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Lexi Holdings v Luqman and Another: ChD 16 Jul 2008

References: [2008] EWHC 1639 (Ch), [2008] 2 BCLC 725
Links: Bailii
Judges: Briggs J
Statutes: Civil Procedure Rules 24
Jurisdiction: England and Wales
This case cites:

  • See Also – Lexi Holdings Plc v Luqman and others ChD 2-Jul-2007 (, [2007] EWHC 1508 (Ch))
    Application was made for the committal to prison for contempt of court by the first defendant for breaches of court orders. . .
  • See Also – Lexi Holdings Plc v Luqman and others ChD 19-Oct-2007 (, [2007] EWHC 2355 (Ch))
    . .
  • See Also – Lexi Holdings Plc v Luqman and others ChD 16-Nov-2007 (, [2007] EWHC 2652 (Ch))
    . .
  • Cited – Lexi Holdings Plc v Luqman and others ChD 15-Jan-2008 (, [2008] EWHC 151 (Ch))
    Whether a prisoner serving a sentence for contempt of court is subject to the same rules as to early release etc as other prisoners.
    Held: ‘paragraph 5.2 of PSO 6300 is unlawful in so far as it purports to require, or is interpreted by the . .
  • See Also – Lexi Holdings v Luqman and others CA 6-Aug-2007 (, [2007] EWCA Civ 888)
    Application for permission to appeal – granted. . .
  • See Also – Lexi Holdings Plc v Luqman and others CA 29-Aug-2007 (, [2007] EWCA Civ 1070)
    Claim by valuers on administration of mortgage company for sums paid to the company by lenders to pay for valuations. . .

This case is cited by:

  • See Also – Lexi Holdings Plc v Luqman and others CA 26-Feb-2009 (, [2009] EWCA Civ 117)
    Attempts by company administrators to recover sums allegedly misapplied by former directors. . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.270851

Lexi Holdings Plc v Luqman and others: ChD 15 Jan 2008

Whether a prisoner serving a sentence for contempt of court is subject to the same rules as to early release etc as other prisoners.
Held: ‘paragraph 5.2 of PSO 6300 is unlawful in so far as it purports to require, or is interpreted by the Prison Service as requiring, the permission of the sentencing judge to be obtained before a contempt prisoner may be granted temporary release. The permission which has to be obtained is that of the Secretary of State or his representative acting in accordance with Rule 9. ‘
References: [2008] EWHC 151 (Ch)
Links: Bailii
Judges: Henderson J
Statutes: Contempt of Court Act 1981
Jurisdiction: England and Wales
This case cites:

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.264105

Highland Crusader Offshore Partners Lp and Others v Deutsche Bank Ag and Another: CA 13 Jul 2009

The appellant challenged an anti-suit injunction granted to the bank to prevent it pursuing litigation in Texas when the bank issued proceedings here.
Held: The appeal succeeded. The clause under which the request for the injunction was brought was a non-exclusive jurisdiction clause and as such could not be used to base such an injunction. The foreign proceedings were not abusive and should be allowed to proceed.
References: [2009] EWCA Civ 725, Times 15-Oct-2009, [2010] 1 WLR 1023, [2009] CP Rep 45, [2009] 2 Lloyd’s Rep 617, [2009] 2 All ER (Comm) 987, [2009] 2 CLC 45
Links: Bailii
Judges: Lord Justice Carnwath, Lord Justice Toulson and Lord Justice Goldring
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.347688

Office of Fair Trading v Abbey National Plc and others: ComC 21 Jan 2009

References: [2009] EWHC 36 (Comm)
Links: Bailii
Jurisdiction: England and Wales
This case cites:

  • See also – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008 (, [2008] EWHC 875 (Comm), Times 29-Apr-08, Gazette 08-May-05, [2008] 2 All ER (Comm) 625)
    The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
  • See also – Office of Fair Trading v Abbey National Plc and others ComC 8-Oct-2008 (, [2008] EWHC 2325 (Comm))
    The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties. . .

This case is cited by:

  • See Also – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009 (, [2009] EWCA Civ 116, Times 03-Mar-09, [2009] 2 CMLR 30, [2009] 1 All ER (Comm) 1097, [2009] 2 WLR 1286)
    The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
  • See also – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009 (, [2009] UKSC 6, Times 26-Nov-09, [2009] 3 WLR 1215)
    The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.293978

Office of Fair Trading v Abbey National Plc and others: ComC 8 Oct 2008

The director sought a further judgment as to whether charges imposed by banks on a customer taking an unauthorised overdraft, and otherwise were unlawful penalties.
References: [2008] EWHC 2325 (Comm)
Links: Bailii
Judges: Andrew Smith J
Jurisdiction: England and Wales
This case cites:

  • See Also – Office of Fair Trading v Abbey National Plc and seven Others ComC 24-Apr-2008 (, [2008] EWHC 875 (Comm), Times 29-Apr-08, Gazette 08-May-05, [2008] 2 All ER (Comm) 625)
    The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .
  • Cited – Wallersteiner v Moir CA 1974 ([1974] 1 WLR 991)
    The making of a declaration is a judicial act. A shareholder is entitled to bring a derivative action on behalf of the company when it is controlled by persons alleged to have injured the company who refuse to allow the company to sue. It is an . .
  • Cited – Cooden Engineering Co Ltd v Stanford CA 1953 ([1953] 1 QB 86, [1952] 2 All ER 915)
    A payment to be made on a wrongful termination of a lease by a tenant, will attract consideration of the law of penalties, for notwithstanding the requirement for acceptance of it, the amount to be paid is, ‘plainly a sum to be paid in consequence . .
  • Cited – Jervis v Harris CA 9-Nov-1995 (Ind Summary 04-Dec-95, Gazette 24-Jan-96, Times 14-Nov-95, , [1995] EWCA Civ 9, [1996] Ch 195, [1996] 2 WLR 220, [1996] 1 All ER 303, [1996] 1 EGLR 78, [1996] 10 EG 159)
    A provision in the lease obliged a tenant to carry out repairs and provided that if he did not do so, the landlord might do the repairs and recover from the tenant the costs and expenses of doing so.
    Held: The provision was not a penalty. The . .

This case is cited by:

  • See Also – Abbey National Plc and others v The Office of Fair Trading CA 26-Feb-2009 (, [2009] EWCA Civ 116, Times 03-Mar-09, [2009] 2 CMLR 30, [2009] 1 All ER (Comm) 1097, [2009] 2 WLR 1286)
    The OFT had sought to enquire as to the fairness of the terms on which banks conducted their accounts with consumers, and in particular as to how they charged for unauthorised overdrafts. The banks denied that the OFT had jurisdiction, and now . .
  • See also – Office of Fair Trading v Abbey National Plc and others ComC 21-Jan-2009 (, [2009] EWHC 36 (Comm))
    . .
  • See also – Office of Fair Trading (OFT) v Abbey National Plc and Others SC 25-Nov-2009 (, [2009] UKSC 6, Times 26-Nov-09, [2009] 3 WLR 1215)
    The banks appealed against a ruling that the OFT could investigate the fairness or otherwise of their systems for charging bank customers for non-agreed items as excessive relative to the services supplied. The banks said that regulation 6(2) could . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.277032

Wilson, Regina v: CACD 28 Apr 2009

Appeal from whole life sentence on conviction of attempted rape, wounding with intent, and causing a person to engage in sexual activity without her consent. He had been deported from Australia after release from prison for murder and very serious sex assaults. It was conceded that he satisfied the dangerousness criteria.
Held: Taken on their own, these offences would not justify a whole life term. However, these crimes were not isolated. They were committed, shortly after his return to the community, by a man with a lengthy criminal record which included offences of the rape of, and the murder of, elderly females. The punitive element was set at 20 years with a minimum of ten years to be served.
References: [2010] 1 Cr App Rep (S) 11, [2009] Crim LR 665
Links: Bailii
Judges: Lord Judge LCJ
Statutes: Criminal Justice Act 2003 225
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.347689

Enfield London Borough Council v French: CA 1984

In considering a request for a possession order for which it was a requirement that an odder of suitable alternative accomodation, the question of whether the accommodation was suitable should be decided before the question whether it was reasonable to make an order for possession.
References: (1984) 17 HLR 211
Judges: Stephenson LJ
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Bracknell Forest Borough Council v Green and Another CA 20-Mar-2009 (, [2009] EWCA Civ 238, [2009] CP Rep 31, [2009] PTSR CS49, [2009] NPC 45, [2009] HLR 38)
    The council sought possession of the property saying that the three bedroomed property was underused by the tenant and his sister. The respondents said that it was not too extensive, and that no satisfactory alternative accommodation had been . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.323742

Russian Commercial and Industrial Bank v British Bank of Foreign Trade: HL 1921

The court considered how the court should exercise any jurisdiction to make declarations.
Held: The House (Lord Dunedin) referred, with approval, to the approach taken by the Scottish Courts, identifying three propositions, namely that the question must be real and not a theoretical question; the person raising it must have a real interest to raise it; and he must be able to secure a proper contradictor ie someone presently existing who has a true interest to oppose the declaration sought.
Lord Dunedin spoke of the Scottish action of declarator: ‘The rules that have been elucidated by a long course of decisions in the Scottish courts may be summarized thus: The question must be a real and not a theoretical question; the person raising it must have a real interest to raise it; he must be able to secure a proper contradictor, that is to say, someone presently existing who has a true interest to oppose the declaration sought.’
References: [1921] 2 AC 438
Judges: Lord Dunedin
Jurisdiction: Scotland
This case is cited by:

  • Cited – Point Solutions Ltd v Focus Business Solutions Ltd and Another ChD 16-Dec-2005 (, [2005] EWHC 3096 (Ch))
    It was claimed that the defendant’s computer software infringed the copyright in software owned by the claimant. A declaration was sought beacause of allegations that assertions about infringement had been made to third parties.
    Held: The . .
  • Approved – Vine v National Dock Labour Board HL 1957 ([1957] AC 488, [1956] 1 QB 658, [1956] 3 All ER 939, [1957] 2 WLR 106)
    The plaintiff was employed under a statutory scheme for the employment of dock labourers. He appealed against a finding that the rules on dismissal contained within the scheme were not the only ones appertaining.
    Held: (reversing the majority . .
  • Cited – F v West Berkshire Health Authority HL 17-Jul-1990 ([1990] 2 AC 1, , [1991] UKHL 1)
    The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
    Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.237717

Cumming v Danson: CA 1942

The court considered what amounted to reasonable alternative accomodation.
Held: it was the judge’s duty to take into account all relevant circumstances as they exist at the date of the hearing. There is a fundamental difference in the Rent Acts between an application for possession where no alternative accommodation is offered and an application where it is offered. Lord Greene MR said: ‘In considering reasonableness . . it is, in my opinion, perfectly clear that the duty of the judge is to take into account all relevant circumstances as they exist at the date of the hearing. That he must do in what I venture to call a broad, commonense way as a man of the world, and come to his conclusion giving such weight as he thinks right to the various factors in the situation. Some factors may have little or no weight, others may be decisive, but it is quite wrong for him to exclude from his consideration matters which he ought to take into account.’
References: [1942] 2 All ER 653, [1942] 112 LJKB 145, [1942] 59 TLR 70, [1942] 87 Sol Jo 21
Judges: Lord Greene MR
Jurisdiction: England and Wales
This case is cited by:

  • Applied – Battlespring Ltd v Gates CA 1983 ([1983] EGLR 103, [1983] EG 355, (1984) 11 HLR 6)
    The tenant had occupied the house for 35 years. She resisted an application by her landlord to rehouse her. She had brought up her family there and did want to leave.
    Held: The landlord’s appeal was dismissed. The landlord’s interest which was . .
  • Cited – Moat Housing Group-South Ltd v Harris and Another CA 16-Mar-2005 (, [2005] EWCA Civ 287, Times 23-Mar-05)
    The defendant family was served without notice with an anti-social behaviour order ordering them to leave their home immediately, and making other very substantial restrictions. The evidence in large part related to other people entirely.
  • Cited – London Borough of Southwark v Kofi-Adu CA 23-Mar-2006 (, [2006] EWCA Civ 281, Times 01-Jun-06)
    The authority complained that during the course of the trial, the judge had repeatedly intervened during oral evidence.
    Held: A judge must be careful not to repeatedly intervene during oral evidence as opposed to counsel making submissions. . .
  • Cited – Bracknell Forest Borough Council v Green and Another CA 20-Mar-2009 (, [2009] EWCA Civ 238, [2009] CP Rep 31, [2009] PTSR CS49, [2009] NPC 45, [2009] HLR 38)
    The council sought possession of the property saying that the three bedroomed property was underused by the tenant and his sister. The respondents said that it was not too extensive, and that no satisfactory alternative accommodation had been . .
  • Cited – Whitehouse v Lee CA 14-May-2009 (, [2009] EWCA Civ 375, Times 12-Jul-09)
    The tenant appealed against an order requiring her to give up possession of her flat, held under the 1977 Act, saying that the court should not have found it reasonable to make an order after finding alternative accommodation suitable.
    Held: . .
  • Cited – Manchester City Council v Pinnock SC 9-Feb-2011 (, [2011] UKSC 6, [2011] 2 All ER 586, [2011] NPC 16, [2011] 2 WLR 220, UKSC 2009/0180, , , [2011] 2 AC 104)
    The council tenant had wished to appeal following a possession order made after her tenancy had been demoted. The court handed down a supplemental judgment to give effect to its earlier decision. The Court had been asked ‘whether article 8 of the . . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.221513

Regina v Kensington and Chelsea Royal London Borough Council Ex parte Hammell: CA 1989

Parker LJ said of the plaintiff’s application for a review of the decision on her homelessness application: ‘She is entitled to protection with regard to her public law right to have the necessary inquiries made and the decision properly made . . the injustice to the applicant, if she is not housed but is right, is clearly immense . . This is no more than interim protection for as long as it takes to decide the substantive matter . .’
An interim injunction might be discharged where the plaintiff cannot make out the strong prima facie case that is required, where the potential balance of injustice favours not granting an injunction, and where the public interest likewise lies in not granting an injunction.
References: [1989] QB 518, [1989] 1 All ER 1202, [1989] 2 WLR 90, [1989] Fam Law 430
Judges: Parker LJ
Jurisdiction: England and Wales
This case cites:

  • Cited – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979 ([1980] SC (HL) 1, [1980] 1 WLR 182, , [1979] UKHL 7)
    The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
    Held: The House . .

