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Regina v Hull University Visitor, ex parte Page: CA 1992

The employee’s terms included two provisions, one in his letter of appointment which provided for either party to terminate on three months’ notice in writing, and one in the university’s statutes empowering the university to dismiss him for good cause.
Held: He could be dismissed on either basis. Good cause was not required if three month’s notice was given. The right to terminate on notice was not to be cut down by the ‘good cause’ term. The court made clear, that this was a question of construction of the particular contractual documents and terms involved and no general principle of law was established that notice clauses in such contracts are to prevail over other express terms concerned with termination.
References: [1992] ICR 67
Jurisdiction: England and Wales
This case is cited by:

  • Appeal from – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL (Gazette 10-Mar-93, [1993] 3 WLR 1112, [1993] AC 682, Bailii, [1992] UKHL 12)
    The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
    The House . .
  • Cited – Kaur v MG Rover Group Ltd CA (Bailii, [2004] EWCA Civ 1507, Times 06-Dec-04, [2005] ICR 625, [2005] IRLR 40)
    The applicant was employed by the respondent who had a collective agreement with a trade union.
    Held: Not all elements of the collective agreement need be intended to be legally enforceable. She complained that the collective agreement would . .

(This list may be incomplete)

Last Update: 12 July 2020; scu-Ref: scu.220325

Dunlop v Higgins: HL 1848

References: (1848) 6 Bell’s App 195, (1848) 1 HLC 381
Ratio: Contracts made by post are complete when and where the letter of acceptance is posted.
Jurisdiction: Scotland
This case is cited by:

(This list may be incomplete)

Last Update: 01 June 2020
Ref: 276450

Regina v Clarence: CCCR 1888

References: (1888) 22 QBD 23, [1886-90] All ER Rep 133
Coram: Stephen J, Baron Pollock, AL Smith J
Ratio: The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed convictions for assault and causing grievous bodily harm.
Held: ‘The question in this case is whether a man who knows that he has gonorrhea, and who by having connection with his wife, who does not know it, infects her, is or is not guilty under s20 . . or under s47 of the same [1861] Act. Section 20 punishes everyone who ‘unlawfully and maliciously inflicts any grievous bodily harm upon any person.’ Section 47 punished everyone who is convicted of an ‘assault occasioning actual bodily harm to any person . .’ Is there an infliction of bodily harm either with or without any weapon or instrument?’ I think there is not for the following reasons.
The words appear to me to mean the direct causing of some grievous injury to the body itself with a weapon, as by a cut with a knife, or without a weapon, as by a blow with the fist, or by pushing a person down. Indeed, though the word ‘assault’ is not used in the section, I think the words imply an assault and battery of which a wound or grievous bodily harm is the manifest immediate and obvious result . . It is further illustrated by reference to 14 and 15 Vict. C19 sect 4, of which the present section is a re-enactment. Section 4 of the earlier Act begins with the preamble, ‘And whereas it is expedient to make further provision for the punishment of aggravated assaults,’ and then proceeds in the words of the present section, with a trifling and unimportant difference in their arrangement.
Infection by the application of an animal poison appears to me to be of a different character from an assault. The administration of poison is dealt with under s24, which would be superfluous if poisoning were an ‘infliction of grievous bodily harm either with or without a weapon or instrument.’ The one act differs from the other in the immediate and necessary connection between a cut or a blow and the wound or harm inflicted, and the uncertain and delayed operation of the act by which infection is communicated. If a man by the grasp of the hand infects another with smallpox, it is impossible to trace out in detail the connection between the act and the disease, and it would, I think, be an unnatural use of language to say that a man by such an act ‘inflicted’ smallpox on another . . .
