; 18 Jul 1958

References: Unreported 18 July 1958
Coram: Lord Cameron
The pursuer, a steelworker, had been diagnosed with pneumoconiosis. He had worked for a previous company, and had claimed damages from them
Held: In an exceptional case such as this, a judgment may not conclusively decide the full measure of damage for which B is liable to A, a sum agreed to be paid under a compromise may or may not represent the full measure of B’s liability to A.
This case is cited by:

  • Cited – Heaton and Others -v- AXA Equity and Law Life Assurance Society plc and Another HL (House of Lords, Times 15-May-02, Bailii, [2002] UKHL 15, [2002] CPLR 475, [2002] CP Rep 52, [2003] 1 CLC 37, [2002] 2 AC 329, [2002] 2 WLR 1081, [2002] 2 All ER 961)
    The claimant had settled one claim in full and final satisfaction against one party, but then sought further damages from the defendant, for issues related to a second but linked contract. The defendant claimed the benefit of the settlement.

Fjord Seafood Norway And Alsaker Fjordbruk v Council; 22 Sep 2009

References: [2012] EUECJ T-113/06, T-113/06
Links: Bailii
Partial removal from the register
This case is cited by:

JP Morgan Chase Bank and others v Springwell Navigation Corporation; Comc 27 May 2008

References: [2008] EWHC 1186 (Comm)
Links: Bailii
Coram: Gloster J
Gloster J said: ‘terms which simply define the basis upon which services will be rendered and confirm the basis upon which parties are transacting business are not subject to section 2 of UCTA. Otherwise, every contract which contains contractual terms defining the extent of each party’s obligations would have to satisfy the requirement of reasonableness.’
Statutes: Unfair Contract Terms Act 1977
This case cites:

This case is cited by:

Rex v The Church Trustees of St Pancras; 26 Jan 1837

References: , [1837] EngR 445, (1837) 6 Ad & E 314, (1837) 112 ER 119
Links: Commonlii
Trustees appointed under a local Act for building a new parish church, with power to make rates for that purpose and for discharging debts to be incurred under the Act, are liable to account before parochial auditors appointed under the Vestry Act, 1 &, 2 W. 4, c. 60, as a board having control over part of the parochial expenditure; though the local Act requires such trustees to keep an account of the assessments, receipts and payments under the Act, to be examined and allowed once a year at Quarter Sessions ; and though, by the same Act, their accounts are open to inspection (on payment of 1s.) by any person liable to the above rates. A mandamus calling on such trustees to produce before the auditors ‘the accounts’ (without limit as to time) kept by them under the local Act, and requiririg the clerk to the trustees to produce the books of account which may concern the above accounts, is bad, as exceeding the authority given by stat. 1 &, 2 W. 4, c. 60, ss. 34, 35, although such mandamus begin by reciting a demand made by the auditors upon the trustees in terms conformable to the Act, and a refusal to comply with such demand. When the validity of a return to a mandamus is argued on a concilium, the party impugning the return must begin, although the opposite party states that he shall object to the form of the mandamus.

ISC Technologies Limited v Radcliffe; 7 Dec 1990

References: Unreported, December 7, 1990
Coram: Millett J
It was alleged that a Mr Guerin had committed a fraud on the arms manufacturer Ferrari.
Held: The constructive trust provision in RSC Order 11, r 1(1)(t) applied only if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to a knowing receipt abroad of the proceeds of such fraud. The rules allowing service out of the jurisdiction where the defendant’s alleged liability arose ‘out of acts committed, whether by him or otherwise, within the jurisdiction’ only applied if all the acts necessary to impose liability were committed in England, and that accordingly it applied to knowing participation by acts in a fraudulent breach of trust committed in England, but not to knowing receipt abroad of the proceeds of such a fraud.
Statutes: Rules of the Supreme Court Order 11 r1(1)(t)
This case is cited by:

  • Cited – Islamic Republic of Pakistan -v- Zardari and others ComC (Bailii, [2006] EWHC 2411 (Comm))
    The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .

(This list may be incomplete)
Last Update: 16-Dec-15 Ref: 245213

Cuckson v Stones; 1 Nov 1859

References: [1859] EngR 924, (1859) 1 El & El 247, (1859) 120 ER 902
Links: Commonlii
This case is cited by:

  • Cited – Societe Generale, London Branch -v- Geys SC (Bailii, [2012] UKSC 63, [2012] WLR(D) 394, [2013] 2 WLR 50, Bailii Summary, UKSC 2011/0110, SC Summary, SC)
    The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .

Watson v McEwan: HL 1905

References: [1905] AC 480
Coram: Earl of Halsbury LC
Privilege is given to those making witness statements in court proceedings from subsequent actions for defamation.
The Earl of Halsbury said: ‘It appears to me that the privilege which surrounds the evidence actually given in a Court of justice necessarily involves the same privilege in the case of making a statement to a solicitor and other persons who are engaged in the conduct of proceedings in Courts of justice when what is intended to be stated in a Court of justice is narrated to them – that is, to the solicitor or writer to the Signet. If it were otherwise, I think what one of the learned counsel has with great cogency pointed out would apply – that from time to time in these various efforts which have been made to make actual witnesses responsible in the shape of an action against them for the evidence they have given, the difficulty in the way of those who were bringing the action would have been removed at once by saying, ‘I do not bring the action against you for what you said in the witness-box, but I bring the action against you for what you told the solicitor you were about to say in the witness-box.’ If that could be done the object for which the privilege exists is gone, because then no witness could be called; no one would know whether what he was going to say was relevant to the question in debate between the parties. A witness would only have to say, ‘I shall not tell you anything; I may have an action brought against me to-morrow if I do; therefore I shall not give you any information at all.’ It is very obvious that the public policy which renders the protection of witnesses necessary for the administration of justice must as a necessary consequence involve that which is a step towards and is part of the administration of justice – namely, the preliminary examination of witnesses to find out what they can prove. It may be that to some extent it seems to impose a hardship, but after all the hardship is not to be compared with that which would arise if it were impossible to administer justice, because people would be afraid to give their testimony.’
This case is cited by:

  • Cited – Buckley -v- Dalziel QBD (Bailii, [2007] EWHC 1025 (QB), Times 07-Jun-07)
    There was a heated dispute between neighbours, culminating in some generous or perhaps over-generous pruning by the claimant of the defendant’s trees and shrubs on the boundaries. The defendants reported the matter to the police. Both Mr and Mrs . .
  • Cited – Westcott -v- Westcott QBD (Bailii, [2007] EWHC 2501 (QB))
    The claimant said that his daughter in law had defamed him. She answered that the publication was protected by absolute privilege. She had complained to the police that he had hit her and her infant son.
    Held: ‘the process of taking a witness . .
  • Cited – Lincoln -v- Daniels CA ([1962] 1 QB 237, [1961] 3 WLR 866, [1961] 3 All ER 740, (1961) 105 Sol Jo 647)
    The defendant claimed absolute immunity in respect of communications sent by him to the Bar Council alleging professional misconduct by the plaintiff, a Queen’s Counsel.
    Held: Initial communications sent to the secretary of the Bar Council . .
  • Cited – Iqbal -v- Mansoor and Others QBD (Bailii, [2011] EWHC 2261 (QB))
    The claimant sought the disapplication of the limitation period in order to pursue the defendant solicitors, his former employers, in defamation. . .

McDonald v Dennys Lascelles Ltd; 1 Mar 1933

References: (1933) 48 CLR 457
Links: Austlii
Coram: Dixon J
(High Court of Australia) ‘When a party to a simple contract, upon breach by the other contracting party of a condition of the contract, elects to treat the contract as no longer binding upon him, the contract is not rescinded as from the beginning. Both parties are discharged from the further performance of the contract, but rights are not divested or discharged which have already been unconditionally acquired. Rights and obligations which arise from the partial execution of the contract and causes of action which have accrued from its breach alike continue unaffected.’
This case is cited by:

  • 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 . .
  • Approved – Hyundai Heavy Industries Co Ltd -v- Papadopoulos HL ([1980] 1 WLR 1129, [1980] 2 All ER 29, [1980] 2 Lloyds Rep 1)
    A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .
  • Restated – Bank of Boston Connecticut -v- European Grain and Shipping Ltd (‘The Dominique’) HL ([1989] AC 1056)
    A shipping company and a shipper responsible for the freight disputed the effect of their contract. The ship was duly loaded with its cargo and set out for the voyage from India to Europe. The bills of lading were signed. When the ship called at . .
  • Cited – Hyundai Heavy Industries Co Ltd -v- Papadopoulos HL ([1980] 1 WLR 1129, [1980] 2 All ER 29, [1980] 2 Lloyds Rep 1)
    A shipbuilding contract provided that the second instalment of the contract price should be payable on a day certain. It gave the builders the right to rescind the contract in the event of non-payment. The buyers failed to pay the second instalment, . .

Wilkins v Aikin; 4 Aug 1810

References: [1810] EngR 465, (1810) 17 Ves Jun 422, (1810) 34 ER 163
Links: Commonlii
The defendant was said to have copied works of the plaintiff. The court considered the defence of fair use.
This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

In Re Mansergh; 11 Jun 1861

References: [1861] EngR 711, (1861) 1 B & S 400, (1861) 121 ER 764
Links: Commonlii
Jurisdiction of Queen’s bench over tribunals abroad. Court martial. Military status.-I. This Court has no jurisdiction over tribunals out of the realm of England, although in countries subject to the British Crown. 2. Where the civil rights of a person in military service are affected by the judgment of a military tribunal, in which that tribunal has acted without jurisdiction, or has exceeded its jurisdiction, this Court will interfere; aliter where nothing but the military status of the party is affected by the judgmeat.-3. A. Captain in the Queen’s service, when stationed with his regiment in india, was gazetted to a majority ; and the appointment was notified in the general orders of the Commander-in-chief in India at head quarters, and in the regimental orders.

Legg v Goldwire; 10 Nov 1736

References: [1736] EngR 81, (1736) Cas T Talbot 20, (1736) 25 ER 637
Links: Commonlii
Coram: Talbot LC
By Lord Chancellor Talbot – Where articles are entered into before marriage, and a settlement is made after marriage different from those articles (as if by articles the estate was to be in strict settlement, and by the settlement the husband is made tenant in tail whereby he hath it in his power to bar the issue), this Court will set up the articles against the settlement; but where both articles and settlement are previous to the marriage, at a time when all parties are at liberty, the settlement differing from the articles will be taken as a new agreement between them and shall control the articles. And although, in the case of West v Errissey . . afterwards in the House of Lords, in 1727, the articles were made to control the settlement made before marriage, yet that resolution no way contradicts the general rule; for in that case the settlement was expressly mentioned to be made in pursuance and performance of the said marriage articles, whereby the intent appeared to be still the same as it was at the making of the articles.

Regina v Ludlam et al; 11 Oct 2011

References: Unreported, 11 Oct 2011
Coram: HHJ Head
HHJ Head said: that ‘merely acting in ways which would otherwise be lawful but which constitute a breach of an Restraint Order cannot amount to the necessary ingredients of Perverting’.
Statutes: Criminal Justice Act 1988 77
This case is cited by:

  • Distinguished – Kenny -v- Regina CACD (Bailii, [2013] EWCA Crim 1)
    The appellant had made a loan to a third party defendant in criminal fraud proceedings. At the time he did not know that that third party was subject to a restraint order under the 2002 Act. When he did come to know of the order he was asked to say . .

The Attorney General v Price; 26 Nov 1810

References: [1810] EngR 575, (1810) 17 Ves Jun 371, (1810) 34 ER 143
Links: Commonlii
Devise to A and his heirs; with a direction, that yearly he and his heirs shall for ever divide and distribute according to his and their discretion amongst the testator’s poor kinsmen and kinswomen, and amongst their offspring and issue dwelling within the County of B. £20 by the year. This is in the nature of a charitable bequest ; and, the Will being made in 1581, was sustained; and inquiries directed as to the poor relations dwelling within the county of B.
This case is cited by:

  • Cited – Scarisbrick’s Will Trusts, In re ChD ([1950] 1 All ER 143, [1950] Ch 226)
    The court considered whether a trust was charitable.
    Held: The distinction lay in whether the gift took the form of a trust under which capital was retained and the income only applied for the benefit of the objects, in which case the gift was . .