This case is cited by:

  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 – Lawer, Regina (on the Application of) v Restormel Borough Council Admn 12-Oct-2007 (, [2007] EWHC 2299 (Admin))
    The applicant was joint tenant of a council property. She suffered domestic violence, and said she was advised by the local authority to surrender her tenancy on the basis that they would rehouse her. She did so. The authority refused to provide a . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228956

Attorney General v Worrall: CA 1895

The donor gave his son the benefit of a debt of about andpound;24,000 which was owing to him, in return for which the son covenanted to pay the father an annuity of andpound;735 p.a. during his life.
Held: ‘It has been held that in cases of this kind the court has to determine what the real nature of the transaction was, apart from legal phraseology and the forms of conveyancing.’ and ‘a benefit by contract or otherwise’ may be reserved by the donor notwithstanding that it ‘does not arise by way of reservation out of that which is given’
References: [1895] 1 QB 99
Judges: Lord Esher MR
Jurisdiction: England and Wales
This case is cited by:

  • Approved – St Aubyn v Attorney General HL 12-Jul-1951 ([1952] AC 15, , [1951] UKHL 3, [1951] 2 All ER 473)
    The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .
  • Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997 (Times 11-Sep-97, Gazette 10-Sep-97, , [1997] EWCA Civ 2212, [1997] 4 All ER 395, [1997] STC 1234)
    The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
    Held: . .
  • Cited – Ingram and Another v Commissioners of Inland Revenue HL 10-Dec-1998 (, , [1998] UKHL 47, [2001] AC 293, [[1999] 1 All ER 297, [1999] 2 WLR 90, (1999) STC 37)
    To protect her estate from Inheritance Tax, the deceased gave land to her solicitor, but then took back a lease. The solicitor then conveyed the land on freehold on to members of her family.
    Held: The lease-back by the nominee was not void as . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223765

New Zealand Institute of Agriculture Science Inc v Ellesmere County: 1976

(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and the degree and seriousness of the non-compliance.’
References: [1976] 1 NZLR 630
Judges: Cooke J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal PC 19-Jun-2002 (, , , (Appeal No 34 of 2001), [2002] UKPC 34, [2003] 1 LRC 422)
    PC (Trinidad and Tobago) Disciplinary proceedings had commenced against the appellant, the chief magistrate, but the time limits had not been followed. The appellant argued that the time limits were mandatory. . .
  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 – TTM v London Borough of Hackney and Others CA 14-Jan-2011 (, [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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228957

Grey (Earl) v Attorney General: HL 1900

The donor conveyed land to his son by way of gift but reserved an annual rentcharge during his life which was charged on the land conveyed and which his son covenanted to pay (together with the other liabilities of the donor), and retained the right to occupy the mansion house which stood on the land conveyed together with other benefits. He also reserved a power of revocation.
Held: The gift was ineffective to save estate duty. The gift was revocable; the donor had reserved an interest for life; he had retained the right to occupy part of the land which formed the subject-matter of the gift; and he had clearly reserved a benefit by contract or otherwise in the shape of the son’s covenant to pay the rentcharge. This was a benefit which the donor did not possess before the gift. It was a security for the rentcharge which guaranteed payment even if the land produced insufficient income to support it. Earl of Halsbury LC: ‘My Lords, there are some cases so extremely plain that it is difficult to give a better exposition of the question than that which the statute itself provides’
References: [1900] AC 124
Judges: Earl of Halsbury LC
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Attorney General v Earl Grey CA 2-Jan-1898 ([1898] 2 QB 534)
    The court considered the effectiveness of a gift from father to son for estate duty purposes, where the revenue said that the father had reseved an interest in the land to himself. The conveyance to the defendant donee contained the following . .

This case is cited by:

  • Mentioned – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997 (Times 11-Sep-97, Gazette 10-Sep-97, , [1997] EWCA Civ 2212, [1997] 4 All ER 395, [1997] STC 1234)
    The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
    Held: . .
  • Cited – In re Nichols, deceased CA 2-Jan-1975 ([1975] 1 WLR 534)
    The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
    Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .
  • Cited – St Aubyn v Attorney General HL 12-Jul-1951 ([1952] AC 15, , [1951] UKHL 3, [1951] 2 All ER 473)
    The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .
  • Cited – Commissioner of Stamp Duties of New South Wales v Perpetual Trustee Co Ltd PC 1943 ([1943] AC 425)
    The Board consideerd the application of the retention of benefit rules. Lord Russell of Killowen said: ‘the entire exclusion of the donor from . . enjoyment which is contemplated . . is entire exclusion from . . enjoyment of the beneficial interest . .
  • Distinguished – Re Cochrane 1905 ([1905] 2 IR 626)
    (High Court of Ireland) The court considered the effectivenmess of a gift with a reservation to the donor, distinguishing Earl Grey: ‘The limitation of this annuity, although prior to the gift, was, as well as being charged on the land, secured by . .
  • Cited – Re Cochrane CA 1906 ([1906] 2 IR 200)
    (Court of Appeal of Ireland) The court considered the effectivenmess of a gift with a reservation to the donor. As to the Earl Grey case, if ever there was a case to which the statute applied it was The Attorney-General v Grey. The court referred to . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223759

British Columbia (Attorney General) v Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re): 1994

(Supreme Court of Canada) The court strongly criticized the mandatory/directory distinction in statutory interpretation: ‘courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?’
References: [1994] 2 SCR 41
Judges: Iacobucci J
Jurisdiction: Canada
This case is cited by:

  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228959

Bland v Moseley: 1587

The court distinguished the elements of an easement of light and an easement of air. In the absence of an easement, a building may be erected so as to restrict the flow of air onto his neighbour’s land.
References: (1587)
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Aldred’s Case 1619 ((1619) 9 Co Rep 57 b, (1619) 77 ER 816)
    An action would lie where a pig-stye was erected so close to the plaintiff’s house as to corrupt the air in the house, and also and similarly for a lime-kiln with smoke, or where filth from a dye house runs into a fish pond. Where the plaintiff . .
  • Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997 (Gazette 14-May-97, Times 25-Apr-97, , [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
  • Cited – Chastey v Ackland CA 1895 ([1895] 2 Ch 389, [1895] 64 L J QB 523, [1895] 72 LT 845, [1895] 43 WR 627, [1895] 11 TLR 460, [1895] 39 Sol Jo 582)
    The two properties were in a terrace backing onto an area popularly used as a urinal. The defendant raised his wall by sixteen feet causing a stagnation of the air in the yard, making the other houses less healthy. The court at first instance . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195585

Commissioner of Stamp Duties of New South Wales v Perpetual Trustee Co Ltd: PC 1943

The Board consideerd the application of the retention of benefit rules. Lord Russell of Killowen said: ‘the entire exclusion of the donor from . . enjoyment which is contemplated . . is entire exclusion from . . enjoyment of the beneficial interest in property which has been given by the gift, and . . enjoyment by the donor of some beneficial interest therein which he has not included in the gift is not inconsistent with the entire exclusion from . . enjoyment which the sub-section requires.’
References: [1943] AC 425
Judges: Lord Russell of Killowen
Jurisdiction: Australia
This case cites:

  • Cited – Grey (Earl) v Attorney General HL 1900 ([1900] AC 124)
    The donor conveyed land to his son by way of gift but reserved an annual rentcharge during his life which was charged on the land conveyed and which his son covenanted to pay (together with the other liabilities of the donor), and retained the right . .

This case is cited by:

  • Approved – St Aubyn v Attorney General HL 12-Jul-1951 ([1952] AC 15, , [1951] UKHL 3, [1951] 2 All ER 473)
    The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .
  • Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997 (Times 11-Sep-97, Gazette 10-Sep-97, , [1997] EWCA Civ 2212, [1997] 4 All ER 395, [1997] STC 1234)
    The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
    Held: . .
  • Cited – In re Nichols, deceased CA 2-Jan-1975 ([1975] 1 WLR 534)
    The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
    Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223764

Society Promoting Environmental Conservation v Canada (Attorney-General): 2003

(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity.’
References: (2003) 228 DLR (4th) 693
Judges: Evans JA
Jurisdiction: Canada
This case is cited by:

  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 – TTM v London Borough of Hackney and Others CA 14-Jan-2011 (, [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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228960

Grigsby v Melville: CA 6 Jul 1973

The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the room above. The plainttiff sought an injunction to restrain the seller from using the cellar.
Held: The seller’s appeal failed. The term dwellinghouse was to be interpreted to include the cellar. There was no ambiguity in the description so as would allow the court to look to any surrounding circumstances to construe the deed. Had he intended to exclude the cellar, it would have been easy to do so. This was not an action for rectification.
References: [1973] 3 All ER 455
Judges: Russell LJ, Stamp LJ, James Lj
Jurisdiction: England and Wales
This case cites:

  • Appeal from – Grigsby v Melville and Another ChD 1972 ([1972] 1 WLR 1355, [1973] 1 All ER 385)
    A purchaser of a house above a cellar sought an injunction to support his assertion that a cellar which was served by an access only from the defendant seller’s retained property had been included in the conveyance of ‘all that dwellinghouse’
  • Cited – Corbett v Hill 1870 ((1870) LR 9 Eq 671, (1870) 39 CJCh 547, (1870) 2 LT 263, (1870) 7 Digest (Repl) 267)
    The court considered a conveyance on sale which created an underground flying freehold. Sir William James VC said that the owner of land owns ‘everything up to the sky’. . .
  • Cited – Smout v Farquharson CA 12-Dec-1972 (Unreported, 12 December 1972)
    The court considered a case where there was difficulty in deriving the horizontal boundaries of a property. . .
  • Cited – Truckell v Stock CA 1957 ([1957] 1 All ER 74, [1957] 1 WLR 161)
    The court considered the effect of a conveyance where an inspection of the ground revealed a mistake in the description of the land. . .
  • Cited – Laybourn v Gridley 1892 ([1892] 2 Ch 53, [1892] 61 LJCh 352, [1892] 7 Digest (Repl) 267)
    Part of a room protruding into the property conveyed avbove ground level was included in the conveyance. . .
  • Cited – Mitchell v Mosley CA 1914 ([1914] 1 Ch 438, [1914] LJCh 438, [1914] 109 LT 648)
    Where a plot of land sold has the boundaries identified, prima facie, the conveyance will also include all the land within and below the boundaries.
    Lord Cozens-Hardy MR said: ‘In my opinion we should be going contrary to perfectly well . .

This case is cited by:

  • Cited – Scarfe v Adams CA 1981 ([1981] 1 All ER 843)
    Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was . .
  • Cited – Woolls v Powling CA 9-Mar-1999 (Times 09-Mar-99, , [1999] EWCA Civ 751)
    A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
    The . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.242460

Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal and Another: PC 23 Mar 2005

(Jamaica) The company having been taken over summarily dismissed three employees who complained to their union, and the remaining workforce were called out on strike. There was a disagreement as to whether there was a genuine redundancy situation. The tribunal ordered the strike to cease, and for the employees to be re-instated.
Held: No estoppel was established against the employees by having cashed their redundancy cheques. The section allowed a mandatory re-instatement, although ‘Reinstatement does not necessarily require that the employee be placed at the same desk or machine or be given the same work in all respects as he or she had been given prior to the unjustifiable dismissal. If, moreover, in a particular case, there really is no suitable job into which the employee can be re-instated, the employer can immediately embark upon the process of dismissing the employee on the ground of redundancy, this time properly fulfilling his obligations of communication and consultation under the Code.’
References: [2005] UKPC 16
Links: Bailii, PC
Judges: Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
This case cites:

  • Cited – Scarf v Jardine HL 13-Jun-1882 ([1882] 7 AC 345, [1882] UKLawRpAC 17, )
    If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223878

A Roberts and Co Ltd v Leicestershire County Council: ChD 1961

The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the contract, and that the other party concluded the contract with the omission or a variation of that term in the knowledge that the first party believed the term to be included. . . The principle is stated in Snell on Equity, 25th edition (1960), p 569 as follows: ‘By what appears to be a species of equitable estoppel, if one party to a transaction knows that the instrument contains a mistake in his favour but does nothing to correct it, he (and those claiming under him) will be precluded from resisting rectification on the ground that the mistake is unilateral and not common.”
References: [1961] Ch 555, [1961] 2 All ER 545
Judges: Pennycuick J
Jurisdiction: England and Wales
This case is cited by:

  • Approved – Riverlate Properties Ltd v Paul CA 1974 ([1975] Ch 133, [1974] 2 All ER 656)
    A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
    Held: The tenant had no such knowledge as would have brought the doctrine into play. In . .
  • Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005 (, [2005] EWCA Civ 77, Times 16-Feb-05, [2005] BLR 135)
    A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
    Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
  • Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980 ([1981] 1 WLR 505, , [1980] EWCA Civ 3, [1981] 1 All ER 1077)
    An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .
  • Cited – FSHC Group Holdings Ltd v Glas Trust Corporation Ltd CA 31-Jul-2019 (, [2019] EWCA Civ 1361)
    Opportunity for an appellate court to clarify the correct test to apply in deciding whether the written terms of a contract may be rectified because of a common mistake.
    Held: The appeal failed. The judge was right to conclude that an . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.222559

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

(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.”
References: (1998) 194 CLR 355, [1998] HCA 28, (1998) 153 ALR 490, (1998) 72 ALJR 841, (1998) 8 Legal Rep 41
Links: Austlii
Judges: McHugh, Gummow, Kirby and Hayne JJ
Jurisdiction: Australia
This case is cited by:

  • Approved – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 5-Apr-2006 (, [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 2-Jul-2010 (, [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 14-Jan-2011 (, [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 13-Feb-2009 (, [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 . .
  • Cited – Abdi, Regina v CACD 31-Jul-2007 (, [2007] EWCA Crim 1913)
    The appellant had been convicted of a sexual assault on a boy, and recommended for deportation on completion of his sentence. He had not however been served with notice of the possibility of such an order, as required by section 6 of the 1971 Act, . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228958

Sphere Drake Insurance Plc and Another v Orion Insurance Company Plc: ComC 11 Feb 1999

ComC Multi-party run-off agreement made in 1975 to govern parties’ contributions towards run-off based on estimates of likely claims- asbestos-related claims led to final liabilities being vastly greater than estimates permitted. Orion, administration company under the agreement, sought substantial additional contributions from the other original parties to the 1975 agreement. First instance decision in favour of Orion for increased contribution from Sphere Drake; upheld Court of Appeal – 1975 agreement not intended to be final and binding. Finding dependent largely on evidence of one witness. Sphere-Drake pursuant to Tomlin order sought contribution from other original party (Baloise). New court of first instance held 1975 agreement final and binding. Witness now dead, evidence held to have been unreliable. Sphere Drake sued Orion. Issues: perjury – whether open to court to find deceased witness committed perjury – whether party on whose behalf witness called liable for perjury of witness (‘attribution issue’) – whether material – test of materiality – whether Sphere Drake precluded from action against Orion by own election to claim against Baloise.
Held: Deceased witness had not committed perjury. Allegations against Orion directors were unfounded. [Issues of law held not to be material to Judge’s findings, but considered.]
References: [1999] EWHC 286 (Comm)
Links: Bailii
Judges: Langley J
Jurisdiction: England and Wales
This case cites:

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.201658

Tod’s Trusteess v Wilson: 1869

A trustee’s right and the right of the purchaser, heritable creditor or assignee were ‘simply two independent rights running a race against each other’
References: (1869 ) 7 M 1100
Judges: Lord Kinloch
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194243

Bank of Scotland v Hutchison Main (in liquidation): HL 6 Feb 1914

A mere declaration of intent is not sufficient to create a trust, as there must be a clear and identifiable declaration of trust – an express declaration.
References: 1914 SC (HL) 1, [1914] UKHL 3, [1914] AC 311, (1914) 1 SLT 111
Links: Bailii
Judges: Lord Kinnear
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194235