Is the case, then, within s37, as ‘an assault occasioning actual bodily harm?’ The question here is whether there is an assault. It is said there is none, because the woman consented, and to this it is replied that fraud vitiates consent, and that the prisoner’s silence was a fraud. Apart however from this, is the man’s concealment of the fact that he was infected such a fraud as vitiated the wife’s consent to the exercise of his marital rights, and converted the act of connection into an assault? It seems to me that the proposition that fraud vitiates consent in criminal matters is not true if taken to apply in the fullest sense of the word, and without qualifications. It is too short to be true, as a mathematical formula is true.’ As to the issue of consent to an assault, per Pollock B: ‘The second count charges an assault … I should be inclined to hold that … an assault must in all cases be an act which in itself is illegal and … I cannot assent to the proposition that there is any true analogy between the case of a man who does an act which in the absence of consent amounts to an indecent assault upon his niece, or any woman other than his wife, and the case of a man having connection with his wife. In the one case the act is, taken by itself, in its inception an unlawful act, and it would continue to be unlawful but for the consent. The husband’s connection with his wife is not only lawful, but it is in accordance with the ordinary condition of married life. … The wife as to the connection itself is in a different position from any other woman, for she has no right or power to refuse her consent.’
Stephen J said: ‘If a man laid a trap for another into which he fell after an interval the man who laid it would during the interval be guilty of an attempt to assault and of an actual assault as soon as the man fell in.’
However: ‘It seems to me that the proposition of fraud vitiates consent in criminal matters is not true if taken to apply the fullest sense of the word, and without qualification.’ and ‘Many seductions would be rapes, and so might acts of prostitution procured by fraud, as for instance by promises not intended to be fulfilled.’
. . And: ‘Consent to a surgical operation or examination is not a consent to sexual connection or indecent behaviour. Consent to connection with a husband is not consent to adultery.
I do not think that the maxim that fraud vitiates consent can be carried further than this in criminal matters. It is commonly applied to cases of contract, because in all cases of contract the evidence of a consent not procured by force or fraud is essential, but even in these cases care in the application of the maxim is required, because in some instances suppression of the truth operates as fraud, whereas in others at least a suggestion of falsehood is required. The act of intercourse between a man and woman cannot in any case be regarded as the performance of a contract.’
. . and ‘The woman’s consent here was as full and conscious as consent could be. It was not obtained by any fraud as to the nature of the act or as to the identity of the agent.’
Wills J said: ‘That consent obtained by fraud is no consent at all is not true is a general proposition either in fact or in law. If a man meets a woman in the street and knowingly gives her bad money in order to procure her consent to intercourse with him, he obtains her consent by fraud, but it would be childish to say that she did not consent. In respect of a contract, fraud does not destroy consent. It only makes it revocable.’
Statutes: Offences against the Persons Act 1861 20 46
Jurisdiction: England and Wales
This case cites:

  • Cited – Regina v Taylor ((1869) Law Rep 1 CCR 194)
    It was ‘contrary to common sense’ to describe the infliction of a sexually transmitted disease as an assault. A prisoner could upon an indictment under the section be convicted of a common assault, because each offence (‘wounding’ and ‘infliucting . .

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

  • Considered – Regina v Tabassum CACD (Times 26-May-00, Gazette 31-May-00, [2000] 2 CAR 328, Bailii, [2000] EWCA Crim 90, [2000] 2 Cr App Rep 328, [2000] Crim LR 686, [2000] Lloyds Rep Med 404, [2000] All ER (D) 649)
    The defendant had pretended to be medically qualified in order to obtain the opportunity to examine women’s breasts. He appealed against his conviction for indecent assault, saying that the complainants had consented to the examinations.
    Held: . .
  • Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL (Independent 12-Mar-93, lip, [1994] 1 AC 212, Bailii, [1993] UKHL 19, [1992] UKHL 7, [1993] 2 WLR 556, [1993] 2 All ER 75)
    The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
  • Clarified – Regina v R HL ([1991] 4 All ER 481, [1992] 1 AC 599, Hamlyn, Bailii, [1990] UKHL 9, Bailii, [1991] UKHL 12, Bailii, [1991] UKHL 14, (1992) 94 Cr App R 216, (1991) 155 JPN 752, [1992] 1 FLR 217, [1991] 3 WLR 767, (1991) 155 JP 989, [1992] Crim LR 207, [1992] Fam Law 108)
    The defendant appealed against his conviction for having raped his wife, saying that intercourse with his wife was necessarily lawful, and therefore outside the statutory definition of rape. Due to the matrimonial difficulties, the wife had left . .
  • Overruled – Regina v Dica CACD ([2004] EWCA Crim 1103, Bailii, Times 11-May-04, [2004] QB 1257, [2002] 2 Cr App R 28)
    The defendant appealed against his conviction for inflicting grievous bodily harm. He had HIV/Aids, and was found to have transmitted the disease by intercourse when the victims were not informed of his condition. It was not suggested that any rape . .
  • Cited – Director of Public Prosecutions v Santa-Bermudez Admn (Bailii, [2003] EWHC 2908 (Admin), [2004] Crim LR 471)
    The prosecutor appealed a finding of no case to answer on an accusation of assault occasioning actual bodily harm. The victim, a police officer, was searching the pockets of an arrested person, when she was injured by a hypodermic needle. She had . .
  • Cited – Director of Public Prosecutions v K (a Minor) QBD ([1990] 1 All ER 331, (1990) 91 Cr App R 23)
    The defendant a schoolboy aged 15 had spilled some acid during a chemistry lesson. He went to wash his hands, but took a test tube of acid with him. Hearing others coming and panicking, he poured it into an upturned hot air drier. He returned to . .
  • Cited – Total Network Sl v Revenue and Customs HL (Bailii, [2008] UKHL 19, HL, [2008] BPIR 699, [2008] 2 WLR 711, [2008] STI 938, [2008] 1 AC 1174, [2008] STC 644, [2008] BVC 340, [2008] BTC 5216)
    The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
  • Cited – Regina v Linekar CACD (Gazette 11-Jan-95, Ind Summary 19-Dec-94, Times 26-Oct-94, Bailii, [1994] EWCA Crim 2, [1995] 2 WLR 237, [1995] 2 CAR 49, [1995] 3 All ER 70, [1995] QB 250)
    L appealed against his conviction for rape. His victim was a woman working as a prostitute. He said that he had simply made off afterwards without payment. He was convicted on the basis that he had procured the act by a false pretence by him that he . .
  • Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn (Bailii, [2018] EWHC 3508 (Admin), [2018] WLR(D) 765)
    The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
    Held: Her claim failed. Case . .

(This list may be incomplete)
Leading Case
Last Update: 26 May 2020
Ref: 182069

Forbes v Forbes: 1854

References: (1854) 18 Beav 552, (1854) Kay 341
Ratio: General Forbes died. It became necessary to decide what was his domicile at the date of death. He had been born in Scotland, but then served for 35 years in India, before retirng to live in London.
Held: The domicile in India was a domicile of choice, and it was easier to show a change of domicile of choice than for a domicile of origin. The court declined to make an order with respect to a case of a gift to build a bridge over the River Don in Scotland. This was in effect an issue of Scottish charity law, and the Scottish courts would have jurisdiction.
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Gaudiya Mission and others v Brahmachary and others Sixth CA (Times 24-Sep-97, Bailii, [1997] EWCA Civ 2239)
    The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava . .
  • Cited – Agulian and Another v Cyganik CA (Bailii, [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: . .

(This list may be incomplete)

Last Update: 24 May 2020
Ref: 200670

Diocese of Westminster Academy Trust (Education): ICO 5 Dec 2019

References: [2019] UKICO fs50886633
Links: Bailii
Ratio: The complainant requested information from The Diocese of Westminster Academy Trust (‘the Trust’) about a Freedom of Information request and its response referred in a letter to parents/carers. The Commissioner’s decision is that the Trust has breached section 10(1) of the FOIA in that it failed to provide a valid response to the request within the statutory time frame of 20 working days. The Commissioner requires the Trust to respond to the complainant’s request in accordance with the FOIA.
FOI 10: Complaint upheld
Jurisdiction: England and Wales

Last Update: 10 May 2020
Ref: 650404

Regina v The Imam of Bury Park Jame Masjid Luton and others ex parte Suliman Ali: CA 12 May 1993

References: Times 12-May-1993
Ratio:
Jurisdiction: England and Wales
This case cites:

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

  • Cited – Blake v Associated Newspapers Ltd QBD (Bailii, [2003] EWHC 1960 (QB))
    The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
    Held: The claim could not be heard. . .