Joyce v Joyce; 2 Jan 1978

References: [1978] 1 WLR 1170, [1979] 1 All ER 175
Coram: Megarry V-C
A claim was made for specific performance of an oral agreement to sell shares.
Held: The plaintiff had failed to show that if he issued another writ for the same relief, it would be not be defeated by the doctrine of laches. Payment of the purchase price is neither here nor there if the contract against which it is said to have been paid was in dispute. A plea of laches is available to a person against whom it is alleged that he holds the disputed asset as a bare trustee under an uncompleted contract: ‘In applying Birkett v James [1978] AC 297 to cases that are the subject to laches rather than any fixed period of limitation, I think that it is for the plaintiff to demonstrate the futility of striking out the earlier action; and to do this he must at least show that in the second action there is a prima facie case for his being able to overcome the difficulties resulting from the doctrine of laches. In this case the plaintiff has wholly failed to persuade me of this. Certainly the plaintiff has been very far from showing himself to be ‘ready, desirous, prompt and eager.’ The court therefore considered that ‘ it would be futile to dismiss the first action for want of prosecution, for although the defendant would still be exposed to the claims in the second action, those claims face greater difficulties than did the claims in the first action. In other words, the defendant is better off in facing only the second action and not having to meet the first. ‘
This case cites:

  • Cited – Birkett -v- James HL ([1978] AC 297, [1977] 2 All ER 801, [1977] 3 WLR 38)
    The court has an inherent power to strike out an action for want of prosecution, and the House set down the conditions for its exercise. The power is discretionary and exercisable only where (a) there has been inordinate and inexcusable delay and . .

This case is cited by:

  • Cited – Inglorest Investments Ltd -v- Robert Campbell & Another CA ([2004] EWCA Civ 408, Bailii)
    The appellants appealed an order that property be part of the estate of the deceased. There had been an agreement to assign the reversion of the lease to the claimant. That was not completed, but he later acquired the freehold reversion. No written . .

Bonaker, Clerk v Evans; Cexc 3 Dec 1850

References: [1850] EngR 923, (1850) 16 QB 162, (1850) 117 ER 840
Links: Commonlii
Under stat, 1 & 2 Vict. c, 106, a writ of sequestration issued from the Consistory Court of the diocese of W reciting that the bishop had issued a monition, ordering the vicar of the vicarage of C, within the diocese, to reside on his benefice, that the monition was served on the vicar, and he returned that he had since commenced residence in consequence of this monition : that it had been officially reported to the bishop that the vicar had so commenced residence, but had not continued to reside, and had not been present at his vicarage house four months on the whole in the year following the monition ; that the bishop thereupon, by a subsequent order, ordered him to proceed to and reside on the benefice within thirty days ; which order had not been complied with : and the bishop had therefore directed the Court to sequester the profits until the order should have been complied with, or satisfactory reason for non-compliance shewn to the bishop: whereupon the Court sequestered the profits, until, &e. (as before), directing the sequestrator to collect them and out of the same to cause the cure to be duly served, and to account for the residue, &c. The sequestrator having taking the profits accordingly, an action of debt for money had and received was brought against him by the vicar. It appeared at the trial that the sequestration had issued without notice to the vicar to shew cause why it should not issue.
Held: by the Court of Exchequer Chamber, on error and bill of exceptions, that such notice was essential to the right of the sequestrator, although, after a proper preliminary proceeding, the judgment of the bishop is final. And, that a notice warning the vicar, after he had made return to the monition, that, unless he resided, the sequestration would issue, was not such a notice as was requisite. Also, that the sequestration could not be considered as issuing under sect. 56, which authorizes the bishop to sequester quousque without further monition or order, when the clerk, after being ordered to reside, begins to reside, but, before the expiration of twelve months thereafter, wilfully absents himself for one mouth. And that the action of debt was well brought. It is advisable that the sequestration in such a case should recite the delinquency and the bishops adjudication tbereon ; and that the previous monition be preceded by a summons to shew cause why it should not issue.

Appellant S395/2002 v Minister for Immigration and Multicultural Affairs; 9 Dec 2003

References: [2003] HCA 71, [2003] 216 CLR 473, [2003] 203 ALR 112, [2003] 78 ALJR 180
Links: Austlii
Coram: McHugh, Kirby JJ
(High Court of Australia) McHugh and Kirby JJ said: ‘Persecution covers many forms of harm ranging from physical harm to the loss of intangibles, from death and torture to state sponsored or condoned discrimination in social life and employment. Whatever form the harm takes, it will constitute persecution only if, by reason of its intensity or duration, the person persecuted cannot reasonably be expected to tolerate it.’
This case is cited by:

Pushpanathan v Canada (Minister of Citizenship and Immigration); 3 Sep 2002

References: [2002] FCJ No 1207, 2002 FCT 867
Links: UNCHR
Coram: Blais J
FCC (Federal Court of Canada – Trial Division) – Application by Pushpanathan for judicial review of a decision of the Convention Refugee Determination Division that he was not a Convention refugee. Pushpanathan was a Tamil citizen of Sri Lanka. He alleged that he was persecuted on the basis of his political opinions and was detained after participating in a political demonstration. While in Canada, Pushpanathan was convicted of conspiracy to traffic heroine along with five other Tamils and served over two years in a federal penitentiary. At his first hearing, the Refugee Division found that the conviction excluded him from refugee status because it was contrary to the purposes and principles of the United Nations. On appeal, the court ordered a new hearing. At the second hearing, the Refugee Division found that Pushpanathan was excluded from refugee protection on the basis of his involvement in crimes against humanity and terrorist activities associated with the Liberation Tigers of Tamil Eelam.
HELD: Application dismissed. The standard of review was less than a balance of probabilities. The Refugee Division correctly concluded that the Liberation Tigers was a terrorist organization. Through the trafficking of narcotics, Pushpanathan was complicit in supporting the Liberation Tigers and demonstrated a personal knowing participation and common purpose with the Tigers.
This case is cited by:

  • Cited – Al-Sirri -v- Secretary of State for The Home Department SC (Bailii, [2012] UKSC 54, [2012] 3 WLR 1263, [2012] WLR(D) 333, Bailii Summary, UKSC 2009/0036, SC Summary, SC, [2013] 1 AC 745, [2013] 1 All ER 1267)
    The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .

Greenough v Gaskell; 17 Jan 1833

References: , [1833] EngR 333, (1833) 1 My & K 98, (1833) 39 ER 618
Links: Commonlii
Coram: Lord Brougham LC
On a bill which sought to charge a solicitor with a fraud practised on the Plaintiffs in the course of proceedings on his client’s behalf, the Court refused to order the production of entries and memorandums contained in the Defendant’s books, or of written communications, made or received by him, relating to those proceedings, and admitted by the answer to he in the Defendant’s custody.
And, generally, it seems that a solicitor cannot be compelled, at the instance of a third party, to clisclose matters which have come to his knowledge in the conduct of professional business for a client, even though such business had no reference to legal proceedings, either existing or in contemplation.
Lord Brougham LC said: ‘The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous.’
This case is cited by:

  • Cited – Regina -v- Derby Magistrates Court Ex Parte B HL (Independent 27-Oct-95, Times 25-Oct-95, [1996] AC 487, Bailii, [1995] UKHL 18, [1996] 1 FLR 513, [1996] 1 Cr App R 385, (1995) 159 JP 785, [1996] Fam Law 210, [1995] 3 WLR 681, [1995] 4 All ER 526)
    B was charged with the murder of a young girl. He made a confession to the police, but later changed his story, saying his stepfather had killed the girl. He was acquitted. The stepfather was then charged with the murder. At his committal for trial, . .
  • Cited – Prudential Plc and Another, Regina (on The Application of) -v- Special Commissioner of Income Tax and Another SC ([2013] WLR(D) 20, Bailii, [2013] UKSC 1, Bailii Summary, UKSC 2010/0215, SC Summary, SC)
    The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
    Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .

Upjohn Company v United States; 13 Jan 1981

References: [1981] USSC 7, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584
Links: Worldlii
Coram: Justice Rehnqist
Worldlii United States Supreme Court – When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner’s attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. – 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate’s recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate’s finding of a waiver of the attorney-client privilege, but held that under the so-called ‘control group test’ the privilege did not apply ‘[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner’s] actions in response to legal advice . . for the simple reason that the communications were not the ‘client’s.’ ‘ The court also held that the work-product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner’s employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer’s advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation’s lawyers. Middle-level – and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney’s advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.
(d) Here, the communications at issue were made by petitioner’s employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice
2. The work-product doctrine applies to IRS summonses.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys’ mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney’s mental processes, and Hickman v. Taylor, [1947] USSC 5; 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship.
This case is cited by:

Holland v Russell; 9 May 1863

References: [1863] EngR 546, (1863) 4 B & S 14, (1863) 122 ER 365
Links: Commonlii
This case cites:

  • See Also – Holland -v- Russell ([1861] EngR 728, Commonlii, (1861) 1 B & S 424, (1861) 121 ER 773)
    Insurance. Suppression of material fact. Principal and agent. Money had and received. A, as agent for a foreign owner, entered into a policy of insurance on a ship in the usual form. At the time of effecting the insurance, A was in possession of a . .

IceTV Pty Ltd v Nine Network Australia Pty Ltd; 22 Apr 2009

References: [2009] AIPC 92-335, [2009] HCA 14, (2009) 239 CLR 458, (2009) 254 ALR 386, (2009) 83 ALJR 585, (2009) 80 IPR 451
Links: Austlii
Coram: French CJ
Austlii High Court of Australia – Intellectual property – Copyright – Literary work – Compilation – Infringement – Production by employees of Nine Network Australia Pty Limited (‘Nine’) of weekly schedules of television programmes to be broadcast on television stations within Nine Network (‘Weekly Schedules’) – Information from Weekly Schedules used by third parties, with licence from Nine, to produce ‘Aggregated Guides’ containing programme schedules for various television stations – Production by employees of IceTV Pty Limited of electronic programme guide for television using information from Aggregated Guides – Subsistence of copyright in each Weekly Schedule admitted – Alleged infringement of copyright by reproduction of substantial part of Weekly Schedules – Whether reproduction of ‘substantial part’ – Quality of part reproduced – Originality – Information/expression dichotomy – Appropriation of ‘skill and labour’ – Relevance of skill and labour devoted to programming decisions – Relevance of competing interests and policy considerations – Animus furandi.
Intellectual property – Copyright – Literary work – Compilation – Subsistence – Need to identify author, and time of making or first publication, of work – Originality – Kind of skill and labour required – ‘Sweat of the brow’ and ‘industrious collection’ compared with ‘creativity’.
Intellectual property – Copyright – Literary work – Compilation – Subsistence – Weekly Schedules produced using computer database – Whether database also work in suit – Whether Weekly Schedules same work.
Words and phrases – ‘animus furandi’, ‘author’, ‘compilation’, ‘information/expression dichotomy’, ‘originality’, ‘skill and labour’, ‘substantial part’.
This case is cited by:

Minister for Immigration and Multicultural Affairs v Ibrahim; 1 Oct 2000

References: (2000) 204 CLR 1, [2000] HCA 55
Coram: Gummow J
(High Court of Australia) The court recognised a right in sovereign states to give refuge to aliens fleeing from foreign persecution and to refuse to surrender such persons to the authorities of their home states: ‘there have been attempts which it is unnecessary to recount here to broaden the scope of the Convention itself by a Draft United Nations Convention on Territorial Asylum but these collapsed more than twenty years ago.’
This case is cited by:

The ‘Pegase’: 1981

References: [1981] I Ll Rep 175
Coram: Goff J
The court considered the measure of damages for breach of contract in the light of the cases in the Heron II and Victoria Laundry: ‘the principle in Hadley v Baxendale is now no longer stated in terms of two rules, but rather in terms of a single principle – though it is recognised that the application of the principle may depend on the degree of relevant knowledge held by the defendant at the time of the contract in the particular case’.
This case cites:

  • Cited – Victoria Laundry (Windsor) Ltd -v- Newman Industries CA ([1949] 2 KB 528)
    The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
    Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
  • Cited – Czarnikow (C ) Ltd -v- Koufos; The Heron II HL ([1967] 3 All ER 686, [1969] 1 AC 350, [1967] 3 WLR 1491, Bailii, [1967] UKHL 4)
    The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .
  • Cited – Hadley -v- Baxendale Exc (Bailii, [1854] EWHC Exch J70, [1854] EngR 296, Commonlii, (1854) 9 Exch 341, (1854) 156 ER 145)
    The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .

This case is cited by:

  • Cited – Transfield Shipping Inc of Panama -v- Mercator Shipping Inc of Monrovia ComC (Bailii, [2006] EWHC 3030 (Comm), [2007] 1 Lloyd’s Rep 19, [2007] 1 All ER (Comm) 379, [2006] 2 CLC 1069)
    The owners made substantial losses after the charterers breached the contract by failing to redliver the ship on time as agreed.
    Held: On the facts found the Owners’ primary claim is not too remote. To the knowledge of the Charterers, it was . .
  • Cited – Transfield Shipping Inc -v- Mercator Shipping Inc (The Achilleas) HL (Bailii, [2008] UKHL 48, Times 10-Jul-08, HL)
    The parties contracted to charter the Achileas. The charterer gave notice to terminate the hire, and the owner found a new charterer. Until the termination the charterers sub-chartered. That charter was not completed, delaying the ship for the . .

A Local Authority v K; COP 15 Feb 2013

References: [2013] EWHC 242 (COP)
Links: Bailii
Coram: Cobb J
K was a young lady llivng amid her family with Downs syndrome. The family were thought too want her to be sterilised. The local authority applied to the court to determine whether this should be prevented. It was agreed that she was not currently sexually active and that there was no health condition requiring it.
Held: K would not have capacity to understand and weigh up the immediate medical issues, she lacks capacity in this regard and the court therefore considered making a decision in her best interests.
Cobb J said: ‘it is my judgment that sterilisation would be a disproportionate (and not the least restrictive) step to achieve contraception for K in the future (absent significant change in her circumstances). Plainly risk management is better than invasive treatment, it is less restrictive. Moreover, I am persuaded . . that there are less restrictive methods of achieving the purpose of contraception than sterilisation, and that in the event of a need for contraception, these ought to be attempted.’
Statutes: Mental Capacity Act 2005, European Convention on Human Rights 8
This case cites:

Project Blue Sky Inc v Australian Broadcasting Authority; 28 Apr 1998

References: (1998) 194 CLR 355, [1998] HCA 28, (1998) 153 ALR 490, (1998) 72 ALJR 841, (1998) 8 Legal Rep 41
Links: Austlii
Coram: McHugh, Gummow, Kirby and Hayne JJ
(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.”
This case is cited by:

  • Cited – Regina -v- Soneji and Bullen HL (Bailii, [2005] UKHL 49, House of Lords, Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
    The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
  • Cited – Ashton , Regina -v-; Regina -v- Draz; Regina -v- O’Reilly CACD (Bailii, [2006] EWCA Crim 794, Times 18-Apr-06, [2007] 1 WLR 181)
    The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
  • Cited – North Somerset District Council -v- Honda Motor Europe Ltd and Others QBD (Bailii, [2010] EWHC 1505 (QB), [2010] RA 285)
    The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
  • Cited – TTM -v- London Borough of Hackney and Others CA (Bailii, [2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873)
    The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
  • Cited – Stockton-On-Tees Borough Council -v- Latif Admn (Bailii, [2009] EWHC 228 (Admin))
    The council appealed against a decision that the crown court had jurisdiction to extend the time for appeal against refusal of a private hire vehicle licence.
    Held: The court did not have the jurisdiction it used: ‘The terms of the section 300 . .

Pope v Curl; 17 Jun 1741

References: [1741] EngR 500, (1741) 2 Atk 342, (1741) 26 ER 608 (A)
Links: Commonlii
The defendant, on his answer being put in, moved to dissolve an injunction against his vending a book of letters from Swift, Pope,and others.
Held: A collection of letters as well as other books, is within the intention of the 8th of Queen Anne, the act for the encouragement of learning. The receiver of a letter has, at most, a joint property with the writer, and the possession does not give him a licence to publish.
This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

Millar v Taylor; 20 Apr 1769

References: [1769] EngR 44, (1769) 4 Burr 2303, (1769) 98 ER 201
Links: Commonlii
Yates J said: ‘It is certain every man has a right to keep his own sentiments if he pleases. He has certainly a right to judge whether he will make them public, or commit them only to the sight of his friends. In that state the manuscript is, in every sense, his peculiar property, and no man can take it from him, or make any use of it which he has not authorised, without being guilty of a violation of his property; and, as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication; and whoever deprives him of that priority is guilty of a manifest wrong, and the Court has a right to stop it.’
This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

Macklin v Richardson; 5 Dec 1770

References: [1770] EngR 72, (1770) Amb 694, (1770) 27 ER 451
Links: Commonlii
A short-hand writer took down the words from the mouths of the actors on the stage playing the farce of ‘Love a la Mode’, and the Defendant afterward published them, and an injunction was granted to restrain him, on the ground that the author had not, by the public representation of the farce, parted with his exclusive right of publication.
This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

(This list may be incomplete)
Last Update: 28-Feb-16 Ref: 374245

Best Buys Supplies Ltd v HMRC; UTTC 20 Dec 2011

References: [2011] UKUT 497 (TCC)
Links: Bailii
Coram: Wallace, Clark TJJ
VAT – input tax – absence of valid invoices – refusal by HMRC to allow input tax claims – absence of reconsideration – whether original decision reasonable – finding by FTT that unreasonable – conclusion by FTT that decision would have been the same had HMRC acted reasonably – nature of jurisdiction – whether FTT’s finding that supplies were made in relevant transactions was perverse – unclear what matters taken into account in arriving at that finding – appeal remitted to FTT to make appropriate findings.

Samuel v Rogers; 17 Feb 1864

References: [1864] EngR 257 (A), (1864) 1 De G J & S 396
Links: Commonlii
This was an appeal from a decision of Vice-Chancellor Wood refusing leave to serve the sole Defendant, who was described in the bill as resident at Dublin, out of the jurisdiction, with a copy of the bill and interrogatories, and notice of motion for an injunction ‘at Dublin or elsewhere in Ireland.’
The bill sought an injunction against the Defendant, restraining him from advertising for sale any articles of clothing under any name in which the word ‘Sydenham’, to the use of which, as a prefix, the Plaintiff claimed an exclusive right, occurred ; and from selling any articles of clothing as and for ‘Sydenham’ articles, and from selling or offering for sale any articles of clothing not manufactured by the Plaintiff, in such manner and form as to represent or lead to the belief that the same had been produced by the PIaintiff ; and for an account and costs.

Tynes v Barr; 28 Mar 1994

References: (1994) 45 WIR 7, [1994] ICHRL 5
Links: Worldlii
(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured to his dignity and pride, mental suffering and loss of reputation: ‘Exemplary damages should be awarded in view of the arrogant, abusive and outrageous disregard shown by the police for the law, in particular, their delay in producing documents; the manner in which the defence was conducted; and the fact that liability was not conceded until the sixth and ninth days of the trial and even then with no appropriate apology being offered to the plaintiff. The police should be made aware of the need to observe the requirements as to when they may arrest and detain a person without a warrant and the way in which a person so detained must be humanely treated.’
This case is cited by:

  • Cited – Takitota -v- The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
    Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

Taylor v Rudd; 5 Feb 1677

References: [1677] EngR 85, (1677) 2 Chan Cas 241, (1677) 22 ER 926 (B)
Links: Commonlii
The Defendant, four Days after her Husband’s Death, was asked by the Plaintiff, whether she would marry again : and he gave her a Guinea to have ten Guineas for it if she married again. And now she being married, the Plaintiff sued her and her Husband to discover the Promise.

The National Home Loans Corporation v Hannah: 1997

References: [1997] CCLR 7
The borrower had first borrowed money on mortgage (the 1989 loan) to pay off an existing third party mortgage (as well as raising additional funds) and later paid off the new mortgage as part of the process of substituting that mortgage for a different one from the same lender. One issues was whether the 1989 loan agreement should be construed as falling into parts, so as to engage section 18(1)(a).
Held: The 1989 loan was an integrated package which could not be split up without altering its essential character and that section 18(1)(a) did not therefore apply.
Statutes: Consumer Credit Act 1974 18
This case is cited by:

  • Cited – Heath -v- Southern Pacific Mortgage Ltd ChD (Bailii, [2009] EWHC 103 (Ch))
    The appellant challenged a mortgagee’s possession order saying that the loan agreements sought to be enforced were invalid and the charges unenforceable. The loan had been in two parts. She said that as a multi-part agreement it fell within section . .

Regina v Secretary of State ex parte Toner and Walsh; NIQB 1997

References: [1997] NIQB 18
The claimants sought damages saying that the respondent had infringed their human rights in removing their right to vote in an election whilst serving prison sentences.
This case is cited by:

  • Cited – Tovey and Others -v- Ministry of Justice QBD (Bailii, [2011] EWHC 271 (QB))
    The claimants, serving prisoners, sought damages saying that the refusal to allow them to vote was in infringement of their human rights. The large numbers of claims had been consolidated in London. The claimant sought to withdraw his claim.

Randall v Stevens And Others; 25 Jun 1853

References: [1853] EngR 767, (1853) 2 El & Bl 641, (1853) 118 ER 907
Links: Commonlii
Coram: Lord Campbell LC
A landlord evicted a tenant who had failed to pay any rent for twenty years. Statute provided that a house could not be repossessed simply by exercising a right of entry.
Held: Lord Campbell LC, giving the judgment of the Court of Queen’s Bench on appeal from a judgment given at assizes, held that entry could be made ‘by stepping on any corner of the land in the night time and pronouncing a few words, without any intention or wish to take possession.’ However, where possession was taken with an intention to possess, then ‘whether possession was retained by the landlord an hour or a week must for this purpose [i.e. taking possession other than by mere entry] be immaterial.’
This case is cited by:

  • Cited – Zarb and Another -v- Parry and Another CA (Bailii, [2011] EWCA Civ 1306, [2011] WLR (D) 331, WLRD)
    The parties disputed the position of the boundary between their neighbouring properties. The appellant Z had succeeded in establishing that the the boundary was as they decribed on paper, but the respondents had succeeded in their claim for adverse . .

In re An Act For Enabling The Newcastle And Darlington Junction Railway Company To Purchase The Brandling Junction Railway And In The Matter Of The York, Newcastle And Berwick Railway Act, 1847 etc; 7 Mar 1856

References: [1856] EngR 326, (1856) 3 Sm & G 307, (1856) 65 ER 671
Links: Commonlii
One of the conditions at an attempted sale by auction under a decree provided that the purchase should be completed on a day named, and that, if from any cause whatever the purchase-money should not then be paid, interest should be paid from that date. The purchase was by private contract, subject to the conditions of sale, and also subject to the purchase being approved by the Court. The purchase-money was a fund in Court, and after a long delay the conveyancing counsel approved of the title for the purchasers.
Held: Neither party being to blame for the delay, the purchasers could not be relieved from their obligation to pay interest.