Buchan v Farqhuarson: 1797

References: 1797 M 2905
Jurisdiction: Scotland
This case cites:

  • Disapprovd – Smith v Taylor 18-Dec-1795 (Bells Commentaries 18 December 1795)
    . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194230

Gibb v Livingston: 1763

References: (1763) 4 Br Supp 897
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .
  • Cited – Mitchells v Ferguson 1781 (3 Ross’s LC 120, 1781 M 10296, Hailes 879)
    In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194237

Duncan v Jones: KBD 1936

The appellant was about to make a public address in a situation in which the year before a disturbance had been incited by her speaking. A policeman believed reasonably that a breach of the peace would occur if the meeting was held, and ordered the appellant not to hold the meeting. The appellant however persisted in trying to hold the meeting and obstructed the police officer in his attempt to prevent her from doing so. Neither the appellant nor anyone present, committed, incited or provoked a breach of the peace, but the appellant was held to have wilfully obstructed the officer in the execution of his duty.
Held: The fact that the officer reasonably apprehended a breach of the peace was a justification for the finding that he was acting in the execution of his duty. The police may prevent a demonstration on the public highway where there was any fear of a breach of the peace.
Lord Hewart CJ: ‘English law does not recognize any special right of public meeting for political or other purposes’.
References: [1936] 1 KB 218, (1935) 154 LT 110, [1935] All ER 711
Judges: Lord Hewart CJ, Humphreys and Singleton JJ
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Hirst and Agu v Chief Constable of West Yorkshire QBD 1987 ((1987) 85 Cr App R 143)
    The defendants were arrested after distributing leaflets outside a furriers, and appealed against convictions for obstructing the highway.
    Held: The appeals succeeded. In deciding whether there was a lawful excuse for a technical obstruction . .
  • Cited – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999 (Times 05-Mar-99, , Gazette 17-Mar-99, Gazette 31-Mar-99, , [1999] 2 AC 240, [1999] UKHL 5, [1999] 2 WLR 625, [1999] 2 All ER 257, (1999) 6 BHRC 513, (1999) 3 CHRLD 4)
    21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
  • Cited – Laporte, Regina (on the Application of) v Gloucestershire Constabulary and others CA 8-Dec-2004 ([2005] QB 678, , [2004] EWCA Civ 1639, Times 13-Dec-04, [2005] All ER 473)
    The claimant had been in a bus taking her and others to an intended demonstration. The police feared breaches of the peace, and stopped the bus, and ordered the driver to return to London, and escorted it to ensure it did not stop.
    Held: The . .
  • Cited – Redmond-Bate v Director of Public Prosecutions Admn 23-Jul-1999 (Times 28-Jul-99, , , [2000] HRLR 249, [1999] EWHC Admin 733, [1999] Crim LR 998, (1999) 7 BHRC 375, (1999) 163 JP 789, CO/188/99)
    The police had arrested three peaceful but vociferous preachers when some members of a crowd gathered round them threatened hostility.
    Held: Freedom of speech means nothing unless it includes the freedom to be irritating, contentious, . .
  • Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006 (, [2006] UKHL 55, Times 14-Dec-06, [2007] 2 WLR 46, [2007] 2 All ER 529, [2007] 2 AC 105, (2006) 22 BHRC 38)
    The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.192205

Black and Grant v Gordon: HL 1794

An entail had been recorded in the register of tailzies but infeftment had not followed. The House rejected the appellants’ argument that the adjudging creditors could not claim to have relied on the title as it stood in the register of sasines.
References: (1794) 3 Pat 317
Judges: Lord Justice Clerk Braxfield
Jurisdiction: Scotland
This case cites:

  • Followed – Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts 1765 ((1765) 3 Ross’s LC 169, M 15616)
    In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194238

Lord Melville v Paterson: 1842

A question arose about the application of the vesting provisions of the 1839 Act in a case where the debtor had died. Citing Bell in support, the Lord Ordinary (Ivory), whose decision was affirmed by the Second Division, referred to the position in the sequestration of a living debtor: ‘No doubt, the right thus declared to be vested in the trustee, will be no more than a right tantum et tale with what actually belonged to the bankrupt at the date of sequestration; and where the bankrupt, therefore, has previously granted a prior personal right, in the shape of a conveyance or security, to an individual creditor or other third party, upon which it would be in the power of such a party to run a race against the trustee, it may be necessary for the latter, with a view to exclude the completion of this inchoate adverse right, to obtain his own title first completed according to all the feudal forms, and so entered upon the records.’
References: (1842) 4 D 1311
Judges: Lord Ordinary Ivory
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194244

Forbes’s Trustees v Macleod: 1898

The trustee asserted title in the sequestration of Mr Carrick, to whom a bond and disposition in security granted by a third party had been assigned in security of an advance which he had made to the trustees. Mr Carrick’s title to the subjects appeared from the record to be unqualified, as the assignation to him was ex facie absolute. But he acknowledged in a back letter that the assignation had been made to him in security of the advance, and he undertook to reconvey the bond when the debt had been repaid. The rule that the creditors of the ex facie absolute proprietor could take no higher right than he himself possessed was applied. As soon as the debt was paid, Mr Carrick ceased to have any pecuniary interest in the subjects. So there was nothing left for his creditors to attach. His title was, as Lord McLaren put it at p 1015, merely nominal.
References: (1898) 25 R 1012
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194232

Burnett’s Trustee v Grainger and Another: HL 4 Mar 2004

A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
Held: The Act defined the estate of the person sequestrated, and vested those assets in his trustee for the benefit of the sequestrator. The purchaser who failed to register his interest lost it. ‘In the present case the respondent has done nothing more than take advantage of the mistake or error of his rivals, the appellants, in failing to get off their mark and record the disposition from Mrs Burnett promptly. Even once their agents had become aware that her estate had been sequestrated and that the respondent had been appointed as permanent trustee, for whatever reason, they failed to act. In retrospect at least, that was a mistake, since it allowed the respondent to record his notice of title before the appellants. As the authorities show, even although the respondent was well aware that the appellants held a disposition from Mrs Burnett, he was fully entitled to take advantage of their mistake by recording the notice of title and so completing the diligence by acquiring the real right in the subjects for the creditors.’
References: 2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, [2004] UKHL 8, Times 08-Mar-2004, [2004] 11 EGCS 139
Links: House of Lords, Bailii
Judges: Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Hobhouse of Woodborough, Lord Rodger of Earlsferry
Statutes: Bankruptcy (Scotland) Act 1985 31(1), Abolition of Feudal Tenure etc (Scotland) Act 2000, Conveyancing (Scotland) Act 1924 5
Jurisdiction: Scotland
This case cites:

  • Cited – Heritable Reversionary Company Ltd v Millar HL 9-Aug-1892 ((1892) 19 R (HL) 43, , [1892] AC 598, [1892] UKHL 2)
    Where the bankrupt had been the trustee of property, the bare legal title to that property did not form part of ‘the whole property of the debtor’ and so did not vest in the permanent trustee in bankruptcy under the section. ‘My Lords, if this House . .
  • Cited – Allan’s Trustes v Lord Advocate HL 1971 (1971 SC (HL) 45, , [1970] UKHL 7, [1970] TR 417, 1971 SLT 62)
    The House set out the requirements for a declaration of trust. The truster must have an intention to make himself trustee of his own property and must also do something equivalent to delivery or transfer of the trust fund. The origin of trusts in . .
  • Distinguished – Sharp v Thomson HL 1997 (1997 SC (HL) 66, , [1997] UKHL 60, [1998] BCC 115, 1997 SC (HL) 66, 1997 SCLR 328, 1997 GWD 9-364, [1997] 1 BCLC 603, 1997 SLT 636)
    A floating charge was given over the whole of a company’s property which might from time to time be ‘comprised in our property and undertaking’. The charge terms echoed the section which allows a company to create a charge ‘over all or any part of . .
  • Cited – Rodger (Builders) Ltd v Fawdry 1950 (1950 SC 483)
    Where the owner of land sells it, but, knowing the purchaser not to have registered the title sells it again to a purchaser who then knowingly seeks to register the second transfer, the court will disallow the transfer: ‘offside goals are . .
  • Cited – Bell v Gartshore IHCS 1737 (2 Ross’s LC 410, (1737) M 2848;)
    The court adopted the principle that unrecorded personal deeds, such as a disposition, could not affect feudal rights. . .
  • Cited – Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts 1765 ((1765) 3 Ross’s LC 169, M 15616)
    In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was . .
  • Cited – Young v Leith IHCS 1844 ((1848) 2 Ross’s LC 81, (1844) 6 D 370)
    Unrecorded instruments of sasine were nullities, but the granter of the sasine was not entitled to plead the nullity: ‘. . I am very glad that the result is such as my noble friend proposes, and that now, on the authority of this House, it will be . .
  • Cited – Earl of Fyfe v Duff IHCS 1861 ((1861) 23 D 657)
    The Earl of Fife and his trustees sought a declarator that they had power to sell certain lands and to receive the price and use it at their pleasure. The defenders included the heirs called to the succession by various deeds. Some of the heirs . .
  • Cited – Earl of Fyfe v Duff HL 1862 ((1862) 24 D 936, (1863) 4 Macq 469)
    The Earl sought a declarator to allow the sale of land. Others said it was subject to rights of ntail. The court referred to an uninfeft proprietor as a ‘personal fee’. Voluntary transmission of feudal subjects is effected by a dispositive act . .
  • Cited – M’Adam v M’Adam IHCS 1879 ((1879) 6 R 1256)
    The house referred to ‘the owner of a personal right to land’ to describe the position of an uninfeft proprietor. . .
  • Cited – Stewart v Jarvie IHCS 1938 (1938 SC 309)
    The permanent trustee acts under the statute for each and every one of the creditors of the sequestered individual, not for himself as an individual. . .
  • Cited – Young v Leith HL 1847 ((1847) 9 D 932)
    The only way in which a disponee can be sure of preventing a third party, such as an adjudging creditor, from acquiring a real right to the lands which will prevail against his right is by registration. ‘The proper object and effect of every valid . .
  • Cited – Orr v Mitchell 1893 ((1893) 20 R (HL) 27)
    Until the interest of the purchaser has been recorded or registered the seller remains vested in the real right. His relationship with the purchaser is controlled by the rights and obligations which were created by their contract. When the . .
  • Cited – Henderson v Dawson 1895 ((1895) 22 R 895)
    An inhibition which is laid on after the missives have been concluded but before the date of the disposition, apparently striking at the sale, may cause difficulty in a question with a subsequent purchaser . .
  • Cited – Dryburgh v Gordon 1896 ((1896) 24 R 1)
    A search against land which produces an adverse entry ex facie of the record, even if it relates to an inhibition which was laid on after the missives were entered into, is not a clear search. . .
  • Cited – Bell of Blackwoodhouse v Gartshore 1737 (1737 M 2848, 5 Br Suppl 198, 2 Ross’s LC 410)
    Alexander Oliphant bought a tenement in Kelso which was being sold by the adjudging creditors of William Chatto. Without becoming infeft, in 1730 Oliphant disponed the decree of sale to Chatto’s son, who also was not infeft. Two years later Chatto . .
  • Cited – Mitchells v Ferguson 1781 (3 Ross’s LC 120, 1781 M 10296, Hailes 879)
    In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson . .
  • Cited – Wylie v Duncan 1803 (1803 M 10269, 3 Ross’s LC 134)
    Wylie sold certain tenements to Archibald who took infeftment on the disposition. On the same day as he received the disposition Archibald granted a letter to Wylie binding himself to resell the tenements to Wylie on six months’ notice. The . .
  • Cited – Mansfield v Walker’s Trustees; Inglis v Mansfield 1833 ((1833) 11 S 813, (1835) 1 S and Macl 203)
    The bankrupt had undertaken to grant a bond in security of a loan over lands of which he was the proprietor. The description of the lands in the bond was of a part of the lands only, with the result that the security was inadequate. The question was . .
  • Cited – Buchan v Farqhuarson 1797 (1797 M 2905)
    . .
  • Cited – Colquhouns’ Trustee v Campbell’s Trustees 1902 ((1902) 4 F 739)
    Law agents had failed to record two bonds and dispositions granted by the owner of a property in Glasgow in security of loans which their clients had made to him. They then obtained and recorded an ex facie absolute disposition of the same subjects . .
  • Cited – Forbes’s Trustees v Macleod 1898 ((1898) 25 R 1012)
    The trustee asserted title in the sequestration of Mr Carrick, to whom a bond and disposition in security granted by a third party had been assigned in security of an advance which he had made to the trustees. Mr Carrick’s title to the subjects . .
  • Cited – Bank of Scotland v Hutchison Main (in liquidation) HL 6-Feb-1914 (1914 SC (HL) 1, , [1914] UKHL 3, [1914] AC 311, (1914) 1 SLT 111)
    A mere declaration of intent is not sufficient to create a trust, as there must be a clear and identifiable declaration of trust – an express declaration. . .
  • Cited – Gibson v Hunter Home Designs Limited SCS 7-Nov-1975 (1976 SC 23, , [1975] ScotCS CSIH – 1)
    A disposition had been executed but not delivered.
    Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. . .
  • Cited – Ireland v Neilson 1755 ((1755) 5 Br Supp 828)
    A debtor had acquired the land by fraud.
    Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been. . .
  • Cited – Gibb v Livingston 1763 ((1763) 4 Br Supp 897)
    . .
  • Cited – In re Re Rose, Midland Bank Executor and Trustee Company Limited v Rose ChD 1949 ([1949] Ch 78)
    The testator handed a transfer of the relevant shares to the donee, Mr Hook, together with the relevant certificates. The transfer had not been registered by the date of his death.
    Held: Equity will not compel an imperfect gift to be . .
  • Cited – Russell v Ross’s Creditors; Pierse v Ross 31-Jan-1792 (31 January 1792 FC, 1792 M 10300, 3 Ross’s LC 177)
    . .
  • Cited – Black and Grant v Gordon HL 1794 ((1794) 3 Pat 317)
    An entail had been recorded in the register of tailzies but infeftment had not followed. The House rejected the appellants’ argument that the adjudging creditors could not claim to have relied on the title as it stood in the register of sasines. . .
  • Cited – Thomson v Douglas, Heron and Co 15-Nov-1786 (15 November 1786 FC, 1786 M 10229)
    Thomson had disponed land to a man of business to sell and apply the proceeds for the behoof of Thomson. The disponee omitted to insert this qualification in the procuratory of sasine and it did not appear on the register. He then proceeded to . .
  • Cited – Buchan v Farquharson 24-May-1797 (24 May 1797 FC, 1797 M 2905, 3 Ross’s LC 137)
    On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon’s estate did not vest in the trustee in bankruptcy . .
  • Cited – Cormack v Anderson 1829 ((1829) 7 S 868)
    . .
  • Cited – Tod’s Trusteess v Wilson 1869 ((1869 ) 7 M 1100)
    A trustee’s right and the right of the purchaser, heritable creditor or assignee were ‘simply two independent rights running a race against each other’ . .
  • Cited – Lord Melville v Paterson 1842 ((1842) 4 D 1311)
    A question arose about the application of the vesting provisions of the 1839 Act in a case where the debtor had died. Citing Bell in support, the Lord Ordinary (Ivory), whose decision was affirmed by the Second Division, referred to the position in . .
  • Cited – Alex Brewster and Sons v Frank Mitchell Caughey and others SCS 2-May-2002 (, , [2002] ScotCS 123, 2002 GWD 15-506)
    If a purchaser becomes aware ‘that there may be a prior purchaser in the same queue for Register House he must ask the latter if he be such a purchaser and in the event of a positive, correct answer yield place to him’ . .
  • Appeal from – Michael James Meston Reid (Permanent Trustee on the Estates of Carlene Rose Burnett) v Harvey Leighton Grainger and Moira Elizabeth Grainger SCS 15-May-2002 (,
    . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194162