Metropolitan Properties Company (FGC) Limited v Lannon; 11 Jul 1968

References: [1968] RVR 490, [1968] EWCA Civ 5, [1968] 3 All ER 304, [1968] 3 WLR 694, (1968) 19 P & CR 856, [1969] 1 QB 577
Links: Bailii
Coram: Lord Denning MR, Danckwerts LJ, Edmund Davies LJ
Tenants of apartments asked the Rent Officer to fix the fair rents. On appeal, the rents were then set at a rate lower even than they had requested. The rents would serve as a guide for other local rents. The landlords now complained that the chairman of the Rent Assessment Committee had been assisting his own father in negotiating a rent for such a local property, and had represented other tenants. They complained of bias.
Held: He should not have sat. It was accepted that he had had no pecuniary interest himself, and had acted scrupulously. It was a question of whether there was any appearance of bias.
Lord Denning MR considered the test for apparent bias, and said: ‘The court looks at the impression which would be given to other people. Even if he was as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand.’
Statutes: Rent Act 1965
This case is cited by:

  • Cited – Regina -v- Abdroikof, Regina -v- Green; Regina -v- Williamson HL (Bailii, [2007] UKHL 37, Times 08-Nov-07, [2007] 1 WLR 2679, [2008] 1 Cr App R 21, [2008] Crim LR 134, [2008] 1 All ER 315, (2007) 151 SJLB 1365)
    The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .

Kane v Reynolds; 25 Nov 1854

References: [1854] EngR 953, (1854) 4 De G M & G 565, (1854) 43 ER 628
Links: Commonlii
The solicitor for the affairs of the Treasury, as nominee of the Crown, having taken out letters of administration of the goods of an intestate on the assumption that he had died without next of kin, was held not entitled to the costs of a suit instituted by a person rightfully claiming as next of kin.

Payne v Railway Executive; 2 Jan 1951

References: [1951] 1 All ER 1034
Coram: Cohen LJ, Singleton LJ, Birkett LJ
A Royal Navy sailor was disabled by a railway accident and was awarded a disability pension of £2 16s. 3d. per week. At first instance J Sellers had held that Bradburn’s case applied so as to prevent deduction of the value of the pension. If it had been deductible that would have reduced the damages for loss of earnings from £3,000 to £750.
Held: The appeal failed. The accident was not the causa causans of the receipt of the pension. Singleton LJ: ‘If there were no pension rights it is reasonable to assume that the pay would be higher. Why, then, should the pension enure to the benefit of a wrongdoer?’ The Minister had power to withhold or reduce the pension.
This case is cited by:

  • Affirmed on Appeal – Payne -v- Railway Executive ([1952] 1 KB 26)
    Disablement pensions, whether voluntary or not, are to be ignored in the assessment of damages. . .
  • Cited – Parry -v- Cleaver HL ([1970] AC 1, [1969] 2 WLR 821, [1969] 1 All ER 555, [1969] 1 Lloyd’s Rep 183, Bailii, [1969] UKHL 2)
    The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
    Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
  • Applied – Judd -v- Board of Governors, Hammersmith, West London and St. Mark’s Hospitals ([1960] 1 WLR 32, [1960] 1 All ER 607)
    The plaintiff, a local government officer had made compulsory contributions to his superannuation scheme.
    Held: A contributory pension received early on an injury was to be ignored until the normal retiring age, but deducted for the later . .

Deepak Sitapuria v Moorzadi Khan; 10 Dec 2007

References: Unreported, 10 December 2007
Coram: HH Judge Stewart QC
(Liverpool County Court) In relation to provisions in the CPR dealing with uplift of fees in employer’s liability cases, a trial has not commenced for the purposes of the uplift in solicitor’s fees if a settlement is reached before the hearing of the case has started. As for the rule applicable to counsel, if a case settles on the day of a hearing but before it starts, the claim concludes within a period the start of which is the specified number of days before the date fixed for the commencement of the hearing and not ‘at trial’.
HH Judge Stewart QC disagreed with the judgment of Master Haworth in Dahele v Thomas Bates & Son Ltd [2007] EWCA 90072 (costs) in which he decided that a case ‘concludes at trial’ for the purpose of the rule relating to uplift in counsel’s fees if it settles on the day fixed for trial. He also disagreed with adopting this construction to interpret ‘at trial’ in the rule relating to solicitors as meaning on the day fixed for the hearing.
This case is cited by:

  • Cited – Amin and Another -v- Mullings and Another QBD (Bailii, [2011] EWHC 278 (QB))
    The parties disputed the uplift applicable where a road traffic personal injury claim was settled on the day before the full trial, and whether ‘ the learned Recorder erred in holding that the claim concluded at trial because the Claimant’s claim . .

Collier v Hicks; 7 Jun 1831

References: (1831) 2 B & Ad 663, [1831] EngR 686, (1831) 109 ER 1290
Links: Commonlii
Coram: Lord Tenterden CJ
Trespass for assaulting, and turning plaintiff out of a police office. Plea, that two of the defendants, being justices of the peace, were assembled in a police office to adjudicate upon an information against AB for an offence against a penal statute, and were proceeding to hear and determine the same, when the plaintiff (being an attorney) entered the police office with the informer, not as his friend or as a spectator, but for the avowed purpose of acting as his attorney and advocate touching the information ; and as such attorney and advocate, without the leave, and against the will, of the justices, was taking notes of the evidence of a witness then under examination before them, touching the matter of the said information, and was acting and taking a part in the proceedings as an attorney or advocate on behalf of the informer; that the above two defendants stated to the plaintiff, that it was not their practice to suffer any person to appear and take part in any proceedings before them as an attorney or advocate, and requested him to desist from so doing; and although they were willing to permit the plaintiff to remain in the police office as one of the public, yet that he would not desist from taking a part in the proceedings as such attorney or advocate, but asserted his right to be present, and to take such part, and to act as such attorney and advocate for the informer; and unlawfully, and against the will of the justices, continued in the police office, taking part and acting as aforesaid, in contempt of the justices ; whereupon, by order of the above two defendants, the other defendants turned the plaintiff out of the office :
Held: on demurrer, that this was a good plea, inasmuch as no person has by law a right to act as an advocate on the trial of an information before justices of the peace, without their permission.
Lord Tenterden CJ said: ‘Any person, whether he be a professional man or not, may attend as a friend of either party, may take notes, may quietly make suggestions, and give advice; but no one can demand to take part in the proceedings as an advocate, contrary to the regulations of the court as settled by the discretion of the Justices.’
This case is cited by:

  • Cited – McKenzie -v- McKenzie CA ([1971] P 33, [1970] 3 WLR 472, CAT 679/1991)
    Mr McKenzie was a litigant in person who wished to be assisted by a young Australian barrister, gratuitously, in the conduct of his case by sitting beside the husband in Court and prompting him. The hearing was in open Court . The friend’s conduct . .
  • Cited – O and others (Children); In re O (Children), In re W-R (a Child), In re W (Children) CA (Bailii, [2005] EWCA Civ 759, Times 27-Jun-05)
    In each case litigants in person had sought to be allowed to have the assistance and services of a Mackenzie friend in children cases. In one case, the court had not allowed confidential documents to be disclosed to the friend.
    Held: The . .
  • Cited – Regina -v- Bow County Court Ex parte Pelling QBD (Times 08-Mar-99, Bailii, [1999] EWHC Admin 181)
    Mr Pelling sought to act as a McKenzie friend. On being refused he sought judicial review of he decision to exclude him.
    Held: Review was refused. A McKenzie friend has himself no locus to challenge a decision by a county court judge not to . .

Lake District Special Planning Board, ex parte Bernstein; 3 Feb 1982

References: Times 03-Feb-1982
A diversion of a footpath must be along an entirely new path, and not an existing way.
This case is cited by:

  • Cited – Mear and others -v- Cambridgeshire County Council ChD (Bailii, [2006] EWHC 2554 (Ch))
    The claimants sought a declaration that a path over neighbouring land was a public vehicular highway as recorded by the respondents, and not a footpath as asserted by the owners, and that gates over the path infringed the public rights. The council . .

Egerton v Jones; 5 Aug 1830

References: [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266
Links: Commonlii
An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court had sustained, was, in the circumstances, immaterial.
This case cites:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051)
    An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my . .
  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B))
    Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the . .

Egerton v Jones; 3 May 1830

References: [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B)
Links: Commonlii
Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the objection.
This case cites:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051)
    An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my . .

This case is cited by:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266)
    An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court . .

Egerton v Jones; 16 Mar 1830

References: [1830] EngR 487, (1830) 3 Sim 409, (1830) 57 ER 1051
Links: Commonlii
An estate at C was settled on A for life, remainder to his first and other sons in tail male, remainder to A. in fee. A. devised as follows : ‘As to the reversion and inheritance of the freehold estate at C., purchased by me in pursuance of my marriage articles, bearing date, &e., in case of failure of issue of my body by my said wife, I give and devise the same,’ &e. He then limited the estate to his brothers in succession, and to their respective first and other sons in tail male. The Court was of opinion that the devise was good.
This case is cited by:

  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 549, (1830) 3 Sim 392, (1830) 57 ER 1044 (B))
    Upon the allowance of exceptions to a report approving of a title, the Court will, on the application of the vendor, refer it back to the Master to review his report, in orders to give the vendor an opportunity of producing evidence to remove the . .
  • See Also – Egerton -v- Jones (Commonlii, [1830] EngR 780, (1830) 1 Russ & My 694, (1830) 39 ER 266)
    An exception to a report in favour of the title having been on argument allowed, leave was given to the Plaintiff, some time afterwards, to go again before the Master, for the purpose of bringing evidence to shew that the objection which the Court . .

Knox v Wells; 22 Dec 1864

References: [1864] EngR 882, (1864) 2 H & M 674, (1864) 71 ER 626
Links: Commonlii
ER A testator devised Blackacre to trustees upou trust out of the rents and profits to pay an annuity to J and A, his wife, jointly, and a similar annuity to the survivor, and upon trust to accumulate the residue for the benefit of the children of J and divide the same among such children when the youngest attained 30, ‘and if any of such children should die under 0 leaving issue such issue were to take their parent’s share. Held, that all the children who survived, took vested interests.

Boardman and Another v Customs and Excise; Excs 23 Apr 2004

References: [2004] UKVAT-Excise E00705
Links: Bailii
Excs EXCISE DUTY – Restoration of seized motor vehicle – the cigarettes and tobacco were sold for a profit – the non-restoration was proportionate to the contravention – no exceptional hardship – no third party owner – no reasons given for the deemed decision – outcome of a further review inevitably the same – non-restoration decision reasonable – Appeal dismissed.

Regina v London Borough of Ealing Ex parte Sidhu; 2 Jan 1982

References: (1982) 2 HLR 48
Coram: Hodgson J
The applicant, in flight from domestic violence, had gone with her two young children, to stay in a women’s refuge. The local authority argued that she was not homeless because she had accommodation available to her in the refuge.
Held: The application for judicial review succeeded. The court approved the conclusion of a county court judge in another case that ‘women living in refuges were still homeless’ under the terms of the 1977 Act. Hodgson J did not regard a crisis refuge as accommodation within the meaning of the 1977 Act. It was essential that women who had gone to refuges were still seen as homeless. Otherwise the refuges would have to give them 28 days notice when they came in so that they would be under threat of homelessness (under s 1(3) of the 1977 Act).
Statutes: Housing (Homeless Persons) Act 1977
This case cites:

  • Cited – Din (Taj) -v- Wandsworth London Borough Council HL ([1983] 1 AC 657, Bailii, [1981] UKHL 14, [1981] 3 WLR 918, [1982] 1 All ER 1022, (1981-82) 1 HLR 73, [1981] 3 All ER 881)
    The appellants had applied for emergency housing as homeless persons, anticipating loss of their secure accomodation after falling into arrears. The Council reject their application, but a County Court quashed that decision. The Court of Appeal . .

This case is cited by:

  • Cited – Manchester City Council -v- Moran and Another; Richards -v- Ipswich Borough Council CA (Bailii, [2008] EWCA Civ 378, Times 20-May-08, [2008] 1 WLR 2387)
    The two applicants had occupied a women’s refuge. They appealed a refusal to consider them as homeless when they acted in such a way as to be evicted from the refuge, saying that the refuge did not constitute ‘accommodation . . which it would have . .
  • Cited – Birmingham City Council -v- Ali and Others; Moran -v- Manchester City Council HL (Bailii, [2009] UKHL 36, Times, [2009] NPC 88, [2009] 1 WLR 1506, [2009] PTSR 1270, [2009] 4 All ER 161, [2009] BLGR 749)
    The House considered appeals challenging whether local authorities who gave unacceptable housing to the homeless had satisfied their obligations to them as homeless people. What was meant by the phrase ‘accommodation which it would be reasonable for . .