Wylie v Duncan: 1803

Wylie sold certain tenements to Archibald who took infeftment on the disposition. On the same day as he received the disposition Archibald granted a letter to Wylie binding himself to resell the tenements to Wylie on six months’ notice. The following year Archibald was sequestrated and the trustee, who was infeft, sold the tenements. Wylie then produced the letter and insisted that the original transaction had been intended as a security for a loan. He therefore claimed to be entitled to redeem the tenements on payment of the sum borrowed. He brought proceedings against the trustee before the Glasgow magistrates who assoilzied the trustee. Archibald appealed to the Court of Session, arguing that the trustee must take the debtor’s property tantum et tale, subject to the right of redemption.
Held: Personal qualifications which do not appear in the record are unavailing as real burdens on the property and are of no effect against third parties: ‘The question, however, must always return to this, What was truly the extent of real right in the debtor? And although he may be under a relative personal obligation, the real right legally constituted is that only which his sasine bears, and of which it gives assurance to the public; and accordingly, it has at last been held that such personal exceptions have no effect against creditors’ The bankrupt was under an obligation to reconvey the property to the seller on demand, on the ground that that was not a case of a trust qualifying the title of the trustee but was a case where the bankrupt had purchased the estate ‘out-and-out’ and that the obligation to reconvey was purely personal. ‘Tantum et tale has often been pleaded against adjudgers; and if good against them, would be so against trustees. But the law for some time has held otherwise . . . Tantum et tale is good as to objections, which go to the extinction of the subject adjudged; eg if heritable bond adjudged, extinction is a good answer. If right qualified gremio, that is also a good answer. But if not, as here, and not going to extinction, it is a mere personal matter, which touches not the adjudger more than a lender on heritable bond . . . As to an adjudger, if there is any doubt, let us solemnly hear the case. But I hold that there is none. He takes on the faith of the record, not tantum et tale.’
References: 1803 M 10269, 3 Ross’s LC 134
Judges: Lord President Campbell
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194228

Sutton v Drax: 1815

References: (1815) 2 Phill 323
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195581

Thomson v Douglas, Heron and Co: 15 Nov 1786

Thomson had disponed land to a man of business to sell and apply the proceeds for the behoof of Thomson. The disponee omitted to insert this qualification in the procuratory of sasine and it did not appear on the register. He then proceeded to borrow money and granted a heritable security in favour of Douglas, Heron and Co. Other creditors adjudged the property. The court held that the allegations of fraud on the part of the disponee were irrelevant against the defenders’ heritable securities but that they were relevant as to the creditors who had adjudged the property.
Held: It had been found in decisions, which for the stability of the law ought not to be departed from, that adjudgers must take the right of their debtor tantum et tale as it was in his person.
References: 15 November 1786 FC, 1786 M 10229
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194240

Ireland v Neilson: 1755

A debtor had acquired the land by fraud.
Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been.
References: (1755) 5 Br Supp 828
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .
  • Followed – Mitchells v Ferguson 1781 (3 Ross’s LC 120, 1781 M 10296, Hailes 879)
    In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194236

Buchan v Farquharson: 24 May 1797

On 28 June 1788 Robert Gordon assigned a personal bond for 3000 merks to the Reverend Robert Farquharson. Gordon was sequestrated on 19 July and the assignation was intimated on 4 August, but Gordon’s estate did not vest in the trustee in bankruptcy until after that. The trustee brought an action against Farquharson to reduce the assignation, inter alia because it had not been intimated until after the sequestration. The court assoilzied Farquharson on the ground that the assignation had been completed by intimation before Gordon’s estate had vested in the trustee. A sequestration did not prevent a creditor from completing his right by any act independent of the consent of the debtor, such as intimating a previous assignation. But: ‘The trustee on a bankrupt estate will be preferred to a creditor claiming on a voluntary disposition, granted before the sequestration, if the right of the trustee be first completed. And therefore, the propriety of the decision, 8 December 1795, Taylor and Smith against Marshall, in so far as it went upon the supposition that the trustee in such case is bound to make good the previous voluntary disposition, may be doubted.’
References: 24 May 1797 FC, 1797 M 2905, 3 Ross’s LC 137
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194241

Colquhouns’ Trustee v Campbell’s Trustees: 1902

Law agents had failed to record two bonds and dispositions granted by the owner of a property in Glasgow in security of loans which their clients had made to him. They then obtained and recorded an ex facie absolute disposition of the same subjects in their own name as security for debts owed by the owner to the firm. This was a fraudulent breach of trust.
Held: The decision in Heritable Reversionary Company showed that the estate must honestly belong to the bankrupt, and that the creditors cannot enlarge the estate for distribution by adopting a fraud on the part of the bankrupt or doing something which would have been a fraud if it had been done by him when he was solvent.
References: (1902) 4 F 739
Jurisdiction: Scotland
This case cites:

  • Cited – Heritable Reversionary Company Ltd v Millar HL 9-Aug-1892 ((1892) 19 R (HL) 43, , [1892] AC 598, [1892] UKHL 2)
    Where the bankrupt had been the trustee of property, the bare legal title to that property did not form part of ‘the whole property of the debtor’ and so did not vest in the permanent trustee in bankruptcy under the section. ‘My Lords, if this House . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194233

Mitchells v Ferguson: 1781

In 1768 William Donald sold his house to Agnes Carson but, pending payment, the disposition was held by Donald’s man of business. As found by the Lord Ordinary (Monboddo), the price was paid by a certain William Ferguson, on the basis that Carson would grant him a heritable bond or a disposition in security. When she failed to do so, Ferguson raised proceedings for implement of this obligation and obtained a decree in absence on 4 July 1777. The following month, on 9 August 1777, the Mitchells, as creditors of Donald, obtained a decree of adjudication of the house against him and were infeft. Carson, however, raised a multiplepoinding and suspension of the decree in absence. The nature of feudal rights was such that they could not be affected, qualified or burdened by any personal deed and that a conveyance, so long as it continued personal, did not divest the disponee. ‘I know no safety to the feudal law, unless you prefer infeftments; for otherwise an imperfect right would be better than a complete one. There is great danger in departing from this feudal principle, but none in adhering to it. The disponee is safe, unless he is supinely negligent; for an adjudication cannot be taken on a sudden, and without the knowledge of many.’ Bell -v- Gartshore reasoning would apply even where the creditors didd not rely on the register when contracting with the debtor.
References: 3 Ross’s LC 120, 1781 M 10296, Hailes 879
Judges: Lord Braxfield, Lord Gardenston
Jurisdiction: Scotland
This case cites:

  • Followed – Ireland v Neilson 1755 ((1755) 5 Br Supp 828)
    A debtor had acquired the land by fraud.
    Held: the adjudgers were affected by the debtor’s fraud, even if a purchaser would not have been. . .
  • Cited – Gibb v Livingston 1763 ((1763) 4 Br Supp 897)
    . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194229

Attorney-General v Doughty: 1752

As to any right of prospect, a building erected so as to spoil a view cannot at common law be a nuisance for that reason.
Lord Hardwicke LC said: ‘I know no general rule of common law, which warrants that, or says, that building so as to stop another’s prospect is a nuisance. Was that the case, there could be no great towns; and I must grant injunctions to all the new buildings in this town . . .’
References: (1752) 2 Ves Sen 453, [1752] 28 ER 290
Judges: Lord Hardwicke LC
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997 (Gazette 14-May-97, Times 25-Apr-97, , [1997] UKHL 14, [1997] AC 655, [1997] Fam Law 601, [1997] 2 All ER 426, [1997] 2 FLR 342, [1997] 2 WLR 684, [1997] Env LR 488, [1997] 54 Con LR 12, [1997] 84 BLR 1, [1997] CLC 1045, (1998) 30 HLR 409)
    The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195583

Cormack v Anderson: 1829

References: (1829) 7 S 868
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194242

Gibson v Hunter Home Designs Limited: SCS 7 Nov 1975

A disposition had been executed but not delivered.
Held: Entry to the subjects and payment of the price, referable to the terms of the missives, did not instruct the existence of a trust pending delivery of the disposition to the purchaser. There was no evidence of the constitution of a trust and that it was impossible to entertain the suggestion that as a result of the purchaser’s entry to the subjects and payment of the price a trust in his favour had come into existence. ‘In the law of Scotland no right of property vests in a purchaser until there has been delivered to him the relevant disposition. On delivery of the disposition the purchaser becomes vested in a personal right to the subjects in question and his acquisition of a real right to the subjects is dependent upon recording the disposition in the appropriate Register of Sasines. Putting the matter in another way the seller of subjects under missives is not, in a question with the purchaser, divested of any part of his right of property in the subjects of sale until, in implement of his contractual obligation to do so, he delivers to the purchaser the appropriate disposition.’
References: 1976 SC 23, [1975] ScotCS CSIH – 1
Links: Bailii
Judges: Lord President Emslie
Jurisdiction: Scotland
This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .
  • Cited – Sharp and Others v Woolwich Building Society HL 6-Feb-1997 (Times 26-Mar-97, , , [1997] UKHL 8)
    The House was asked: what is meant by the word property in a floating charge and in section 53(7) of the 1986 Act which provides for the effect of the appointment of a receiver by the holder of such a charge in the following terms: ‘(7) On the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194234

Russell v Ross’s Creditors; Pierse v Ross: 31 Jan 1792

References: 31 January 1792 FC, 1792 M 10300, 3 Ross’s LC 177
Judges: Lord Braxfield, Lord Monboddo’s
Jurisdiction: Scotland
This case cites:

  • Cited – Douglas v Adjudging Creditors of Kelhead and sub nom Douglas v Stewarts 1765 ((1765) 3 Ross’s LC 169, M 15616)
    In 1705 Sir William Douglas bound himself on marriage to provide the estate of Kelhead in favour of himself and the heirs-male of his body. He did not carry out that obligation, but in 1724 he executed a strict entail of the lands, which was . .

This case is cited by:

  • Cited – Burnett’s Trustee v Grainger and Another HL 4-Mar-2004 (2004 SCLR 433, 2004 SC (HL) 19, 2004 SLT 513, 2004 GWD 9-211, , [2004] UKHL 8, , Times 08-Mar-04, [2004] 11 EGCS 139)
    A flat was sold, but before the purchasers registered the transfer, the seller was sequestrated, and his trustee registered his own interest as trustee. The buyer complained that the trustee was unjustly enriched.
    Held: The Act defined the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.194239

Regina v Soneji; Regina v Bullen: CACD 20 Jun 2003

If the court could only postpone confiscation proceedings in exceptional circumstances, it behoved the court before allowing such an adjournment to enquire into the justification, and to record the circumstances which made it exceptional. The defendants appealed confiscation orders made after an extended delay.
Held: The freedom to allow a delay was only under exceptional circumstances, and such circumstances had to be recorded. That requirement now applied also under comon law (October). Though confiscation order were not to be set aside for mere failures of procedure (Sekhon), that did not displace the need for exceptional circumstances. In the absence of a finding of such, the orders failed.
References: Times 01-Jul-2003, [2003] EWCA Crim 1765, Gazette 04-Sep-2003, [2004] 1 Cr App R(S) 219
Links: Bailii
Judges: Pill LJ, Gray, Roderick Evans JJ
Statutes: Criminal Justice Act 1988 72A
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Shevki and Michael John Steele CACD 14-Dec-2000 (Times 11-Jan-01, , [2000] EWCA Crim 70, [2001] 2 Cr App R(S) 178)
    The making of a confiscation order is part of sentencing. Such an order might be delayed provided the determination was made within six months of conviction. If in the circumstances of the case of an adjournment beyond that period was necessary, . .
  • Cited – Regina v October CACD 27-Feb-2003 (Times 11-Mar-03, Gazette 24-Apr-03)
    The court had adjourned its proceedings in the absence of the defendant, so as not to fall foul of the requirement that a confiscation inquiry must take place within six months of conviction. The defendant appealed.
    Held: The court could . .
  • Cited – Sekhon, etc v Regina CACD 16-Dec-2002 (Times 27-Dec-02, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, , [2002] EWCA Crim 2954)
    The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
    Held: The courts must remember the importance of such procedures in the fight against crime, . .