Galbraith v Revenue and Customs; Excs 27 Sep 2006

References: [2006] UKVAT-Excise E00993
Links: Bailii
Excs Restoration of vehicle seized by Customs sought – order in condemnation proceedings declared forfeit goods (25kgs. hand rolling tobacco and 600 cigarettes) and seized vehicle in which they were carried – vehicle used for part-time taxi business – exceptional hardship and proportionality considered – appeal dismissed

TC Kirton Plant Hire Ltd v Revenue and Customs; Excs 30 Jul 2008

References: [2008] UKVAT-Excise E01130
Links: Bailii
VDT EXCISE DUTY RED DIESEL – assessment re two vehicles – only one dipped – issues whether undipped vehicle could be assessed and whether methodology for calculation of duty correct – High Court decision in Thomas Corneill followed – reduction in mileage for one vehicle accepted by Customs – subject thereto appeal dismissed.

Bem Dis A Turk Ticaret S/A Tr v International Agri Co Ltd; ‘SELDA’: ComC 31 Oct 1997

References: [1998] 1 Lloyd’s Rep 416, Times 13-Dec-1997
Coram: Clarke J
At common law the buyer’s remedy for failure to perform a contract of sale of goods is to claim damages for non-delivery. Where, as here, there was an available market, the measure of damages is prima facie to be ascertained by the difference between the contract price and the market or current price of the goods at the time or times when they ought to have been delivered.
Arbitration appeal from Gafta. Construction of default clause 28 in Gafta – Form 100.
This case cites:

This case is cited by:

Owners of the cargo lately laden on board the ship or vessel ‘ELPIS’ v Owners of the ship or vessel ‘ELPIS’: AdCt 17 Oct 1997

References: Unreported, 17 October 1997
Coram: Clarke J
ComC Arbitration – letter of undertaking – Arbitration section (14) of the Arbitration Act 1996 – Appeal from Admiralty Registrar – Cargo claim – application to add Plaintiff – were Defendants entitled to a stay or was the Arbitration Agreement inoperative because of the terms of a letter of undertaking? – was the expression ‘owners of cargo’ wide enough to include the new Plaintiff? It was – it followed that the parties agreed to submit the new Plaintiff’s claim to the exclusive jurisdiction of the court, that its Arbitration Agreement was inoperative and that its application succeeded. Appeal dismissed.

Butlin v Barry; 5 Sep 1837

References: , [1837] EngR 984, (1837) 1 Curt 614, (1837) 163 ER 215
Links: Commonlii
(Prerogative Court) A will being drawn by a solicitor, in which a considerable legacy was given to himself and to the medical man and butler of the deceased, excluding an only son, the presumption of law is strong against the act, and the Court requires strong evidence to satisfy it that the act is the real and voluntary act of the testator. Under the circumstances sufficient evidence being given of the capacity of the deceased and of his knowledge of the contents of the instrument, the Court pronounced for the will and condemned the son in costs from the time of giving in his allegatian.
This case cites:

  • See Also – Barry -v- Butlin (Bailii, [1836] UKPC 9, [1838] 2 Moo PCC 480)
    The hearing of a cause in the Prerogative Court is one continuous act, and after a cause has been set down for sentence on the second assignation, it is not competent for either of the litigant parties to interpose an appeal, till sentence has been . .

This case is cited by:

  • Appeal from – Barry -v- Butlin PC ((1838) 2 Moore’s PCC 480, Commonlii, [1838] EngR 1051, (1838) 1 Curt 637, (1838) 163 ER 223, Commonlii, [1838] EngR 1056, (1838) 2 Moo PC 480, (1838) 12 ER 1089, Commonlii, [1836] EngR 855, (1836) 1 Moo PC 98, (1836) 12 ER 749, Bailii, [1838] UKPC 22)
    The testator, who had one son, bequeathed legacies to Percy, his attorney, one Butlin, to whom he also bequeathed the residue of his estate, and Whitehead, his butler. The will was upheld by the judge in the Prerogative Court and the son appealed. . .

Jaensch v Coffey; 20 Aug 1984

References: (1984) 55 CLR 549, [1984] 54 ALR 417, [1985] CLY 2326, [1984] HCA 52
Links: Austlii
Coram: Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ
(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused nervous shock. A finding at first instance that she had normal fortitude, her predisposition to anxiety and depression gave no defence.
Brennan J said: ‘Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct . . A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages . . I understand ‘shock’ in this context to mean the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.’
This case cites:

  • Cited – McLoughlin -v- O’Brian HL ([1983] 1 AC 410, [1982] 2 All ER 298, Bailii, [1982] UKHL 3)
    The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident but went to the hospital immediately when she had heard what had . .

This case is cited by:

  • Cited – Alcock and Others -v- Chief Constable of South Yorkshire Police HL (Gazette 22-Jan-92, lip, [1991] 3 WLR 1057, Times 29-Nov-91, [1992] 1 AC 310, Bailii, [1991] UKHL 5)
    The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
  • Cited – Alcock and Others -v- Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
    Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
  • Cited – Taylor -v- A Novo (UK) Ltd CA (Bailii, [2013] EWCA Civ 194)
    The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .

Williams v Spautz; 27 Jul 1992

References: 61 A Crim R 431, (1992) 66 ALJR 585, 107 ALR 635, (1992) 174 CLR 509, [1992] HCA 34
Links: Austlii
Coram: Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ
(High Court of Australia) Criminal Law – Abuse of process – Stay of proceedings – Action for wrongful dismissal against university – Information for criminal defamation by plaintiff against officer of university – Predominant purpose of informant to secure reinstatement or favourable settlement of action – Whether abuse of process.
Brennan J attempted a partial definition of purpose in the context of the tort of abuse of process, committed when a person conducts litigation for a purpose other than that for which the court’s process is designed: ‘Purpose, when used in reference to a transaction, has two elements: the first, a result which the transaction is capable of producing; the second, the result which the person or persons who engage in or control the transaction intend it to produce. Or, to express the concept in different terms, the purpose of a transaction is the result which it is capable of producing and is intended to produce.’
This case is cited by:

  • Cited – Hayes -v- Willoughby SC (Bailii, [2013] UKSC 17, Bailii Summary, [2013] 2 All ER 405, [2013] WLR(D) 110, [2013] 2 Cr App R 11, [2013] 1 WLR 935, [2013] EMLR 19, WLRD, UKSC 2012/0010, SC Summary, SC)
    The claimant and appellant had been employer and employee who had fallen out, with a settlement in 2005. The appellant then began an unpleasant and obsessive personal vendetta against Mr Hayes, complaining to public bodies with allegations of tax . .

The Duke Of Brunswick v Harmer; 21 Jun 1850

References: [1850] EngR 681, (1850) 3 Car & K 10, (1850) 175 ER 441
Links: Commonlii
If JH and MY be registered at the stamp office as ‘the sole proprietors’ of a newspaper, ‘that is to say, the said JH as legal owner as mortgagee, and MY as owner of the equity of redemption,’ this is sufficient to fix JH as a proprietor of the newspaper in an action for a libel contained in it. In an alleged libel, the writer suggested the propriety of the plaintiff ‘withdrawing into his own natural and sinister obscurity,’ the word ‘natural’ being printed in italics. Held, that the plaintiff could not ask a witness what he understood by the word ‘natural’ thus printed, but that the jury might look at the paper and form their opinion as to the meaning.
This case cites:

  • See Also – Duke of Brunswick -v- Harmer QBD ((1849) 14 QB 185, [1849] EngR 915, Commonlii, (1849) 117 ER 75)
    On 19 September 1830 an article was published in the Weekly Dispatch. The limitation period for libel was six years. The article defamed the Duke of Brunswick. Seventeen years after its publication an agent of the Duke purchased a back number . .

Southey v Sherwood And Others; 18 Mar 1817

References: [1817] EngR 351, (1817) 2 Mer 435, (1817) 35 ER 1006
Links: Commonlii
Coram: Lord Eldon
Lord Eldon refused an injunction to restrain the publication of Wat Tyler, because he held the work itself to be of an injurious tendency; but he maintained the principle, that, if the work had been innocent in its character, the author would have been entitled to the protection of the Court; and held, that an author had a property in an unpublished work, independently of the statute of 8 Anne, c. 19.
This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

The King v The Justices of Herefordshire; 9 May 1820

References: [1820] EngR 359, (1820) 3 B & A 581, (1820) 106 ER 773 (B)
Links: Commonlii
By 49 G 3, c 68, s 5, ten clear days’ notice of the intention to appeal is required.
Held, that the ten days are to be taken exclusively, both of the day of serving the notice and the day of holding the sessions.
One Joseph Stinton, having had an order of filiation made on him, as the father of a bastard child, served a notice of appeal to the Quarter Sessions for the county of Hereford, on the morning of the 9th of October. The sessions were holden on the 19th of the same month; and the Court refused to enter on the appeal, being of opinion that the notice was insufficient, the statute 49 G. 3, e. 68, s. 5, requiring that the person aggrieved by such an order should give notice ten clear days before the Quarter Sessions, of his intention to appeal, and the cause and matter thereof. W. E. Taunton having obtained a rule nisi for a mandamus to the justices to receive the Abraham now shewed cause against it, and relied on the words of the statute, which could only be satisfied by a notice wherein there should be ten clear days, exclusive of the day of serving it and the day of holding the sessions.
WE Taunton, contra, contended that the word ‘clear’ meant only complete days ; and referred to the computation of the octave of Saint Hilary, and the quarto die post of the term, to shew that the days of a stated period were in law generally reckoned both inclusively, and that all that the Legislature had in view, in this instance, was to prevent such a computation [582] being used. But the Court were of opinion, that ten clear days meant ten perfect intervening days between the act done and the first day of the sessions, and held, therefore, that the notice was defective ; and they referred to Roberts v. Stacey (13 East, 21).
Rule discharged.
This case is cited by:

  • Applied – Regina -v- Swansea City Council, ex parte Elitestone Ltd CA ([1993] 46 EG 181)
    The company appellant, E, wished to develop its land. The Council had declared it to be a conservation area. E said that they had not given the necessary notice of the meeting of the sub-committee at which the initial decision had been made. E . .

Murray v Elliston; 3 May 1822

References: [1822] EngR 284, (1822) 5 B & A 657, (1822) 106 ER 1331
Links: Commonlii
The defendant represented Lord Byron’s tragedy of ‘Marino Faliero, Doge of Venice,’ on the stage, with some alterations from the printed tragedy.
Held: The manager of a theatre having publicly represented for profit a tragedy, altered and abridged for the stage, without the consent of the owner of the copyright, was not liable to an action, although the tragedy had been previously printed and published for sale.
‘The line of demarcation betwixt law and ethics must be strictly observed, and internal actions must not be made the objects of law. This doctrine was fully recognised by the Romans: whence the maxim, ‘Interna non curat praetor.’ When this fundamental distinction is violated, a door is opened at once to the most injurious and arbitrary invasions of the rights of individuals by the ruling power: and in general, wherever the judicial power is allowed to encroach too far on the widely extended domain of moral duties, it is in danger of becoming inconsistent and unjust.’
This case is cited by:

  • Cited – Prince Albert -v- Strange ChD ((1849) 1 H & Tw 1, 2 De G & SM 293, (1849) 1 Mac & G 25, Bailii, [1849] EWHC Ch J20, [1849] EngR 255, Commonlii, (1849) 41 ER 1171, [1849] EngR 261, Commonlii, (1849) 47 ER 1302, (1849) 2 De Gex & Sim 652)
    The Prince sought to restrain publication of otherwise unpublished private etchings and lists of works by Queen Victoria. The etchings appeared to have been removed surreptitiously from or by one Brown. A personal confidence was claimed.
    Held: . .

Earl Cholmondeley And Ann Seymour Damer v Lord Clinton And Others; 16 Jan 1815

References: [1815] EngR 448, (1815) G Coop 80, (1815) 35 ER 484
Links: Commonlii
A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and the deed of dissolution stipulated that he should not act as solicitor for that party.
This case cites:

This case is cited by:

Harrison v Wright; 11 Feb 1811

References: [1811] EngR 164, (1811) 13 East 343, (1811) 104 ER 402
Links: Commonlii
In assumpsit upon a memorandum for a charter-party, describing the agreement of the defendant, the shipowner, to proceed with all convenient speed to a foreign port, and there load, within 20 running days, a cargo from the plaintiff’s factors, and therewith return home, and in 15 running days deliver the same, on payment of certain freight, concluding with a certain penalty for non-performance : held that the plaintiff might recover damages on the breach of the contract, in the defendant’s not permitting the vessel to proceed on the voyage, beyond the amount of the penalty.
This case is cited by:

  • Cited – Total Transport Corporation -v- Arcadia Petroleum Ltd (‘the Eurus’) CA (Times 16-Dec-97, Gazette 08-Jan-98, Bailii, [1997] EWCA Civ 2754, [1998] 1 Lloyds Rep 351, [1998] CLC 90)
    Arcadia chartered the Eurus, and had succeeded in their application for an award in arbitration proceedings against Total. The award had been reversed, and they now appealed against that order. The parties disputed whether the amount was an award of . .

Earl Cholmondeley v Lord Clinton; 3 Feb 1815

References: [1815] EngR 511, (1815) 19 Ves Jun 261, (1815) 34 ER 515
Links: Commonlii
An Attorney or solicitor cannot give up his client, and act for the opposite party, in any suit between them.
This case cites:

  • See Also – Earl Cholmondeley -v- Lord Clinton (Commonlii, [1789] EngR 567, (1789-1817) 2 Ves Jun Supp 570, (1789) 34 ER 1231)
    A solicitor even though he may not be continuing to act for a particular client, must never be permitted to disclose, to the injury of that client, matters of which he had learned whilst so employed. . .
  • See Also – The Earl of Cholmondeley -v- Lord Clinton (Commonlii, [1813] EngR 513, (1813) 2 Ves & Bea 113, (1813) 35 ER 262)
    . .
  • See Also – Earl Cholmondeley And Ann Seymour Damer -v- Lord Clinton And Others (Commonlii, [1815] EngR 448, (1815) G Coop 80, (1815) 35 ER 484)
    A solicitor for one of the parties in a suit cannot become the solicitor for the opposite party, though he is separated from the partnership which jointly were so employed on the other side, and the remaining partner still continues so employed, and . .

This case is cited by:

The Duke of Bedford v The Trustees of The British Museum; 6 Jul 1822

References: [1822] EngR 457, (1822) 2 My & K 552, (1822) 39 ER 1055
Links: Commonlii
Coram: Lord Eldon
Where land is conveyed in fee, by deed of feoffment, subject to a perpetual ground rent, and the feoffee covenants for himself, his heirs and assigns, with the feoffor, the owner of adjoining lands, his heirs, executors, administrators, and assigns, not to use the land in a particular manner, with a view to the more ample enjoyment by the feoffor of such adjoining lands, and the subsequent acts of the feoffor, or of those claiming under him, have so altered the character and condition of the adjoining lands that, with reference to the land conveyed, the restriction in the covenant ceases to be applicable according to the intent and spirit of the contract, a Court of Equity will not interpose to enforce the covenant but will leave the parties to law.
Whether upon such a covenant there could be any remedy at law against the assigns of the covenantor, quaere.
This case is cited by:

  • Cited – Tulk -v- Moxhay ((1848) 2 Ph 774, [1848] 1 H & TW 105, [1848] 18 LJ Ch 83, [1848] 13 LTOS 21, [1848] 13 Jur 89, [1848] 41 ER 1143 LC, (1848) 11 Beavan 571, Bailii, [1848] EWHC Ch J34, [1848] EngR 1005, Commonlii, (1848) 11 Beav 571, (1848) 50 ER 937, [1848] EngR 1059, Commonlii, (1848) 1 H & Tw 105, (1848) 47 ER 1345, [1848] EngR 1065, Commonlii, (1848) 41 ER 1143)
    A, being seised of the centre garden and some houses in Leicester Square, conveyed the garden to B in fee, and B covenanted for himself and his assigns to keep the garden unbuilt upon.
    Held: A purchaser from B, with notice of the covenant, was . .
  • See Also – The Duke of Bedford -v- British Museum (Commonlii, [1822] EngR 456, (1822) 1 Coop T Cott 90, (1822) 47 ER 761 (B))
    . .

Stevenson v Lambard; 6 Jul 1802

References: [1802] EngR 271, (1802) 2 East 575, (1802) 102 ER 490
Links: Commonlii
Coram: Lord Ellenborough CJ
The landlord brought an action in covenant against an assignee of the term claiming rent. The assignee pleaded (amongst other things) that he had been evicted from half the land by title paramount. The question for the court was whether, in those circumstances, the rent was apportionable so as to relieve the assignee from liability for half the rent.
Held: It was. Lord Ellenborough CJ said that where the action was brought upon the original contract against the original tenant, the rent was not apportionable. After referring to the authorities, he said: ‘So covenant will lie against the assignee of part of an estate for not repairing his part; ‘for it is dividable, and follows the land,’ with which the defendant as assignee is chargeable by the common law, or by the stat. 32 H. 8, c. 37. Congham v. King, Cro. Car. 222. Upon the whole, therefore, we think that the condition of this assignee is in point of law different from that of a lessee chargeable on the privity of contract; and being chargeable on the privity of estate, and in respect of the land, his rent is upon principle apportionable as the rent of a lessee is, or as his rent would be in an action of debt or replevin.’
This case cites:

  • Cited – Congham -v- King ((1631) Cro Car 221)
    An action in covenant would lie against an assignee of part of the land comprised in a lease for not repairing his part. Such a covenant was divisible and followed the land. . .

This case is cited by:

  • Cited – Smith and Another -v- Jafton Properties Ltd CA (Bailii, [2011] EWCA Civ 1251, [2011] WLRD 314)
    The landlord challenged the right of the tenants to acquire the freehold. Lessees had been subdivided the apartments and then, without the landlord’s consent, assigned them. The new arrangement had increased the number of qualifying tenancies so as . .
  • Cited – Lester -v- Ridd CA ([1990] 2 QB 430)
    A farm with 23 acres was let in 1902. The term passed to Alfred and William Burge, a father and son farming in partnership. On the later dissolution of the partnership, the house and five acres of land were assigned to Alfred and the remaining 18 . .

Jones v Morgan; 24 Mar 1783

References: [1783] EngR 55, (1778, 1783) 1 Bro CC 206, (1783) 28 ER 1086
Links: Commonlii
(Lincoln’s Inn Hall) Devise to trustees to pay debts, then to stand seised to the use of A ‘for Life, without impeachment of waste ; after his decease to the use of the heirs male of his body, severally, respectively, and in remainder, is an estate-tail in A. Where tenant for life pays off an incumbrance upon the estate, he shall be considered as a creditor for the money so paid ; but where tenant in tail pays, it is in exoneration of the estate of which he may make himself absolute owner. This is merely a general rule of presumption or primary inference ; and therefore liable to be rebutted by circumstantial evidence to the contrary.

Utterson v Vernon And Others; 5 Feb 1790

References: (1790) 3 Term Reports 539, [1790] EngR 2276, (1790) 3 TR 539, (1790) 100 ER 721
Links: Commonlii
Coram: Lord Kenyon Ch J, Grose, Buller, Ashurst JJ
There had been an agreement to lend to the bankrupt some stock which she undertook to replace. The act of bankruptcy and the declaration of her bankruptcy took place before the stock was replaced. The parties disputed whether the agreement created a provable debt. It was argued that the agreement did not provide for payment of a sum certain but only for the replacement of the stock at some indefinite point in the future. It was therefore a claim for unliquidated damages.
Held: (Majority) There was a provable debt.
Lord Kenyon thought that there was a provable debt in an amount equal to the value of the stock on the day of bankruptcy.
Ashurst J said that the only provable debts were those which could be recovered in the form of an indebitatus assumpsit, thus excluding any claim in damages.
Buller J said that the form of action was not determinative and the real question was whether the amount of the debt could be ascertained without the intervention of a jury.
Grose J said that a creditor could prove for a claim in damages provided that they were in a liquidated sum.
Lord Kenyon CJ said: ‘The question in this case depends on a simple principle of law, which cannot be doubted. It is clear, that where one person, previous to his bankruptcy, is indebted to another in a precise sum which is ascertained, the latter may prove his debt under the commission: but it is as clear, that where there is only a cause of action existing, where the debt is to arise on a stipulation which has not been broken previous to the time of the bankruptcy, and where the debt remains to be inquired into, there the creditor cannot prove his debt under the commission, and the demand will remain undischarged by the certificate.’
This case is cited by:

  • Cited – McGuinness -v- Norwich and Peterborough Building Society CA (Bailii, [2011] EWCA Civ 1286, [2012] BPIR 145, [2011] NPC 117)
    The appellant had guaranteed his brother’s loan from the respondent, and the guarantee having been called in and unpaid, he had been made bankrupt. He now appealed saying that the guarantee debt, even though of a fixed amount could not form the . .

In re Blenheim Leisure (Restaurants) Ltd (No 3); 9 Nov 1999

References: Times 09-Nov-1999
Coram: Neuberger J
Neuberger J gave examples of cases where a judge might revisit his decision: a plain mistake by the court, the parties’ failure to draw to the court’s attention a plainly relevant fact or point of law and the discovery of new facts after judgment was given.
This case is cited by:

  • Cited – Re L and B (Children) SC (Bailii, [2013] UKSC 8, [2013] 1 WLR 634, WLRD, Bailii Summary, UKSC 2012/0263, SC Summary, SC, [2013] WLR(D) 69, [2013] 2 All ER 294, [2013] 2 FCR 19, [2013] 2 FLR 859, [2013] Fam Law 664)
    The court was asked as to the extent to which a court, having once declared its decision, could later change its mind. Though this case arose with in care proceedings, the court asked it as a general question. The judge in a fact finding hearing in . .

Ritchie v M’Intosh; 10 Jan 1881

References: (1881) 8 R 747
Coram: Lord Young
Lord Young said that absolute impecuniosity is never the sole reason for making an order requiring payment of a sum by way of security for the costs on an appeal: ‘The conduct of the cause may be such, or other matters may transpire, which may make such an order necessary, but absolute impecuniosity will never be taken as the sole ground for making a party find caution for expenses.’
This case is cited by:

Iraqi Ministry of Defence v Arcepey Shipping ‘The Angel Bell’: 1979

References: [1979] 2 Lloyd’s Rep 491, [1981] 1 QB 65
Coram: Donaldson J, Robert Goff J
Creditors of the defendant who was subject to a Mareva injunction applied to the court to authorise the repayment of a loan out of monies otherwise subject to the order.
Held: The purpose of a freezing order is to avoid dissipation of a defendant’s assets in order to avoid a judgment, it is only bona fide debts in the ordinary course of business of a defendant whose assets are frozen that will be permitted to be paid out, including debts which are not themselves enforceable.
Robert Goff J said: ‘Mr. Hobhouse submitted that the purpose of the Mareva jurisdiction was to freeze a foreign defendant’s assets in this country to ensure that there is a fund available in this country from which the plaintiff will be able to satisfy a judgment. In support of this he relied in particular on the form of the order usually made in these cases which restrains the defendant from dealing with his assets within the jurisdiction and from removing his assets from the jurisdiction. I do not, however, see that the usual form of the order as such assists his argument. As was made plain by Mustill J. in the Third Chandris case, the point of the Mareva jurisdiction is to proceed by stealth, to pre-empt any action by the defendant to remove his assets from the jurisdiction. To achieve that result the injunction must be in a wide form because, for example, a transfer by the defendant to a collaborator in the jurisdiction could lead to the transfer of the assets abroad by that collaborator. But it does not follow that, having established the injunction, the court should not thereafter permit a qualification to it to allow a transfer of assets by the defendant if the defendant satisfies the court that he requires the money for a purpose which does not conflict with the policy underlying the Mareva jurisdiction.’
and ‘All the interveners are asking is that the defendants should be free to repay such a loan if they think fit to do so, not that the loan transaction should be enforced. For a defendant to be free to repay a loan in such circumstances is not inconsistent with the policy underlying the Mareva jurisdiction. He is not in such circumstances seeking to avoid his responsibilities to the plaintiff if the latter should ultimately obtain a judgment; on the contrary, he is seeking in good faith to make payments which he considers he should make in the ordinary course of business. I cannot see that the Mareva jurisdiction should be allowed to prevent such a payment. To allow it to do so would be to stretch it beyond its original purpose so that instead of preventing abuse it would rather prevent businessmen conducting their businesses as they are entitled to do.’
This case is cited by:

  • Cited – Anton Durbeck Gmbh -v- Den Norske Bank Asa ComC (Bailii, [2005] EWHC 2497 (Comm))
    The defendant bank arrested a ship carrying the claimant’s load of bananas. The cargo deteriorated while under arrest and was lost. It was not insured. The consignee sought damages from the arresting bank on the ground that it wrongfully interfered . .