This case is cited by:

  • Appeal from – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 . .
  • At Court of Appeal – Bullen And Soneji v The United Kingdom ECHR 15-Jun-2007 (3383/06, , [2007] ECHR 531)
    . .
  • At Court of Appeal – Bullen and Soneji v The United Kingdom ECHR 8-Jan-2009 (, [2009] ECHR 28, , [2009] Lloyd’s Rep FC 210)
    The claimants said that the confiscation and money-laundering proceedings taken against them had taken too long, with delays of 43 months out of a total of 66 month case attributable to the state.
    Held: The delay was too long. The applicants . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.184145

Smith v Spaul: CA 16 Dec 2002

The landlord sought to forfeit the lease for breach of a repairing covenant. The mortgagee had gone into possession, and having received the s146 notice, had served a counter-notice under the 1938 Act. The mortgagee having assigned the lease to the respondent, and the landlord seeking forfeiture, the respondent argued that the Landlord was obliged, following the counter-notice, first to seek the consent of the court.
Held: The mortgagee’s interest was less than that of the lessee, and he was not able to serve a counter-notice. Mortgagee’s of leasehold properties must know of the risk, and ensure that the property was repaired by the tenant. Since the counter-notice was invalid, the landlord did not require permission from the court to forfeit the lease.
References: Times 28-Dec-2002, [2002] EWCA Civ 1830, [2003] 1 All ER 509, [2003] 2 WLR 495, [2003] 1 P and CR D36, [2003] 2 P and CR 300, [2003] QB 983
Links: Bailii
Judges: Kay, Arden LJJ
Statutes: Law of Property Act 1925 146, Leasehold Property (Repairs) Act 1938 1(3)
Jurisdiction: England and Wales
This case cites:

  • Cited – Church Commissioners for England v Ve-Ri-Best Manfacturing Co Ltd 1956 ([1957] 1 QB 238, [1956] 3 WLR 990, 100 Sol Jo 875)
    The lease provided for re-entry for breach of covenant. The landlord served a notice requiring repairs and payment of compensation on both the tenant and the mortgagee. The mortgagees served a counter-notice, and the landlord proceeded against the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.178619

Letang v Cooper: CA 15 Jun 1964

The plaintiff, injured in an accident, pleaded trespass to the person, which was not a breach of duty within the proviso to the section, in order to achieve the advantages of a six-year limitation period.
Held: Trespass is strictly speaking not a cause of action but a form of action. It was the form anciently used for a variety of different kinds of claim which had as their common element the fact that the damage was caused directly rather than indirectly; if the damage was indirect, the appropriate form of action was the action on the case. A negligent trespass to the person could only be pursued in negligence and not in trespass. A cause of action was defined: ‘a cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.’ (Diplock LJ)
Lord Denning MR said that the cause of action of trespass to the person was limited to intended acts, and that when the act was not intended the plaintiff’s cause of action lay in negligence. He referred to the Tucker report which parliament had not adopted: ‘In this very case, Parliament did not reduce the period to two years. It made it three years. It did not make any exception of ‘trespass to the person’ or the rest. It used words of general import; and it is those words we have to construe, without reference to the words of the Committee.’ ‘Breach of duty’ in the section meant any breach of duty: ‘Our whole law of tort today proceeds on the footing that there is a duty owed by every man not to injure his neighbour in a way forbidden by law. Negligence is a breach of such a duty. So is nuisance. So is trespass to the person. So is false imprisonment, malicious prosecution or defamation of character.’
Diplock LJ said that the cause of action in trespass included both intended and unintended acts. The expression ‘breach of duty’ in section 2 of the 1939 Act, as amended, included both intended and unintended trespass. ‘A cause of action is simply a factual situation the existence of which entitles one person to obtain from the court a remedy against another person.’
References: [1965] 1 QB 232, [1964] EWCA Civ 5, [1964] 2 Lloyd’s Rep 339, [1964] 2 All ER 929, [1964] 3 WLR 573
Links: Bailii
Judges: Diplock LJ, Lord Denning MR, Danckwerts LJ
Statutes: Personal Injuries (Emergency Provisions) Act 19392
Jurisdiction: England and Wales
This case cites:

  • Adopted – Kruber v Grzesiak 1963 ([1963] VR 621)
    The plaintiff had issued a writ claiming damages for personal injuries caused by negligent driving more than three years after the accident, and now wanted to amend the writ by adding a claim for trespass to the person based on the same facts. The . .
  • Applied – Billings v Reed CA 1945 ([1945] KB 11)
    The plaintiff’s wife had been killed by a negligently piloted RAF aeroplane. It was argued that, although this was a war injury, the language of section 3(1) did not exclude a claim based on trespass to the person.
    Held: Lord Greene MR said: . .

This case is cited by:

  • Cited – Wainwright and another v Home Office HL 16-Oct-2003 (, [2003] UKHL 53, , Times 20-Oct-03, [2003] 3 WLR 1137, 2004] 2 AC 406)
    The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
  • Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004 ([2004] EWHC 786(QB), , Times 11-Jun-04)
    Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
    Held: The incidents occurred in the course of peace-keeping duties. It was . .
  • Cited – A v Hoare QBD 14-Oct-2005 (, [2005] EWHC 2161 (QB), Times 27-Oct-05, [2006] ACD 12)
    The defendant had been convicted and sentenced for the attempted rape of the claimant. He had subsequently won a substantial sum on the lottery, and she now sought damages. He replied that the action was statute barred being now 16 years old. The . .
  • Cited – Stubbings v Webb and Another HL 10-Feb-1993 (Gazette 10-Feb-93, [1993] AC 498, [1993] 2 WLR 120, Times 17-Dec-92, [1993] 1 All ER 322, [1992] 1 QB 197)
    In claims for damages for child abuse at a children’s home made out of the six year time limit time were effectively time barred, with no discretion for the court to extend that limit. The damage occurred at the time when the child left the home. A . .
  • Cited – Harb v King Fahd Bin Abdul Aziz and Another CA 9-Nov-2005 (Times 21-Nov-05, , [2005] EWCA Civ 1324)
    The wife sought to continue her claim for ancillary relief despite the death of her husband, the former King of Saudi Arabia.
    Held: The court’s jurisdiction over the King had been challenged. However the claimants claim now abated on the death . .
  • Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006 ([2006] Fam Law 533, [2006] 2 FLR 727, [2006] 1 WLR 2320, [2006] 3 FCR 673, , [2006] EWCA Civ 395, Times 28-Apr-06, [2006] 1 WLR 2320)
    Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
  • Cited – Hill (As Trustee In Bankruptcy of Nurkowski) v Spread Trustee Company Ltd and Another CA 12-May-2006 (, Times 10-Jul-06, [2006] EWCA Civ 542, [2007] 1 BCLC 450, [2007] 1 WLR 2404)
    The defendants sought relief for transactions entered into at an undervalue. The bankrupt had entered into charges and an assignment of a loan account in their favour before his bankruptcy, and the trustee had obtained an order for them to be set . .
  • Cited – A v Hoare HL 30-Jan-2008 (, [2008] UKHL 6, Times 31-Jan-08, [2008] 2 WLR 311, Gazette 14-Feb-08, [2008] 1 AC 844, (2008) 11 CCL Rep 249, [2008] 1 FCR 507, [2008] Fam Law 402, [2008] 1 FLR 771, (2008) 100 BMLR 1, [2008] 2 All ER 1)
    Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
  • Cited – Nolan v Wright ChD 26-Feb-2009 (, [2009] EWHC 305 (Ch))
    The defendant sought to re-open the question of whether the charge under which he might otherwise be liable was an extortionate credit bargain. The creditor said that that plea was time barred. The defendant argued that a finding that the agreement . .
  • Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010 ([2010] WLR (D) 130, , , [2010] UKSC 22, , , , [2010] PNLR 30, [2010] WTLR 1223, [2010] 2 WLR 1227, [2011] AC 240)
    The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
  • Cited – Sarwar v The Royal Bank of Scotland Plc (Rev 1) ChD 27-Jul-2011 (, [2011] EWHC 2233 (Ch))
    The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
  • Cited – Miller v Jackson CA 6-Apr-1977 ([1977] 1 QB 966, [1977] 3 All ER 338, , [1977] EWCA Civ 6)
    The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.186857

In re Grayan Building Services Ltd: CA 1995

The degree to which an appellate court will be willing to substitute its own judgment for that of the tribunal will vary with the nature of the question. Hoffmann LJ said: ‘The concept of limited liability and the sophistication of our corporate law offers great privileges and great opportunities for those who wish to trade under that regime. But the corporate environment carries with it the discipline that those who avail themselves of those privileges must accept the standards laid down and abide by the regulatory rules and disciplines in place to protect creditors and shareholders. And, while some significant corporate failures will occur despite the directors exercising best managerial practice, in many, too many, cases there have been serious breaches of those rules and disciplines, in situations where the observance of them would or at least might have prevented or reduced the scale of the failure and consequent loss to creditors and investors.’
Hoffmann LJ said: ‘The court is concerned solely with the conduct specified by the Secretary of State . . under rule 3(3) of the Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987. It must decide whether that conduct, viewed cumulatively and taking into account any extenuating circumstances, has fallen below the standards of probity and competence appropriate for persons fit to be directors of companies.’ and ‘Some of the examples given by the judge are of extenuating circumstances which accompanied the conduct in question. These are matters which it seems to me would always be proper for the court to take into account. On the other hand, if the judge meant that the court was concerned with anything other than whether the conduct, taken in its setting, fell below the appropriate standard, I would respectfully disagree.’
References: [1995] Ch 241, [1995] 3 WLR 1
Judges: Henry LJ, Hoffmann LJ, Neill LJ
Statutes: Company Directors Disqualification Act 1986 6, Insolvent Companies (Disqualification of Unfit Directors) Proceedings Rules 1987
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002 (, Times 29-Nov-02, Gazette 23-Jan-03, [2002] EWCA Civ 1642, [2003] 1 WLR 577, [2003] Lloyds Rep IR 131, [2003] 1 All ER (Comm) 140)
    The appellant asked the Court to reverse a decision on the facts reached in the lower court.
    Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
  • Cited – Moyna v Secretary of State for Work and Pensions HL 31-Jul-2003 ([2003] 4 All ER 162, (2003) 73 BMLR 201, , [2003] UKHL 44, , Times 11-Aug-03, [2003] 1 WLR 1929)
    The appellant had applied for and been refused disability living allowance on the basis of being able to carry out certain cooking tasks.
    Held: The purpose of the ‘cooking test’ is not to ascertain whether the applicant can survive, or enjoy a . .
  • Cited – The Secretary of State for Trade and Industry v Goldberg, Mcavoy ChD 26-Nov-2003 ([2003] EWHC 2843 (Ch), , Times 02-Dec-03)
    The Secretary of State sought a disqualification order. The director argued that one shoul not be made in the absence of some breach of legal duty, some dishonesty should be shown.
    Held: The answer was a mixture of fact and law. A breach of . .
  • Cited – Secretary of State for Trade and Industry v Paulin ChD 13-May-2005 (, [2005] EWHC 888 (Ch), Times 26-May-05)
    The director sought to appeal an order disqualifying him form acting as a company director.
    Held: The disqualification proceedings were properly charactised as insolvency proceedings and therefore there was no requirement for permission to . .
  • Cited – Agulian and Another v Cyganik CA 24-Feb-2006 (, [2006] EWCA Civ 129)
    The question was whether the deceased had lost his domicile of birth and acquired one of choice when living and working in the UK for 43 years. He had retained land in Cyprus, but lived here.
    Held: He had retained his domicile of birth: . .
  • Cited – Brooker and Another v Fisher CA 4-Apr-2008 (, [2008] EWCA Civ 287, [2008] Bus LR 1123, [2008] FSR 26, [2008] EMLR 13)
    The claimant had asserted a joint authorship of the song ‘A Whiter Shade of Pale’ written in the sixties. The defendant appealed saying that the claim had been brought too late, and that the finding ignored practice in the music industry. The . .
  • Cited – Bracknell Forest Borough Council v Green and Another CA 20-Mar-2009 (, [2009] EWCA Civ 238, [2009] CP Rep 31, [2009] PTSR CS49, [2009] NPC 45, [2009] HLR 38)
    The council sought possession of the property saying that the three bedroomed property was underused by the tenant and his sister. The respondents said that it was not too extensive, and that no satisfactory alternative accommodation had been . .
  • Cited – Secretary of State for Business Innovation and Skills v Aaron and Others ChD 10-Dec-2009 (, [2009] EWHC 3263 (Ch))
    The claimant sought a disqualification after the defendants had been directors of a company mis-selling Structured Capital at Risk products. The FSA had reported that they had been negligent.
    Held: ‘I do not have to decide whether or not the . .
  • Cited – Cathie and Another v Secretary of State for Business, Innovation and Skills CA 1-Jun-2012 (, [2012] EWCA Civ 739, [2012] WLR(D) 168)
    The directors appealed against disqualification orders made against them under the 1986 Act. Their company had become insolvent, owing substantial arrears of PAYE and NI contributions. The revenue had said that they had paid other creditors first. . .
  • Cited – Jones v First Tier Tribunal and Another SC 17-Apr-2013 (UKSC 2011/0123, , [2013] UKSC 19, [2013] 2 WLR 1012, [2013] 2 All ER 625, [2013] WLR(D) 142, , , , , [2013] 2 AC 48)
    The claimant had been injured when a lorry driver swerved to avoid hitting a man who stood in his path. He said that the deceased’s act of suicide amounted to an offence of violence under the 1861 Act so as to bring his own claim within the 2001 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.182943

Scarfe v Adams: CA 1981

Transfer deeds for a sale of land did not define the boundary but referred to a plan which was held to be too small to show a precise boundary. The only other element of the parcels clause was that it was land adjoining Pyle Manor and that it was part of the land comprised in the specified title). The coiurt had to identify what land was transferred.
Held: The court criticised the use by solicitors of small scale plans on conveyances and set out the principles for deciding what criteria were to be applied in incorporating plans into conveyances or transfers. Extrinsic evidence was admissible because the Ordnance Survey map used in the conveyance to identify the relevant property had been wholly inadequate due to its small scale. However, if the terms of the transfer clearly define the land, extrinsic evidence is not admissible to contradict the transfer.
Cumming-Bruce LJ said: ‘the question raised in these proceedings is only the proper construction to the Plaintiff’s Transfer Deed. And the starting point is that extrinsic evidence is not admissible as an aid to its construction unless the relevant provisions of the deed are uncertain, contradictory or ambiguous. Counsel for the Plaintiff submits that this deed is uncertain, contradictory and ambiguous. Counsel in the court below invited the judge to admit evidence as to facts and circumstances from which the common intention of the vendor and purchaser was to be collected in order to understand the true meaning of the deed which they made, and the true effect of the plan to which they referred as showing the land transferred. The judge admitted extrinsic evidence de bene esse but decided that there was no such uncertainty or ambiguity as to make it right to admit that evidence as an aid to construction. . . The learned deputy judge said that he had derived most assistance from the cases of Grigsby v Melville [1973] 3 All ER 455 and Neilson v Poole [1969] 20 P and CR 909. The judge was wrong in thinking that Grigsby was an action for rectification. The decision was founded on the determination that, as a matter of construction, the deed was clear, certain and unambiguous, so there was no room for extrinsic evidence about the inconvenient consequences. Neilsen v Poole was a case in which Megarry J as a matter of construction of the conveyance with plan attached, decided that it was uncertain and that therefore it was right to admit and consider extrinsic evidence. Having done so, Megarry J decided that the conveyance as a whole and the dividing line on the plan showed that the dividing line was along a line drawn on the plan, and the other conveyances supported the conclusion. I have difficulty in understanding how the decision of either case or the reasoning of Megarry J supported the deputy judge’s conclusion.

. . . ‘The facts of the present case are really very simple, but I hope that this judgment will be understood by every conveyancing solicitor in the land as giving them warning, loud and clear, that a conveyancing technique which may been effective in the old days to convey large property from one vendor to one purchaser will lead to nothing but trouble, disputes and expensive litigation if applied to the sale to separate purchasers of a single house and its curtilage divided into separate parts. For such purposes it is absolutely essential that each parcel conveyed shall be described in the conveyance or transfer deed with such particularity and precision that there is no room for doubt about the boundaries of each, and for such purposes if a plan is intended to control the description, an Ordnance map on a scale of 1:2500 is worse than useless. The plan or other drawing bound up with the deed must be on such a large scale that it clearly shown with precision where each boundary runs. In my view the parties to this appeal are the victims of sloppy conveyancing for which the professional advisers of vendor and purchasers appear to bear the responsibility. We are not concerned in this appeal with determining or apportioning that responsibility. This court has to try to reduce to order the confusion created by the conveyancers.’
Griffiths LJ said: ‘Although we have had the benefit of a fairly extensive citation of authority, I do not find it necessary to review these authorities, as I regard the legal principle to be applied in this appeal as well established and the cases cited as illustrations of the practical application of that principle. The principle may be stated thus: if the terms of the transfer clearly define the land or interest transferred extrinsic evidence is not admissible to contradict the transfer. In such a case, if the transfer does not truly express the bargain between vendor and purchaser, the only remedy is by way of rectification of the transfer. But, if the terms of the transfer do not clearly define the land or interests to transfer it, then extrinsic evidence is admissible so the court may (to use the words of Lord Parker in Eastwood v Ashton [l915] AC 900 at 913) ‘do the best it can to arrive at the true meaning of the parties upon a fair consideration of the language used.’
References: [1981] 1 All ER 843
Judges: Cumming-Bruce LJ, Griffith LJ
Jurisdiction: England and Wales
This case cites:

  • Cited – Eastwood v Ashton HL 1915 ([1915] AC 900)
    A contract described the property and referred to a plan attached. The conveyance used four indications: the farm sold was said to be called by a given name, to contain 84 acres odd ‘or thereabouts’, and to be in the occupation of two different . .
  • Cited – Neilson v Poole ChD 1969 ([1969] 20 P and CR 909)
    The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
  • Cited – Grigsby v Melville CA 6-Jul-1973 ([1973] 3 All ER 455)
    The seller had owned two adjoing properties. He sold one off to the plaintiff, describing it in the conveyance as ‘all that dwellinghouse’. A cellar under the part sold off had access only from the retained property, but contained supports for the . .
  • Cited – Kingston v Phillips CA 1976 (Unreported, 1976 Transcript 279)
    The court was asked to construe a parcels clause in a transfer: ‘It will be observed that the parcels as there set out are really almost devoid of any particularity; all that is said about the property conveyed is that it is part of the Chicklade . .

This case is cited by:

  • Cited – Partridge and others v Lawrence and others CA 8-Jul-2003 (, [2003] EWCA Civ 1121, [2004] 1 P and CR 176)
    The appellants challenged a finding as to the width of a right of way over their land as exercised by the respondents.
    Held: The appeal was allowed in part. Peter Gibson LJ said: ‘The claimants now have the security that this court is . .
  • Cited – Adam v Shrewsbury, Shrewsbury CA 28-Jul-2005 (, [2005] EWCA Civ 1006)
    The neighbour parties disputed the existence of a right of way over one plot. . .
  • Cited – Clarke and Clarke v O’Keefe and O’Keefe CA 21-Oct-1997 (, [1997] EWCA Civ 2539, (1997) 80 PandCR 126)
    The plaintiff had bought from the vendor a piece of land, bordering a field retained by him. The conveyance plan showed a vegetation boundary with a dotted line, but its precise position on the ground was unclear to them both. Accordingly, they went . .
  • Cited – Joyce v Rigolli CA 2-Feb-2004 (, [2004] EWCA Civ 79)
    An agreement to resolve a boundary dispute does not need to comply with formalities of the Act.
    Sir Martin Nourse said: ‘The agreement between the parties served merely to demarcate the boundary between their respective properties. It had not . .
  • Cited – Hillman and Hillman v Rogers and Rogers CA 19-Dec-1997 (, [1997] EWCA Civ 3069)
    The parties disputed rights of way. The court considered the use of extrinsic evidence to construe the conveyance at issue. Robert Walker LJ: ‘It is to my mind clearly a case in which the court needs all the help it can get, and is entitled to make . .
  • Cited – Hillman and Hillman v Rogers and Rogers CA 30-Apr-1998 (Gazette 07-May-98, , [1998] EWCA Civ 746)
    A court order can properly be recalled to correct an error before it had been perfected. This appeal was rejected also as attempt to re-litigate the interpretation of a section in the appeal judgement. . .
  • Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 1-Jul-1998 (, [1998] EWCA Civ 1121)
    Boundary Dispute . .
  • Cited – Kenneth Albert Clarke; Marie Elizabeth Clarke v Victor L Oates and Maliga Deri Oates CA 10-Jun-1999 (, [1999] EWCA Civ 1552)
    Boundary dispute . .
  • Cited – Druce v Druce CA 11-Feb-2003 (, [2003] EWCA Civ 535)
    The parties disputed the extent of land conveyed. The conveyance described the plan as for identification purposes only but the decsription went on to say that it was ‘more particularly delineated on’.
    Held: In the circumstances the plan would . .
  • Cited – Gillon v Baxter and Another CA 10-Oct-2003 (, [2003] EWCA Civ 1591)
    Boundary dispute . .
  • Cited – Horn and Another v Phillips and Another CA 18-Dec-2003 ([2003] EWCA Civ 1877, )
    In a boundary dispute, extrinsic evidence was not admissible to contradict, in this, case the transfer with an annexed plan, which clearly showed the boundary as a straight line and even contained a precise measurement of distance. . .
  • Cited – Woolls v Powling CA 9-Mar-1999 (Times 09-Mar-99, , [1999] EWCA Civ 751)
    A plan attached to a conveyance for identification purposes only’ could still be used, when clear, to determine just where the boundary lay. If the transfer is clear, extrinsic evidence cannot be used to clarify the precise boundary.
    The . .
  • Cited – Mulvaney v Jackson, Gough, Holmes and Holmes CA 24-Jul-2002 (Times 27-Aug-02, , Gazette 03-Oct-02, [2002] EWCA Civ 1078, [2003] P and CR 16, [2002] 44 EG 175, [2003] 4 All ER 83, [2003] 1 WLR 360)
    Several cottages and adjacent open land had been in common ownership. The cottages were sold off individually with rights of way over the plot, but the land had been used as garden by the cottagers. The land owner removed a flower bed.
    Held: . .
  • Cited – Pennock and Another v Hodgson CA 27-Jul-2010 (, [2010] EWCA Civ 873)
    In a boundary dispute, the judge had found a boundary, locating it by reference to physical features not mentioned in the unambigous conveyance.
    Held: The judge had reiterated but not relied upon the statement as to the subjective views of the . .
  • Cited – Dixon and Another v Hodgson and Others CA 20-Dec-2011 (, [2011] EWCA Civ 1612)
    The parties were in a boundary dispute. The court warned of the danger of deciding where a boundary is by simply relying on the physical appearance of the ground features to the neglect or exclusion of the title documents. The Recorder had found . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.182549

Millar v Galashiels Gas Co Ltd; Galashiels Gas Company Ltd v O’Donnell: HL 20 Jan 1949

A hoist mechanism failed, the employee was injured, and he sought damages from his employer under the Act.
Held: The section imposes an absolute obligation to maintain work equipment in an efficient state or in efficient working order. The duty imposed was an absolute and continuing obligation, so that proof of any failure in the mechanism of a hoist or lift established a breach of statutory duty, even though it was impossible to anticipate such failure before the event or to explain it afterwards, and even though all reasonable steps had been taken to provide a suitable hoist or lift and to maintain it properly.
References: [1949] AC 275, [1949] SC (HL) 31, [1949] UKHL 2, 47 LGR 213, 1949 SLT 223, 65 TLR 76, [1949] LJR 540, [1949] AC 275, [1949] 1 All ER 319
Links: Bailii
Judges: Lord Morton of Henryton
Statutes: Factories Act 1937 22(1)
Jurisdiction: Scotland
This case is cited by:

  • Cited – Hislop v Lynx Express Parcels IHCS 3-Apr-2003 (Times 17-Apr-03, , [2003] ScotCS 98)
    The claimant was injured when, after stopping the vehicle he was driving for his employers, he was scalded when the radiator cap flew off. He appealed against the dismissal of his claim on the basis that he had been unable to show any fault.
  • Cited – Lewis v Avidan Ltd (T/A High Meadow Nursing Home) CA 13-Apr-2005 (, [2005] EWCA Civ 670)
    A nurse claimed damages after slipping on a patch of water in the nursing home where she worked. The defendant argued that the pipe which had broken was not equipment so as to make it liable.
    Held: The nurse’s appeal failed. The mere fact of . .
  • Cited – Smith v Northamptonshire County Council HL 20-May-2009 (, [2009] UKHL 27, Times 21-May-09, [2009] 4 All ER 557, [2009] 1 WLR 2353, [2009] All ER (D) 170)
    The claimant, a health care worker was visiting the home of a client when she fell from a defective wheelchair ramp and suffered injury. She sought damages from her employer.
    Held: Her appeal failed (Lord Hope and Lady Hale dissenting). The . .
  • Cited – Munro v Aberdeen City Council SCS 17-Sep-2009 (, [2009] ScotCS CSOH – 129)
    The pursuer was injured slipping on ice in her defender employer’s car park. Liability depended on the interpretation of regulation 5, the claimant saying that it imposed an absolute requirement to maintain the workplace in efficient working order . .
  • Applied – Stark v Post Office CA 2-Mar-2000 (Times 29-Mar-00, Gazette 06-Apr-00, , [2000] EWCA Civ 64, [2000] PIQR 105, [2000] ICR 1013)
    A component in a postman’s bicycle gave way even though the machine had been sensibly maintained and checked. He sought damages for his injuries.
    Held: The duty imposed by the regulations was absolute, and an employee postal worker who was . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.181179

Regina (Lika) v Secretary of State for the Home Department: CA 16 Dec 2002

The applicant was an ethnic Albanian, whose application for asylum had been rejected on the ground that he had passed through Germany. The Dublin Convention did not create rights enforceable by individuals, its purpose is to produce a system which will benefit asylum seekers generally. It does so by governing the responsibilities of the member states. It could not create a legitimate expectation.
References: [2002] EWCA Civ 1855, [2002] All ER (D) 230
Links: Bailii
Judges: Mr Justice Lawrence Collins, Lord Justice Latham
Statutes: Asylum and Immigration Act 1996 292)
Jurisdiction: England and Wales
This case cites:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.178441

Ahsan Ullah, Thi Lien Do v Special Adjudicator, Secretary of State for the Home Department: CA 16 Dec 2002

The appellants challenged refusal of asylum, claiming that their return to countries which did not respect their religion, would infringe their right to freedom of religious expression. It was accepted that the applicants did not have a sufficient well founded fear of persecution in the general sense.
Held: The Convention had come to regulate in part how signatory countries controlled their immigration, but controlled signatory states as to their treatment of those within their jurisdiction only. The right to control immigration might trump the human rights of those whose movement was to be controlled. The claimants sought the right to practise and preach their religions freely. The extension of Convention rights conflicted with the principle of territoriality, and had only been allowed for article 3. The present court was not required to take it further for article 9 where the interference in the exercise of that right fell short of being article 3 ill-treatment.
‘a removal decision to a country that does not respect article 9 rights will not infringe the 1998 Act where the nature of the interference with the right to practise religion that is anticipated in the receiving state falls short of article 3 ill-treatment. It may be that this does not differ greatly, in effect, from holding that interference with the right to practise religion in such circumstances will not result in the engagement of the Convention unless the interference is ‘flagrant’.’
References: Times 18-Dec-2002, Gazette 13-Mar-2003, [2003] 1 WLR 770, [2002] EWCA Civ 1856, [2003] 3 All ER 1174, [2003] UKHRR 302, [2003] Imm AR 304, [2003] ACD 30, [2003] INLR 74, [2003] HRLR 12
Links: Bailii
Judges: Lord Justice Kay, Lord Justice Dyson, Lord Phillips MR
Statutes: European Convention on Human Rights Art 3 Art 9, Human Rights Act 1998
Jurisdiction: England and Wales
This case cites:

  • Cited – Soering v The United Kingdom ECHR 7-Jul-1989 (14038/88, (1989) 11 EHRR 439, , [1989] ECHR 14, , ECLI:CE:ECHR:1989:0707JUD001403888)
    (Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
  • Cited – Abdulaziz etc v The United Kingdom ECHR 28-May-1985 (9214/80, 9473/81, 9474/80, (1985) 7 EHRR 471, , [1985] ECHR 7)
    Three women, all lawfully settled in the UK, had married third-country nationals but, at first, the Secretary of State had refused permission for their husbands to remain with them, or join them, in the UK.
    Held: The refusals of permission had . .
  • Cited – Bensaid v The United Kingdom ECHR 6-Feb-2001 (44599/98, (2001) 33 EHRR 205, (2001) 33 EHRR 10, [2001] ECHR 82, , [2001] INLR 325, 11 BHRC 297)
    The applicant was a schizophrenic and an illegal immigrant. He claimed that his removal to Algeria would deprive him of essential medical treatment and sever ties that he had developed in the UK that were important for his well-being. He claimed . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.178442

Midland Bank Trust Co Ltd v Hett Stubbs and Kemp (a firm): ChD 1978

A solicitor had failed to register an option as a land charge over property. The court was asked what steps should have been taken by a solicitor in the conduct of a claim: ‘Mr Harman [leading counsel for the plaintiff] sought to rely upon the fact that Mr Stubbs was Geoffrey’s solicitor under some sort of general retainer imposing a duty to consider all aspects of his interest generally whenever he was consulted, but that cannot be. There is no such thing as a general retainer in that sense. The expression ‘my solicitor’ is as meaningless as the expression ‘my tailor’ or ‘my bookmaker’ in establishing any general duty apart from that arising out of a particular matter in which his services are retained. The extent of his duties depends upon the terms and limits of that retainer and any duty of care to be implied must be related to what he is instructed to do.
While No doubt the duties owed by a solicitor to his client are high in the sense that he holds himself out as practising a highly skilled and exacting profession. But I think that the court must beware of imposing upon solicitors – or upon professional men in other spheres – duties which go beyond the scope of what they are requested and undertake to do. It may be that a particularly meticulous and conscientious practitioner would, in his client’s general interest, take it upon himself to pursue a line of enquiry beyond the strict limits comprehended by his instructions. But that is not the test. The test is what the reasonably competent practitioner would do having regard to the standards normally adopted in his profession, and cases . . demonstrate that the duty is directly related to the confines of the retainer.’ The solicitors accepted ‘a common law duty not to injure their client by failing to do what they had undertaken to do and which, at their invitation, he relied on them to do.’
References: [1979] Ch 384, [1978] 3 All ER 571, [1978] 3 WLR 167, [1955-95] PNLR 95
Judges: Oliver J
Jurisdiction: England and Wales
This case cites:

  • Cited – Candler v Crane Christmas and Co CA 15-Dec-1950 ([1951] 2 KB 164, [1951] 1 All ER 426, 36 Digest (Rep 1) 17, [1951] 1 TLR 371)
    Though the accounts of the company in which the plaintiff had invested had been carelessly prepared and gave a wholly misleading picture of the state of the company, the plaintiff could not recover damages. A false statement, carelessly, as . .
  • Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963 ([1964] AC 465, [1963] 2 All ER 575, , , [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, )
    The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
  • Cited – Griffiths v Evans CA 1953 ([1953] 2 All ER 1364, [1953] 1 WLR 1424)
    The parties disputed the terms on which the solicitor had been engaged, and in particular as to the scope of the duty undertaken by and entrusted to the solicitor as regards advising the client.
    Held: Where there is a dispute between a . .