Attwood v Small And Others; 9 Aug 1827

References: [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389
Links: Commonlii
An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
Held: That although with the clause referred to, there would be more than 1080 words, a £1 stamp was proper, as that clause ought not to be reckoned.
This case is cited by:

  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B))
    . .
  • See Also – Attwood -v- Small (Commonlii, [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A))
    Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
  • See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
    Amendment of pleadings . .
  • See Also – Small And Others -v- Attwood And Others (, Commonlii, [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051)
    Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and . .
  • See Also – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
    The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
    Held: . .
  • See Also – Attwood -v- Small etc (, Commonlii, [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684)
    . .
  • See Also – Attwood -v- Small (, Commonlii, [1840] EngR 125, (1840) 1 Man & G 279, (1840) 133 ER 340)
    . .

Regina v Pan; 29 Jun 2001

References: [2001] 2 SCR 344, 200 DLR (4th) 577, 155 CCC (3d) 97, 2001 SCC 42
Links: Vcanlii
Coram: Arbour J
(Supreme Court of Canada) The court considered the reason behind the common law rule against a court examining the activities of a jury: ‘the rule seeks to preserve the secrecy of the jury’s deliberations, while ensuring that those deliberations remain untainted by contact with information or individuals from outside the jury. As a result, where the evidence establishes that the jury has been exposed to outside information or influences, it will generally be admissible.’ However the distinction between intrinsic and extrinsic matters ‘is not always self-evident and it is not possible to articulate with complete precision what is contemplated by the idea of a matter ‘extrinsic’ to the jury deliberation process.’ It is a distinction which is at times ‘difficult to discern.’
Arbour J identified the principal reasons for the common law rule of jury secrecy: ‘The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime. In my view, this rationale is sound, and does not require empirical confirmation.
The Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy.
The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors …, and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably. This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy.’
This case is cited by:

  • Cited – Pintori, Regina -v- CACD (Bailii, [2007] EWCA Crim 1700)
    The defendant appealed his conviction for possession of class A drugs, saying that the drugs found had belonged to somebody who had stayed at his flat whilst he had been away. One of the jurors later told a police officer that she had known through . .
  • Cited – Seckerson & Times Newspapers Ltd -v- The United Kingdom ECHR (33510/10, Bailii, [2012] ECHR 241, 32844/10)
    The first applicant had been chairman of a jury and had expressed his concerns about their behaviour to the second applicant who published them. They were prosecuted under the 1981 Act. They had said that no details of the deliberations had been . .

Johnson v Johnson; 7 Sep 2000

References: (2000) 201 CLR 488, [2000] 74 ALJR 1380, [2000] 174 ALR 655, [2000] HCA 48
Links: Austlii
Coram: Kirby J
(High Court of Australia) When looking to test whether a member of the public would perceive bias in a court, it is unnecessary to delve into the characteristics to be attributed to the fair-minded and informed observer. One is entitled to conclude that such an observer will adopt a balanced approach. ‘A reasonable member of the public is neither complacent nor unduly sensitive or suspicious.’
This case is cited by:

  • Cited – Lawal -v- Northern Spirit Limited HL (House of Lords, Gazette 17-Jul-03, Bailii, [2003] UKHL 35, [2003] ICR 856, [2004] 1 All ER 187)
    Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
    Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
  • Cited – PD, Regina (on the Application of) -v- West Midlands and North West Mental Health Review Tribunal Admn (Bailii, [2003] EWHC 2469 (Admin), Times 31-Oct-03, Gazette 02-Jan-04)
    The claimant was detained as a mental patient. He complained that a consultant employed by the NHS Trust which detained him, also sat on the panel of the tribunal which heard the review of his detention.
    Held: Such proceedings did engage the . .
  • Cited – Gillies -v- Secretary of State for Work and Pensions HL (Bailii, [2006] UKHL 2, Times 30-Jan-06, [2006] 1 WLR 1781, 2006 SC (HL) 71)
    The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
  • Cited – Helow -v- Secretary of State for the Home Department and Another HL (Bailii, [2008] UKHL 62, HL, Times, [2008] 1 WLR 2416, 2008 SCLR 830, (2008) 152(41) SJLB 29, [2009] 2 All ER 1031, 2009 SC (HL) 1, 2008 GWD 35-520, 2008 SLT 967)
    The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .

The Trustees Of The British Museum v White; 8 Jul 1826

References: [1826] EngR 1073, (1826) 2 Sim & St 594, (1826) 57 ER 473
Links: Commonlii
William White, deceased, devised a freehold estate to trustees, in trust to sell it, and pay the proceeds, together with his residuary personal estate, to the Trustees of the British Museum, to be by them employed for the benefit of that institution. The question was, whether this devise was void under the 9th Geo, 2d, c. 361.
It was argued that the British Museum is not a charitable Institution. It was founded by the munificence of the State for the benefit of the public. Every gift for the use of the publie is not, necessarily, a charity. There must be something in the nature of relief to constitute a charity. Gifts to support a public bridge, and for the repair of sea-banks, have, on that principle, been held to be charitable gifts.
So schools for learning have been held to be charitable institutions ; not so schools of art (Duke, 128). Now this is a school of art. Besides, the museum is national property ; and, for that reason, it was held in Thelluseon v Woodford (4 Ves. 227), that the devise to the King, for the use of the Sinking Fund, was good.
Held: Despite these arguments, the gift was for charitable purposes, though the gift then failed onder the 1736 Act.
Statutes: Mortmain Act 1736, Statute of Charitable Uses 1601
This case is cited by:

Garnett v Ferrand And Another; 28 May 1827

References: [1827] EngR 492, (1827) 6 B & C 611, (1827) 108 ER 576
Links: Commonlii
Coram: Lord Tenterden CJ
No action will lie against the Judge of a Court of Record for an act done by him in his judicial capacity, and therefore trespass cannot be maintained against a coroner for turning a person out of a room where he is about to take an inquisition.
Lord Tenterden CJ said: ‘This freedom from action and question of the suit of an individual is given by the law to the Judges, not so much for their own sake as for the sake of the public, and for the advancement of justice, that being free from actions, they may be free in thought and independence in judgment, as all who are to administer justice ought to be.’
‘There is not any occasion to inquire into the power of the coroner before Magna Charta, for by c 17 his power to hold pleas of the Crown was taken away. ‘No sheriff, constable, escheator, coroner, nor any other our bailiffs, shall hold pleas of our Crown.’ Upon this, Lord Coke says, ‘And what authority had the coroner? The same authority he now hath, in case when any man come to violent or untimely death, super visum corporis, &e., abjurations and outlawries, &e., appeals of death by bill, &e. This authority of the coroner, viz. the coroner solely to take an indictment super visum corporis, and to take an appeal, and to enter the appeal ; and the count remaineth to this day. But he can proceed no further, either upon the indictment or appeal, but to deliver them over to the justices: and this is saved to them by Stat. Westm. 1, c. 10.’It may, however, be said, that as to some matters arising out of this inquiry, the inquest of the coroner is final, ex. gr., that the deceased was felo de se ; that a certain thing was deodand; that a certain person was guilty, and fled for it. There are one or two dicta in the books that these findings are not traversable. But it appears by the best authorities, that the inquests of the coroner are in no case conclusive, and that any one affected by them, either collaterally or otherwise, may deny their authority, and put them in issue .’

Small And Others v Attwood And Others; 1 Nov 1832

References: , [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051
Links: Commonlii
Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and the other parties. Where the partners in a Company or partnership are numerous, a bill may be filed by some of the partners on behalf of themselves and the other partners to rescind the contract. In a case where it is manifest, from the circumstances, and the evidence, that it is for the benefit of all the partners that the contract should be rescinded. A contract for the sale of iron mines was rescinded on the ground of fraudulent misrepresentations of the value of the estate, and of the prices of ironstone and other materials, and of the quantities of materials required for the manufacture of iron, notwithstanding possession had been taken, the mines worked, and other acts of ownership had been exercised, and notwithstanding some acts in confirmation of the contract.
This case cites:

  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B))
    . .
  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389)
    An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
    Held: That although with the clause referred . .
  • See Also – Attwood -v- Small (Commonlii, [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A))
    Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
  • See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
    Amendment of pleadings . .

This case is cited by:

  • Cited – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
    The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
    Held: . .
  • See Also – Attwood -v- Small etc (, Commonlii, [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684)
    . .
  • See Also – Attwood -v- Small (, Commonlii, [1840] EngR 125, (1840) 1 Man & G 279, (1840) 133 ER 340)
    . .

Vansandau and Brown v Browne; 24 Nov 1832

References: , [1832] EngR 869, (1832) 9 Bing 403, (1832) 131 ER 667
Links: Commonlii
An attorney is not compelled to proceed to the end of a suit in order to be entitled to his costs, but may, upon reasonable cause and reasonable notice, abandon the conduct of the suit, and in such case may recover his costs for the period during which he was employed.
This case is cited by:

  • Cited – Underwood, Son & Piper -v- Lewis CA ([1894] 2 QB 306)
    Solicitors had declined to continue to act for their client before the litigation in which they were acting had been completed. They brought an action for the amount of their bill of costs for work done to date. The trial judge held that a solicitor . .
  • Cited – Richard Buxton (Solicitors) -v- Mills-Owens and Another CA (Bailii, [2010] EWCA Civ 122, Times, [2010] WLR (D) 49, WLRD, [2010] 17 EG 96, [2010] 3 Costs LR 421, [2010] CP Rep 26, [2010] 1 WLR 1997, [2010] 9 EG 166)
    The solicitors felt that the instructions received from their client were to pursue points which neither they nor counsel thought were properly arguable. They withdrew from the case, and now appealed against a refusal of their costs on the basis . .

Scottish Equitable v Derby; 16 Mar 2001

References: [2001] 3 All ER 818, [2001] EWCA Civ 369, [2001] OPLR 181, [2001] 2 All ER (Comm) 274, [2001] Pens LR 163
Links: Bailii
Coram: Robert Walker LJ
The claimant company sought repayment of a sum paid in error to the defendant. She replied that she had changed her position as a result of and relying upon the payment.
Held: The court gave as ‘the most obvious example’ of the kind of decision made by a payee which, even though it involves no immediate expenditure, will nonetheless give rise to the defence of change of position, the voluntary giving up of a job at an age when it would not be easy to get new employment.
This case cites:

  • Cited – Lipkin Gorman (a Firm) -v- Karpnale Ltd HL ([1991] 2 AC 548, Bailii, [1988] UKHL 12, [1991] 3 WLR 10)
    The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .
  • Cited – Avon County Council -v- Howlett CA ([1983] 1 WLR 605, [1983] 1 All ER 1073)
    The plaintiff, through its computerised system for the payment of wages, had overpaid the defendant to the extent of £1,007. He had suffered an injury and been absent from work. The Council sought to recover the overpayment on the grounds that . .

This case is cited by:

  • Cited – Commerzbank Ag -v- Price-Jones CA (Bailii, Times 26-Nov-03, [2003] EWCA Civ 1663)
    The respondent had received a bonus of £250,000. His employers wrote to him in error increasing it. He later chose to stay rather than take redundancy because he now expected the full amount. He resisted an order for restitution. The employer . .