This case is cited by:

  • Cited – Johnson v Gore Wood and Co (a Firm) CA 12-Nov-1998 (, [1998] EWCA Civ 1763, [1999] BCC 474)
    The claimant had previously issued a claim against the defendant solicitors through his company. He now sought to pursue a claim in his own name. It was resisted as an abuse of process, and on the basis that no personal duty of care was owed to the . .
  • Cited – Brinn and Another v Russell Jones and Walker (A Firm) QBD 12-Dec-2002 (, [2002] EWHC 2727 (QB))
    Police officers had instructed their solicitor to sue in defamation. By their negligence the chance of a claim was lost. They instructed a second firm of solicitors to claim against the first, but this firm also were negligent. The damages fell to . .
  • Cited – Commissioner of Police of the Metropolis v Lennon CA 20-Feb-2004 (, [2004] EWCA Civ 130, Times 25-Feb-04, Gazette 18-Mar-04, [2004] 2 All ER 266)
    The claimant police officer considered being transferred to Northern Ireland. He asked and was incorrectly told that his housing allowance would not be affected by taking time off work.
    Held: The break between employments had affected his . .
  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .
  • Cited – John Mowlem Construction Plc v Neil F Jones and Co CA 1-Jul-2004 (, [2004] EWCA Civ 768, Times 27-Aug-04, (2005) 83 BMLR 175)
    The defendant’s solicitors were alleged to have failed to advise their clients when an issue was raised, to notify their professional negligence insurers, with the result that the insurers had been able to repudiate liability.
    Held: In the . .
  • Cited – Precis (521) Plc v William M Mercer Ltd CA 15-Feb-2005 (, [2005] EWCA Civ 114, Times 24-Feb-05, [2005] PNLR 511)
    Purchasers of a company sought to claim in negligence against the respondent actuaries in respect of a valuation of the company’s pension funds.
    Held: There was a paucity of authority as to when a duty of care was assumed. The words used and . .
  • Cited – Ratiu, Karmel, Regent House Properties Ltd v Conway CA 22-Nov-2005 (, [2005] EWCA Civ 1302, Times 29-Nov-05, [2006] 1 All ER 571)
    The claimant sought damages for defamation. The defendant through their company had accused him acting in such a way as to allow a conflict of interest to arise. They said that he had been invited to act on a proposed purchase but had used the . .
  • Cited – The Football League Ltd v Edge Ellison (A Firm) ChD 23-Jun-2006 (, [2006] EWHC 1462 (Ch))
    The claimants operated football leagues, and asked the defendant solicitors to act in negotiating the sale of television rights to ONdigital. The broadcasts went ahead, but no guarantees were taken for the contract. The claimants alleged . .
  • Cited – Glyn v McGarel-Groves CA 14-Jul-2006 (, [2006] EWCA Civ 998, Times 22-Aug-06)
    The claimant had employed a French veterinary surgeon to treat her horse ‘Anna’. She engaged the defendant English veterinary surgeon to attend the treament and observe. The horse died at the principal negligence of the French vet. The English vet . .
  • Cited – Hicks v Russell Jones and Walker (A Firm) ChD 27-Apr-2007 (, [2007] EWHC 940 (Ch))
    The claimants sought to pursue an action in negligence against their solicitors saying that they had conducted another case negligently, and thereby they had lost their chance in the action, on the basis that the hotel at the centre of the action . .
  • Cited – Associated Newspapers Ltd, Regina (on The Application of) v Rt Hon Lord Justice Leveson Admn 20-Jan-2012 (, [2012] EWHC 57 (Admin))
    The defendant was conducting a public enquiry into the culture, ethics and practices of national newspapers. The claimant and others objected to the admission of anonymous evidence from journalists afraid of career blight. The claimants complained . .
  • Approved – Bown v Gould and Swayne CA 1996 ([1996] 1 PNLR 130)
    Millett LJ commented that if a judge needed assistance with regard to conveyancing practice the proper way was to cite the relevant textbooks. . .
  • Cited – Kandola v Mirza Solicitors Llp ChD 27-Feb-2015 (, [2015] EWHC 460 (Ch))
    The claimant alleged professional negligence by the defendant solicitors who had acted for him in the purchase of a property. The deposit paid by the claimant had been lost after being paid to the seller’s solicitors as agents for the vendor. The . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.190233

Brook v Smith: 26 Nov 1830

The testator devised his estate to two tenants in common in fee ; one died after the testator, leaving an infant heir. In a creditor’s suit after a decree for sale of the estate, the infant heir was ordered to join in the conveyance to the purchaser
References: [1830] EngR 862, (1830) 2 Russ and My 73, (1830) 39 ER 322
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.321742

Hall v Hall: 7 Dec 1850

References: [1850] EngR 943, (1850) 3 Mac and G 79, (1850) 42 ER 191
Links: Commonlii
Jurisdiction: England and Wales
This case cites:

  • See Also – Hall v Hall 26-Jan-1850 ([1850] EngR 203, , (1850) 12 Beav 414, (1850) 50 ER 1119)
    Partnership dissolution . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.298290

CL (Vietnam) v Secretary of State for the Home Department: CA 10 Dec 2008

When considering whether to order the return of an unaccompanied child asylum seeker, it was for the court also to consider the appropriateness of the arrangements for his care which might be available on his return, and not just for the Secretary of State to decide. The Tribunal had confused the respondent’s own duties to keep such arrangements under review with the obligations of the court system.
References: [2008] EWCA Civ 1551, Times 07-Jan-2009, [2009] 1 WLR 1873, [2009] Imm AR 403
Links: Bailii
Judges: Lord Justice Sedley, Lord Justice Keene and Lady Justice Smith
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.291909

HF (Algeria) v Secretary of State for the Home Department: CA 13 May 2008

‘The applicant came to this country from Algeria in February 2004 and claimed asylum. His case, in summary, was that since 2001 he had acted as a an informer for the police against the GIA, but this had led to him receiving threats from the GIA and to his family being attacked and his father killed; that he had moved twice to escape from the GIA but was afraid of being found by them; and that the police were unable or unwilling to protect him.’
References: [2008] EWCA Civ 590
Links: Bailii
Judges: Lord Justice Richards
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.268707

Regina (Smith) v Secretary of State for the Environment, Transport and the Regions and others: Admn 19 Dec 2001

References: [2001] EWHC Admin 1170
Links: Bailii
Judges: Mr Justice Silber
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Rochdale Metropolitan Borough Council, Ex Parte Milne (2) QBD 31-Jul-2000 (Gazette 31-Aug-00, [2001] JPL 470, [2001] Env LR 406, (2001) 81 PandCR 365)
    Developers submitted applications for outline permission for the development of a business park. The applicant sought to quash the grant on the basis that the environmental assessment was insufficiently detailed, and contained reserved matters, and . .

This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.168013

Regina (on the Application of Prytherch) v Conwy Borough Council: Admn 19 Oct 2001

The claimant seeks a quashing order in respect of the decision of the defendant to grant conditional planning permission for the construction of a landfill leachate treatment plant within the former quarry situated at Llandulas which has, for a number of years, been lawfully used a waste disposal site.
References: [2001] EWHC Admin 869
Links: Bailii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.167245

Riverlate Properties Ltd v Paul: CA 1974

A lessor sought to have the lease rectified against the tenant, saying the tenant had sufficient knowledge of the error in the lease to permit that remedy.
Held: The tenant had no such knowledge as would have brought the doctrine into play. In approving the dicta in Roberts with regard to rectification for unilateral mistake, the court added: ‘Whether there was in any particular case knowledge of the intention and mistake of the other party must be a question of fact to be decided upon the evidence. Basically it appears to us that it must be such as to involve the lessee in a degree of sharp practice.’
References: [1975] Ch 133, [1974] 2 All ER 656
Judges: Russell, Stamp and Lawton L.JJ
Jurisdiction: England and Wales
This case cites:

  • Approved – A Roberts and Co Ltd v Leicestershire County Council ChD 1961 ([1961] Ch 555, [1961] 2 All ER 545)
    The court considered the circumstances required for rectification of a contract after a unilateral mistake. Pennycuick J said: ‘a party is entitled to rectification of a contract upon proof that he believed a particular term to be included in the . .

This case is cited by:

  • Cited – George Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005 (, [2005] EWCA Civ 77, Times 16-Feb-05, [2005] BLR 135)
    A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
    Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
  • Cited – Thomas Bates and Sons Ltd v Wyndham’s Lingerie Ltd CA 21-Nov-1980 ([1981] 1 WLR 505, , [1980] EWCA Civ 3, [1981] 1 All ER 1077)
    An application was made for rectification of a rent review clause in a lease. When executing the lease, the tenants’ officer, Mr Avon, noticed that the rent review clause in the lease drafted by the landlords was defective in not including a . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.222560

Wilkinson v Corfield: PD 26 Jan 1881

A legatee who has propounded a codicil and succeeded is entitled to the same costs as an executor under similar circumstances.
The defendant, the executor of the will of RC, had proved the will only.
The plaintiffs propounded a codicil. The Court having pronounced for the codicil, condemned the defendant in costs, and gave the plaintiffs also out of the estate such sum nomine expensarum as would cover the additional expenses.
References: (1881) 6 PD 27, [1881] UKLawRpPro 5, (1880-1881) LR 6 PD 27
Links: Commonlii
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Worby, Worby and Worby v Rosser CA 28-May-1999 (Times 09-Jun-99, Gazette 16-Jun-99, , [1999] EWCA Civ 1520, [2000] PNLR 140)
    Three potential beneficiaries sought payment from a solicitor of the costs of resisting the grant of probate to a will, saying that he had owed them a duty of care to ensure that the testator did not execute a later will in circumstances in which he . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.195582

Regina v Pisciotto: CACD 27 Jun 2002

The defendant was subject to a confiscation order. The judge had postponed the determination of the amount, but without specifying when it would take place.
Held: The requirement in the Act was mandatory. When deciding to postpone an assessment beyond the six month limitation period, the court must specify the date on which it would be determined. Appeal allowed.
References: Times 19-Jul-2002, Gazette 12-Sep-2002, [2003] 1 Cr App R 68, [2002] EWCA Crim 1592
Links: Bailii
Judges: Lord Justice Keene, Mr Justice Davis and Judge John Griffith Williams, QC
Statutes: Drug Trafficking Act 1994 3(1)
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Davies CACD 22-May-2001 ([2002] 1 WLR 1806, [2001] EWCA Crim 2902, (2002) Crim LR 224, [2001] All ER (D) 268, [2001] 2 Lloyds Rep 348)
    The judge when sentencing the offender set a timetable for the purpose of determinations under the 1994 Act, requiring disclosure of assets and expenditure by the defendant within 28 days and a prosecutor’s statement within 28 days thereafter.
  • Cited – Regina v Ross CACD 3-Apr-2001 (Times 03-Apr-01, (2001) 2 Cr App R (S))
    . .
  • Doubted – Regina v Copeland CACD 2002 ([2002] EWCA Crim 736, [2002] 2 Cr App R(S) 512)
    The court considered the necessary of any postponment of a dermination of a confiscation order.
    Held: The court rejected the contention that the postponement order must specify the period of postponement. It was pointed out that the word used . .
  • Disapproved in – Sekhon, etc v Regina CACD 16-Dec-2002 (Times 27-Dec-02, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, , [2002] EWCA Crim 2954)
    The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
    Held: The courts must remember the importance of such procedures in the fight against crime, . .
  • Cited – Regina v Davies CACD 22-May-2001 ([2002] 1 WLR 1806, [2001] EWCA Crim 2902, (2002) Crim LR 224, [2001] All ER (D) 268, [2001] 2 Lloyds Rep 348)
    The judge when sentencing the offender set a timetable for the purpose of determinations under the 1994 Act, requiring disclosure of assets and expenditure by the defendant within 28 days and a prosecutor’s statement within 28 days thereafter.

This case is cited by:

  • Disappoved – Sekhon, etc v Regina CACD 16-Dec-2002 (Times 27-Dec-02, [2003] 1 Cr App R 575, [2003] 1 WLR 1655, , [2002] EWCA Crim 2954)
    The defendants appealed against confiscation orders on the basis that in various ways, the Crown had failed to comply with procedural requirements.
    Held: The courts must remember the importance of such procedures in the fight against crime, . .
  • Cited – Regina v Knights and Another HL 21-Jul-2005 (, [2005] UKHL 50, , Times 21-Jul-05, [2006] 1 AC 368, [2005] 4 All ER 347, [2005] 3 WLR 330)
    The defendants had been convicted of offences involving dealing with goods on which customs duty had not been paid. After conviction a timetable was set for sentencing and for confiscation proceedings. The House considered the making of the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.174113

Regina v McGovern: CACD 13 Feb 1998

The court considered an application to withdraw an unequivocal guilty plea: ‘What is, of course, highly material is whether or not on the Crown case there was evidence to support the charge in the terms to which the plea was entered and whether or not the instructions given by the defendant at the time the plea was entered were consistent with the basis of the plea being put forward.’
References: [1998] EWCA Crim 528, 9701076/X4
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Regina v Mason CACD 18-Nov-2004 (, [2004] EWCA Crim 2848)
    The defendant had entered a plea of guilty to a charge of manslaughter, but now sought to vacate that plea. There had been a fight after a wedding reception. The defendant was said to have joined in a multi-handed attack on the victim. The defendant . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.153402

Seabord Offshore Ltd v Secretary of State for Transport (The Safe Carrier): HL 25 Mar 1994

The House was asked whether a ship manager was legally responsible for the acts of the ship’s chief engineer under s31(1) of the Merchant Shipping Act 1988, which imposed a duty on the manager to take all reasonable steps to secure that the ship was operated in a safe manner. The prosecution had failed because the case had not been presented at trial before the Justices in a manner which enabled them to consider whether the manager had failed to take all reasonable steps. It was too late to argue on appeal that there had been a failure to establish adequate systems for securing that the ship did not go to sea before the chief engineer had sufficient opportunity to familiarise himself with its machinery and equipment.
Held: The Act does not impose vicarious liability on the owners of ships for the omissions of their reasonably and properly instructed agents or employees.
Lord Keith of Kinkel showed his distaste for the imposition of absolute liability: ‘It would be surprising if by the language used in section 31 [of the Merchant Shipping Act 1988] Parliament had intended that the owner of a ship should be criminally liable for any act or omission by any officer of the crew or member of the crew which resulted in unsafe operation of the ship, ranging from a failure by the managing director to arrange repairs to a failure by the bosun or cabin steward to close portholes.’
References: Independent 24-Mar-1994, Gazette 11-May-1994, Times 25-Mar-1994, [1994] 2 All ER 99, [1994] 1 WLR 541
Judges: Lord Keith of Kinkel
Statutes: Merchant Shipping Act 1988 31
Jurisdiction: England and Wales
This case is cited by:

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.89078

Regina v Ulcay: CACD 19 Oct 2007

The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist saying that they had no time properly to prepare the case.
Held: The judge was right to have refused a lengthy adjournment. The defendant had himself procured the difficulty, but an adjournment of a day or so in order to take stock and, if necessary, allow new representatives to be properly instructed is another thing. If that is what fairness requires, that is what needs to happen. There is a danger that pressing on regardless may lead to errors being made and, importantly, to a situation where justice is not seen to be done.
Whilst a legal representative could not be obliged to continue in a case where he complained of professional embarrassment, where that resulted only from the lateness of instructions, he would normally be expected to do the best he could in the circumstances.
The court discussed counsel’s duty: ‘The correct meaning of the phrase ‘acting on instructions’, as it applies to the professional responsibility of the advocate in any criminal court, is sometimes misunderstood, even by counsel. Neither the client, nor if the advocate is a barrister, his instructing solicitor, is entitled to direct counsel how the case should be conducted. The advocate is not a tinkling echo, or mouthpiece, spouting whatever his client ‘instructs’ him to say. In the forensic process the client’s ‘instructions’ encompass whatever the client facing a criminal charge asserts to be the truth about the facts which bring him or her before the court. Those instructions represent the client’s case, and that is the case which the advocate should advance. In practical terms, that will often mean that prosecution witnesses will be cross-examined on the basis that they are lying or mistaken, or have misunderstand or misinterpreted something said or done by the defendant; however there is almost always some evidence advanced by the prosecution which, on the basis of the client’s instructions, is not in truth in issue at all, either directly, or indirectly. Some decisions, of course, must be made not by the advocate, but by the defendant personally, for example, and pre-eminently, the plea itself, and in the course of the trial, the decision whether or not to give evidence. ‘
Sir Igor Judge P discussed the effect of the regulations when considering an application to transfer a Legal Aid Order: ‘The purpose of this part of the Regulations is to ensure that the client does not manipulate the system, seeking to change his lawyers for dubious reasons which include, but are not limited to, the fact that the lawyer offers sensible but disagreeable advice to the client. Claims of a breakdown in the professional relationship between lawyer and client are frequently made by defendants, and they are often utterly spurious. If the judge intends to reject an application for a change of legal representative he may well explain to the defendant that the consequence may be that the case will continue without him being represented at public expense. The simple principle remains that the defendant is not entitled to manipulate the legal aid system and is no more entitled to abuse the process than the prosecution. If he chooses to terminate his lawyer’s retainer for improper motives, the court is not bound to agree to an application for a change of representation. What we find in practice in most cases is that courts faced with this problem are usually prepared to agree to at least one change of representative, provided they are proposed in reasonable time before the trial, and before substantial costs have already been expended in the preparation of the defence case. In the end, however, the ultimate decision for the court is case and fact specific, and it does not follow from the repeated [incantation] of the mantra ‘loss of confidence’ that an application will be granted.’
References: [2007] EWCA Crim 2379, Times 07-Nov-2007, [2008] 1 WLR 1209, [2008] 1 All ER 547
Links: Bailii
Judges: Sir Igor Judge P, Pitchers J, Openshaw J
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Jones (Robert) No 2 1972 ([1972] 1 WLR 887, [1972] 56 CAR 413)
    The court was entitled to proceed to hear the case in the absence of the defendant where he had absconded. I was counsel’s prerogative not the judge’s, to decide whether he could continue to represent the defendant. . .
  • Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006 (, [2006] UKHL 16, Times 30-Mar-06, [2006] 2 WLR 772, [2006] 2 CAR 9, [2002] 2 CAR 128, [2007] 1 AC 136, [2006] 2 Cr App Rep 9, [2006] 2 All ER 741, [2007] Crim LR 66)
    Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
  • Cited – Regina v G and B CACD 2004 ([2004] 2 Cr App R 37, [2004] EWCA 1368)
    Rose LJ said: ‘Both in principle and pragmatically, whether a solicitor or barrister can properly continue to act is a matter for him or her and not the court, although of course the court can properly make observations on the matter’. . .
  • Cited – Regina v Shaw CACD 1980 ([1980] 70 CAR 313)
    It was counsel who must decide whether he could continue properly to represent a client, not the judge. . .
  • Approved – Regina v Ashgar Khan 10-Jul-2001 (Unreported, 10 July 2001)
    Judge Wakerley QC expressed his concern at the numbers of applications for transfer of representation in the Crown Court. The court has a duty to bear in mind the cost to the taxpayer and that, as a result, good reason must be established before a . .

This case is cited by:

  • Approved – Clive Rees Associates, Solicitors, Regina (on The Application of) v Swansea Magistrates Court and Another Admn 30-Nov-2011 (, [2011] EWHC 3155 (Admin))
    The claimant solicitors challenged a decision of the respondents to transfer legal aid orders for the representation of clients to a second frm of solicitors.
    Held: The court considered the various cases, finding three decisions unlawful and . .
  • Cited – In re Brownlee for Judicial Review SC 29-Jan-2014 (, [2014] UKSC 4, , UKSC 2013/0247, , , [2014] NI 188)
    The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .
  • Cited – Cadamartriea, Regina v CACD 18-Oct-2019 (, [2019] EWCA Crim 1736)
    Appeal from conviction of murder – whether a fair trial after a withdrawal by his counsel at the conclusion of his evidence. Counsel had said they were professionally embarrassed by new instructions.
    Held: The appeal succeeded. The judge had . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.260057

Abdi, Regina v: CACD 31 Jul 2007

The appellant had been convicted of a sexual assault on a boy, and recommended for deportation on completion of his sentence. He had not however been served with notice of the possibility of such an order, as required by section 6 of the 1971 Act, and now appealed.
Held: The section clearly required the notice, and the court was now asked whether that was fatal to the order made. Applying Soneji, ‘we do not believe that the court should impute to Parliament an intention that non-compliance with s 6(2) should necessarily render a recommendation for deportation invalid. Unless that were the proper construction of the Act, the ground of appeal based on lack of notice must in this case fail.’ That would not leave the appellant without the ability to challenge the order, and the court considered whether it was appropriate. It was.
References: [2007] EWCA Crim 1913
Links: Bailii
Statutes: Immigration Act 1971 3(5) 3(6) 6
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Nazari CACD 1980 ((1980) 2 Cr App R (S) 84, (1980) 71 Cr App R 87, [1980] 1 WLR 1366)
    The CACD heard several appeals together, giving guidance as to the general principles to be applied in deciding on recommendations for deportation under the Act. Lawton LJ said that ‘no court should make an order recommending deportation without . .
  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , 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 – Project Blue Sky Inc v Australian Broadcasting Authority 28-Apr-1998 ((1998) 194 CLR 355, [1998] HCA 28, , (1998) 153 ALR 490, (1998) 72 ALJR 841, (1998) 8 Legal Rep 41)
    (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 . .
  • Cited – Wang v Commissioner of Inland Revenue PC 19-Oct-1994 (Gazette 19-Oct-94, [1994] 1 WLR 1286, [1995] 1 All ER 367)
    (Hong Kong) At first instance the judge found that the deputy commissioner lacked jurisdiction to make two determinations since he had not done so within a reasonable time required by the imperative language of the statute. The Court of Appeal . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.258481

Re T (A Child): CA 4 Mar 2009

Appeal by a local authority against a care order – whether supervision order more appropriate
References: [2009] EWCA Civ 121, [2009] 3 All ER 1078, [2009] 2 FCR 367, [2010] PTSR 615, [2009] 2 FLR 574, [2009] Fam Law 571
Links: Bailii
Judges: Sir Mark Potter P
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.322740

Scarf v Jardine: HL 13 Jun 1882

If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an estoppel it must be shown that the person seeking to assert an estoppel has acted on the faith of the representation: ‘I put rather an emphasis on those last words ‘against those who acted upon the faith that the authority continued.”
An election to avoid a contract is not completed until the decision has been communicated to the other side ‘in such a way as to lead the opposite party to believe that he has made that choice’.
‘Novation’ is a term derived from the civil law and therefore from Roman law. A novation operates where: ‘there being a contract in existence, some new contract is substituted for it, either between the same parties (for that might be) or between different parties; the consideration mutually being the discharge of the old contract.’
Lord Blackburn said: ‘The principle, I take it, running through all the cases as to what is an election is this, that where a party in his own mind has thought that he would choose one of two remedies, even though he has written it down on a memorandum or has indicated it in some other way, that alone will not bind him; but so soon as he has not only determined to follow one of his remedies but has communicated it to the other side in such a way as to lead the opposite party to believe that he has made that choice, he has completed his election and can go no further; and whether he intended it or not, if he has done an unequivocal act – I mean an act which would be justifiable if he had elected one way and would not be justifiable if he had elected the other way -the fact of his having done that unequivocal act to the knowledge of the persons concerned is an election.’
References: [1882] 7 AC 345, [1882] UKLawRpAC 17
Links: Commonlii
Judges: Lord Blackburn, Lord Selborne LC
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal and Another PC 23-Mar-2005 (, [2005] UKPC 16, )
    (Jamaica) The company having been taken over summarily dismissed three employees who complained to their union, and the remaining workforce were called out on strike. There was a disagreement as to whether there was a genuine redundancy situation. . .
  • Cited – Peyman v Lanjani CA 1985 ([1985] 1 Ch 457, [1985] CL 457)
    Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
  • Cited – Car and Universal Finance Company Ltd v Caldwell CA 19-Dec-1963 (, [1963] EWCA Civ 4, [1964] 1 All ER 290, [1965] 1 QB 525, [1964] 2 WLR 600)
    The defendant had sold a car, taking as payment a cheque which was dishonoured; the plaintiffs later bought the car in good faith.
    Held: The defendant was entitled to return of the car, even though the original purchaser had disappeared, and . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223952

Harington v Hoggart: 26 Nov 1830

An auctioneer who is employed to sell an estate, and who receives a deposit from the purchaser, is a mere stake-holder, liable to be called upon to pay the money at any time ; and, therefore, although he place the money in the funds and make interest of it, he is not liable to pay such interest to the vendor when the purchase is completed ; though the vendor (without the concurrence of the vendee) gave him notice to invest the money in Government securities.
References: (1830) 1 B and Ad 577, [1830] EngR 870, (1830) 109 ER 902
Links: Commonlii
Jurisdiction: England and Wales

Last Update: 22 September 2020; Ref: scu.182547

Department for Transport (Central Government): ICO 24 Jul 2020

The complainant has requested information relating to the Queensbury Tunnel from the Department for Transport (‘DfT’). The DfT refused to provide this information citing section 14(1) – vexatious request. The public authority later suggested to the Commissioner that the request could also be considered an EIR request and cited Regulation 12(4)(b) – manifestly unreasonable request. The Commissioner’s decision is that the request falls under the EIR and that Regulation 12(4)(b) is not engaged. The Commissioner requires the DfT to take the following steps to ensure compliance with the legislation.
Issue a fresh response regarding this request that does not rely on Regulation 12(4)(b) of the EIR.
EIR 12(4)(b): Complaint upheld
References: [2020] UKICO fs50896044
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653731

Maples v Revenue and Customs (Procedure – Application To Set Aside Decision): FTTTx 23 Jul 2020

PROCEDURE – application to set aside decision (or part) under Rule 38 of the F-tT Tax Chamber Rules 2009 – documentary and other procedural irregularities under Rule 38(2(a)-(c) established – not in the interests of justice to set aside the decision or part of it – application refused
References: [2020] UKFTT 305 (TC)
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653142

Mid Ulster District Council (Local Government): ICO 30 Jul 2020

The complainant has requested information from the Council in relation to the interest expressed by business in locating within a business park, which is the proposed use for land being redeveloped by the Council. The Council refused to disclose the requested information, citing regulations 12(4)(b) and 12(5)(e) of the EIR as a basis for non-disclosure. The Commissioner’s decision is that the Council has correctly applied regulation 12(5)(e) of the EIR to the requested information in parts 1 and 2 of the request, however it has incorrectly applied regulation 12(4)(b) to part 3 of the request. 3. The Commissioner requires the Council to take the following step to ensure compliance with the legislation.
Issue a fresh response to the complainant which does not rely on regulation 12(4)(b) in respect of part 3 of the request. 4. The Council must take this step within 35 calendar days of the date of this decision notice. Failure to comply may result in the Commissioner making written certification of this fact to the High Court pursuant to section 54 of the Act and may be dealt with as a contempt of court.
EIR 12(4)(b): Complaint upheld EIR 12(5)(e): Complaint not upheld
References: [2020] UKICO fs50832591
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653771

Kew Holdings Ltd v Donald Insall Associates Ltd: TCC 15 Jul 2020

Defendant’s applications for: i) an order striking out the claim for non-compliance with the order dated 5 February 2019; ii) alternatively, a stay of proceedings pending the Claimant’s payment in satisfaction of the judgment dated 5 February 2019; and iii) an order for security for costs.
References: [2020] EWHC 1862 (TCC)
Links: Bailii
Judges: Mrs Justice O’Farrell
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653344

Serious Fraud Office (Central Government): ICO 8 Jul 2020

The complainant has requested information about plea deal agreements from the Serious Fraud Office (‘SFO’). The SFO refused to provide the requested information, citing sections 31(1)(a), (b) and (c) (law enforcement) of the FOIA. The Commissioner’s decision is that the SFO was entitled to rely on the exemptions cited. No steps are required.
FOI 31: Complaint not upheld
References: [2020] UKICO fs50908836
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653788

Bradish v Revenue and Customs (Income Tax – Penalty for Late Filing): FTTTx 11 Aug 2020

INCOME TAX – Penalty for late filing of tax returns – Schedule 55 Finance Act 2009 – Penalty for late payment of tax – Schedule 56 Finance Act 2009 – Did taxpayer have a reasonable excuse – Application for permission to make a late appeal
References: [2020] UKFTT 324 (TC)
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653153

Office of The Secretary of State for Scotland (Central Government): ICO 27 Jul 2020

The complainant has requested information on specific files held by the public authority relating to the UK constitution, including the arrangements for referendums about devolution in 1997 in Scotland and Wales. The Commissioner’s decision is that the OSSS has appropriately applied the exemptions at FOIA section 35 – Formulation of government policy etc., section 28 – Relations within the United Kingdom and section 40(2) – Personal information. However, in regard to documentation engaging the section 35 exemption she finds that the public interest favours disclosure. She finds the public interest favours withholding the material engaging section 28. In respect of the exclusion at section 35(3) in relation to section 35(1)(c) – the provision of advice by any of the Law Officers, the Commissioner is not satisfied by the OSSS’s consideration of the public interest test. She finds that the balance of the public interest requires the OSSS to either confirm or deny holding information relating to law officers’ advice. The Commissioner requires the OSSS to disclose the material withheld under section 35(1)(a) and (b) in files SOE22/3, SOE22/35/3, SOE22/38/3 and the five documents from file SOE22/34/00413-00417. She also requires it to issue a further response to confirm or deny holding information relating to law officers’ advice.
FOI 28: Complaint not upheld FOI 35(1)(a): Complaint upheld FOI 35(1)(b): Complaint upheld FOI 40(2): Complaint upheld
References: [2020] UKICO FS50838691
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653782

Surrey Heath Borough Council (Local Government): ICO 29 Jul 2020

The complainant requested from Surrey Heath Borough Council (‘SHBC’) information relating to a planning application. SHBC initially cited regulation 12(5)(f) (interests of the person who provided the information) to withhold the requested information. It subsequently revised its position, saying that it did not hold the requested information. The Commissioner’s decision is that, on the balance of probabilities, SHBC does not hold the requested information. The Commissioner requires no steps as a result of this decision.
EIR 12(4)(a): Complaint not upheld
References: [2020] UKICO FER0910707
Links: Bailii
Jurisdiction: England and Wales

Last Update: 21 September 2020; Ref: scu.653795