Hanway v Boultbee; 30 Nov 1830

References: [1830] 1 M and Rob 15, [1830] EngR 887, (1830) 4 Car & P 350, (1830) 172 ER 735 (B), [1830] EngR 888, (1830) 174 ER 6
Links: Commonlii, Commonlii
A person may use a proportionate degree of force to defend himself, or others, from attack or the threat of imminent attack, or to defend his property or the property of others in the same circumstances.
This case is cited by:

Three Rivers District Council and others v The Governor and Company of the Bank of England (No 6): CA 1 Mar 2004

References: [2004] EWCA Civ 218, Times 03-Mar-2004, Gazette 18-Mar-2004, [2004] 3 All ER 168, [2004] QB 916, [2004] 2 WLR 1065
Links: Bailii
Coram: Lord Justice Longmore Lord Phillips Of Worth Matravers, Mr Lord Justice Thomas
The Bank of England had sought assistance from its lawyers to prepare for a private non-statutory enquiry. The claimant sought disclosure of that advice. The defendant bank claimed legal professional privilege.
Held: Not all advice given by a solicitor to his client attracts privilege. The broad protection which did exist did not extend to situations where the dominant purpose was not the obtaining of legal advice and assistance in relation to legal rights and obligations. What was protected was advice which required a knowledge of the law. Here, the advice was on matters of presentation, though that might have included matters of law. That possibility would not protect the entire range of assistance given. Where the advice was as to how the witness might present his case so as perhaps to avoid criticism, that should not itself attract privilege. The inquiry was not concerned with legal rights and liabilities. The communications did not in general attract privilege.
Statutes: Tribunals of Inquiry Evidence Act 1921 1(3)
This case cites:

  • Cited – Three Rivers District Council and others -v- The Governor & Company of the Bank of England (No 7) CA (Bailii, [2003] EWCA Civ 474, Times 19-Apr-03, Gazette 12-Jun-03, [2003] 3 WLR 667, [2003] QB 1556, [2003] CPLR 349)
    Documents had been prepared by the respondent to support a request for legal advice in anticipation of the Bingham enquiry into the collapse of BCCI.
    Held: Legal advice privilege attached to the communications between a client and the . .
  • Appeal from – Three Rivers District Council -v- Bank of England (No 5) ComC ([2003] EWHC 2565 (Comm))
    The defendant bank sought protection from disclosure of advice it had received from its solicitors.
    Held: To the extent that the communications were for the purpose of seeking advice as to its legal rights and obligations, the communications . .
  • Cited – Balabel -v- Air India CA ([1988] Ch 317)
    When considering claims for legal professional privilege, the court should acknowledge the ‘continuity of communications’. However, where the traditional role of a solicitor had expanded, the scope of legal professional privilege should not be . .
  • Cited – Greenhough -v- Gaskell CA ((1833) 1 My & K 98, Commonlii, [1833] EngR 105, (1833) Coop T Br 96, (1833) 47 ER 35)
    The question arose whether the defendant solicitor, sued for fraudulently concealing that his client was insolvent and thereby inducing the plaintiff to issue a promissory note on the client’s behalf, could claim privilege in respect of . .
  • Cited – Carpmael -v- Powis ((1846) 1 Ph 687)
    The court discussed the extent and scope of legal professional privilege: ‘I am of the opinion that the privilege extends to all communications between a solicitor, as such, and his client, relating to matters within the ordinary scope of a . .
  • Cited – Wheeler -v- Le Marchant CA ((1881) 17 Ch D 675)
    Advice was given to the defendant trustee of the will of a Mr Brett in the course of its administration in the Chancery Division; for the purpose of that advice information was sought from both the former and the current estate-agent and surveyor. . .
  • Cited – Minter -v- Priest HL ([1930] AC 558)
    The House was asked whether a conversation between a person seeking the services of a solicitor in relation to the purchase of real property and the solicitor was privileged in circumstances where the solicitor was being requested to lend the . .
  • Cited – Great Atlantic Insurance -v- Home Insurance CA ([1981] 2 All ER 485, [1981] 2 Lloyds Rep 138, [1981] 1 WLR 529)
    The defendants sought to enter into evidence one part of a document, but the plaintiffs sought to have the remainder protected through legal professional privilege.
    Held: The entirety of the document was privileged, but by disclosing part, the . .
  • Cited – Wilson -v- Northampton and Banbury Junction Railway Co ((1872) LR 14 Eq 477, (1874) LR 9 Ch App 279)
    Lord Selborne LC said: ‘It is of the highest importance . . that all communications between a solicitor and a client upon a subject which may lead to litigation should be privileged, and I think the court is bound to consider that . . almost any . .
  • Appealed to – Three Rivers District Council and others -v- Governor and Company of the Bank of England (No 6) HL (House of Lords, [2004] UKHL 48, Times 12-Nov-04, Bailii, [2004] 3 WLR 1274, [2005] 1 AC 610)
    The Bank anticipated criticism in an ad hoc enquiry which was called to investigate its handling of a matter involving the claimant. The claimant sought disclosure of the documents created when the solicitors advised employees of the Bank in . .

This case is cited by:

Green v Briscoe; 9 May 2005

References: Lawtel 09-May-2005, [2005] All ER (D) 96
The Court had dismissed an action brought to obtain an order pronouncing against a will, revocation of the probate granted in respect of the will and a declaration of intestacy. The defendant executor had counterclaimed for a grant of probate in solemn form. One member of the family had acknowledged service of the action and had indicated that he wanted to be satisfied that the will had been properly executed but did not intend to put forward any positive case.
Held: The action was dismissed, but the court denied permission to the defendant to discontinue the counterclaim as against the family member, because a serious issue had been raised as to the validity of the will. The defendant executor was required to continue to seek an order for a grant of probate in solemn form.
This case is cited by:

  • See Also – Briscoe -v- Green ChD (Bailii, [2006] EWHC 2116 (Ch))
    . .
  • Cited – Wylde -v- Culver ChD (Bailii, [2006] EWHC 923 (Ch), [2006] 1 WLR 2674, [2006] 4 All ER 345)
    The claimant sought to discontinue his probate action on the day of trial, and an order as to costs.
    Held: The discontinuance should be allowed, there being no public interest to be served in a continuance. As to costs ‘in probate actions . .

Attwood v Small; 12 Dec 1827

References: [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A)
Links: Commonlii
Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly inadequate; yet the Court refused to give extra costs but reserved the consideration of them, until the hearing of the cause.
This case cites:

  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389)
    An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
    Held: That although with the clause referred . .
  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B))
    . .

This case is cited by:

  • See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
    Amendment of pleadings . .
  • See Also – Small And Others -v- Attwood And Others (, Commonlii, [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051)
    Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and . .
  • See Also – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
    The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
    Held: . .
  • See Also – Attwood -v- Small etc (, Commonlii, [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684)
    . .
  • See Also – Attwood -v- Small (, Commonlii, [1840] EngR 125, (1840) 1 Man & G 279, (1840) 133 ER 340)
    . .

Attwood v Small And Others; 8 Nov 1827

References: [1827] EngR 729, (1827) 7 B & C 390, (1827) 108 ER 768 (B)
Links: Commonlii
This case cites:

  • See Also – Attwood -v- Small And Others (Commonlii, [1827] EngR 659, (1827) 3 Car & P 208, (1827) 172 ER 389)
    An agreement, contained by itself less than 1080 words, but there was in it a stipulation that a clause in a previous agreement, which was duly stamped, should be taken as part of the new agreement.
    Held: That although with the clause referred . .

This case is cited by:

  • See Also – Attwood -v- Small (Commonlii, [1827] EngR 853, (1827) 2 Y & J 72, (1827) 148 ER 837 (A))
    Where a great number of exceptions were taken to an answer, and shortly before the argument the defendant submitted to answer them, in consequence of which, it was urged, that the answer was clearly evasive, and that the ordinary costs were greatly . .
  • See Also – Small And Others -v- Attwood And Others (Commonlii, [1828] EngR 545, (1828) 2 Y & J 512, (1828) 148 ER 1021 (B))
    Amendment of pleadings . .
  • See Also – Small And Others -v- Attwood And Others (, Commonlii, [1832] EngR 776, (1831-1832) You 407, (1832) 159 ER 1051)
    Where a contract is entered into for the purchase of an estate by certain persons in their own names, but in fact on their own account, and also as agents for other parties, a bill to rescind the contract may be filed in the names of the agents and . .
  • See Also – Attwood -v- Small and Others HL (Bailii, [1838] UKHL J14, 7 ER 684, Bailii, [1838] UKHL J60)
    The plaintiffs had bought land including iron mines from the defendants. They sought and were given explicit re-assurances about the mine’s capacity, but these proved false after the plaintiffs had begun to work the mine themselves.
    Held: . .
  • See Also – Attwood -v- Small etc (, Commonlii, [1838] EngR 515, (1835-40) 6 Cl & Fin 232, (1838) 7 ER 684)
    . .
  • See Also – Attwood -v- Small (, Commonlii, [1840] EngR 125, (1840) 1 Man & G 279, (1840) 133 ER 340)
    . .

M’Mohan v Burchell; 30 Apr 1845

References: [1845] EngR 724, (1845) 1 Holt Eq 186, (1845) 71 ER 716
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .

This case is cited by:

  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
  • See Also – M’Mohon -v- Burchell ([1846] EngR 760, Commonlii, (1846) 5 Hare 322, (1846) 67 ER 936)
    . .
  • See Also – William M’Mahon And Wife -v- Burchell And Another ([1846] EngR 1180, Commonlii, (1846) 2 Ph 127, (1846) 41 ER 889)
    . .

M’Mohon v Burchell; 5 Jun 1846

References: [1846] EngR 760, (1846) 5 Hare 322, (1846) 67 ER 936
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .

This case is cited by:

William M’Mahon And Wife v Burchell And Another; 4 Dec 1846

References: [1846] EngR 1180, (1846) 2 Ph 127, (1846) 41 ER 889
Links: Commonlii
This case cites:

  • See Also – MacMahon -v- Burchell ([1843] EngR 526, Commonlii, (1843) 3 Hare 97, (1843) 67 ER 312)
    A share of rent due from the occupying tenant of certain premises to the estate of a testatrix, who was one of several tenants in common of the same premises, allowed to be set off by her executors in a suit for a legacy bequeathed by the testatrix . .
  • See Also – M’Mohan -v- Burchell ([1845] EngR 724, Commonlii, (1845) 1 Holt Eq 186, (1845) 71 ER 716)
    . .
  • See Also – M’Mahon -v- Burchell CA ((1846) 1 Coop t Cott 457 (47 ER 944), SC 2 Ph 127 (41 ER 889))
    Terence M’Mahon had left his house in St Christopher to his seven children as tenants in common. One of them (William) frequently occupied the house, three others occupied it occasionally, and three not at all. The executors of one of the children . .
  • See Also – M’Mohon -v- Burchell ([1846] EngR 760, Commonlii, (1846) 5 Hare 322, (1846) 67 ER 936)
    . .

The Attorney-General v St Cross Hospital; 24 Feb 1854

References: [1854] EngR 303, (1854) 18 Beav 475, (1854) 52 ER 187
Links: Commonlii
The Attorney-General attends the settlement of a scheme of a charity to protect the interests of all, and the Court refused to allow a member of a corporation, consisting of a master and thirteen brethren, to attend the settlement of a scheme of the chanty, even at his own expense.

Regina, On The Prosecution of The Duke Of Brunswick v Lowe And Clements; 3 May 1853

References: [1853] EngR 512, (1853) 8 Exch 697, (1853) 155 ER 1532
Links: Commonlii
An outlaw cannot enforce payment of damages recovered in an action of libel by sciere facias on th erecognisance of the Crown, under the 60 Geo J c ( s8 and 11 Geo 4 & 1 Will 4, e 73, s 3. And therefore, where notice of a rule to stay proceedings on the ground of his outlawry was served on the Attorney-General and he did not appear, the Court made the rule absolute.