(This list may be incomplete)

Last Update: 28 April 2020
Ref: 650097

Phones 4u Ltd v Phone4u.co.uk Internet Ltd: 2005

References: [2005] EWHC 334
Ratio: In 1999 the claimant company was carrying on a business supplying mobile phones under its corporate name Phones 4u. At that stage it was trading on a fairly modest scale. In 1999 a Mr Heykali (the second defendant) decided to go into the mobile phones business and acquired the domain name phone4u.co.uk. The claimant copy eventually brought claims for passing off and trade mark infringement against Mr Heykali and the company which he had by then established. That company was the first defendant.
Held: The claim in passing off failed. On the evidence, when Mr Heykali registered the domain name in 1999, he had never heard of the claimant company or of its business. On that basis he could not be liable in passing off.
Jurisdiction: England and Wales
This case is cited by:

  • Appeal from – Phones4U Ltd and Another v Phone4u.Co.UK and others CA (Bailii, [2006] EWCA Civ 244, Gazette 08-Jun-06, [2007] RPC 5)
    Mobile phone companies brought claims of passing off and trade mark infringement by the defendant who had registered internet domain names in the same year as the claimants first registered their own names. The defendant appealed a finding that at . .
  • Cited – Global Projects Management Ltd v Citigroup Inc and Others ChD (Bailii, [2005] EWHC 2663 (Ch), [2006] FSR 39)
    GPM had acquired an internet domain name ‘citigroup.co.uk’. Citigroup alleged passing off and trade mark infringement. The claimant complained of an unjustified threat. The defendant counterclaimed, and sought summary judgment.
    Held: The . .

(This list may be incomplete)

Last Update: 07 April 2020
Ref: 375136

O’Learly v Douglass: 1878

References: (1878) 1 LR IR 45
Coram: Warren J
Ratio: The testator had executed two wills, identical in all respects save only for the dates and the attesting witnesses.
Held: Warren J said: ‘On these facts it would seem immaterial whether one or both papers should be admitted to probate.’ However there were certain charitable donations contained in the wills which, under the law at the time, would have failed if dependant on the second will but would have been valid if effected by the earlier will. After referring to Birks, he said the Court may draw what light it can from such evidence.’ The function of the Court was ‘to admit to probate all testamentary papers which a testator has duly executed and which he has not revoked’.
Jurisdiction: England and Wales
This case cites:

  • Cited – Birks v Birks ([1865] EngR 362 (B), Commonlii, (1865) 4 Sw and Tr 23)
    Probate was applied for for two testamentary papers. Mistake. Admissibility of Parol Evidence.-Testamentary Papers not inconsistent with each other. The First not revoked by the Last.—A testator, having erased a clause in his Will after the . .

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

  • Cited – Lamothe v Lamothe and Others ChD (Bailii, [2006] EWHC 1387 (Ch))
    The deceased had made a will in England but later made a will in Dominica revoking all other wills. After the first death, probate of the first will was taken out in ignorance of the second. The claimant, still in ignorance of the second will, took . .

(This list may be incomplete)

Last Update: 07 April 2020
Ref: 375066

Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others: Comm 7 Nov 2003

References: [2003] EWHC 2602 (Comm), [2004] 1 All ER (Comm) 481, [2004] 1 Lloyd’s Rep 38
Links: Bailii
Coram: The Honourable Mr Justice Colman
Ratio: One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s right of action against the promisor and because, by reason of the underlying policy of section 1(4), he is confined to the means of enforcement provided by the contract to the promisee, namely arbitration. He is to be treated as standing in the shoes of that promisee for the purpose only of the enforcement of the substantive term. In this case, the scope of the disputes covered by the arbitration agreements was wide enough to embrace a dispute between owners and charterers about payment of the brokers’ commission, and they fell to be resolved by arbitration.
Statutes: Contracts (Rights of Third Parties) Act 1999 1(4), Arbitration Act 1996 67
Jurisdiction: England and Wales
This case cites:

  • Cited – Robertson v Wait ((1853) 8 Ex 299)
    . .
  • Cited – Les Affreteurs Reunis SA v Leopold Walford (London) Ltd HL ([1919] AC 801)
    With regard to Robertson -v- Wait: ‘My Lords, so far as I am aware, that case has not before engaged the attention of this House, and I think it right to say plainly that I agree with that decision and I agree with the reasoning, shortly as it is . .
  • Cited – The Jordan Nicholev ([1990] 2 Lloyds Rep 11)
    The court was asked as to the position resulting from the assignment of a contract including an arbitration clause: ‘Where the assignment is the assignment of the cause of action, it will, in the absence of some agreement to the contrary include as . .
  • Cited – The Padre Island ([1984] 2 Lloyds Rep 408)
    The 1930 Act creates a statutory assignment of any rights of action in a case where the assured has become bankrupt or been wound up, the party to whom the benefit of a right of action under the liability insurance contract has been transferred may . .
  • Cited – T W Thomas and Co Ltd v Portsea Steamship Co Ltd PC ([1912] AC 1)
    The board discussed the approach to the incorporation of arbitration clauses and jurisdiction clauses from one contract into another such as a bill of lading. . .
  • Cited – The Mahkutai PC (Times 24-Apr-96, [1996] AC 650, [1996] 3 WLR 1)
    (Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
  • Cited – Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (‘The Jay Bola’) CA ([1997] 2 Lloyds Rep 279)
    The insurance company claimant had insured a cargo under a voyage charter made by the defendant as charterer with the claimant as time charterer and disponent owner of the vessel. The charter had an arbitration clause. The cargo was damaged in a . .

(This list may be incomplete)

Last Update: 26 March 2020
Ref: 187699

Dominguez v Prefect of the Central Region (Social Policy) French Text: ECJ 8 Sep 2011

References: C-282/10, [2011] EUECJ C-282/10
Links: Bailii
Ratio: ECJ Article 31, paragraph 2, of the Charter – Fundamental social rights – General principles of law – horizontal effect of directives – Article 7 of Directive 2003/88/EC – Working conditions – Working time arrangements – The right to annual leave paid – Birth of entitlement regardless of the nature of the absence of the worker and his life – National legislation making the grant of leave to work a minimum number of ten days – Obligation for the national court to disapply the application of national provisions contrary to EU law
Statutes: Directive 2003/88/EC 7
This case is cited by:

(This list may be incomplete)

Last Update: 23 December 2019
Ref: 444099

Halliday v Nevill: 1984

References: (1984) 155 CLR 1
Coram: Brennan J
Ratio: Brennan J said: ‘A police officer who enters or remains on private property without the leave and licence of the person in possession or entitled to possession commits a trespass and acts outside the course of his duty unless his entering or remaining on the premises is authorized or excused by law.’ and ‘The common law presumes that when Parliament creates a novel power, it does not intend thereby to authorize the commission of a trespass to facilitate its exercise: Morris v Beardmore [1981] A.C. 446; Colet v The Queen (1981) 119 DLR (3d) 521 . The general protection which the common law accords to persons in possession of private property is undiminished by the creation of the novel power unless Parliament expressly provides otherwise.’
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Gillies v Procurator Fiscal, Elgin HCJ (Bailii, [2008] ScotHC HCJAC – 55, 2008 GWD 31-476, 2008 SCCR 887, 2008 SCL 1316, 2008 SLT 978, 2009 JC 25, [2008] HCJAC 55)
    The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The . .

(This list may be incomplete)

Last Update: 02 December 2019
Ref: 276519

Dunne v High Court Dublin: Admnz 9 Jul 2009

References: [2009] EWHC 2003 (Admin)
Links: Bailii
Coram: Leveson LJ, Rafferty J
Ratio:
This case is cited by:

  • Cited – Lukaszewski v The District Court In Torun, Poland SC (Bailii, [2012] UKSC 20, Bailii Summary, UKSC 2011/0177, SC, SC Summary, [2012] 1 WLR 1604, [2012] HRLR 22, [2012] 4 All ER 667, [2012] WLR(D) 158, WLRD)
    Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .

(This list may be incomplete)

Last Update: 18 September 2019
Ref: 372675

Adegbenro v Chief S L Akintola and Sir Adesoji Aderemi (Nigeria): PC 27 May 1963

References: [1963] UKPC 15, [1963] AC 614
Links: Bailii
Ratio:
Jurisdiction: England and Wales
This case is cited by:

(This list may be incomplete)

Last Update: 17 September 2019
Ref: 445253

Midland Bank Plc v Cooke and Another: CA 7 Jul 1995

References: [1995] EWCA Civ 12, [1995] 2 FLR 915, [1996] 1 FCR 442, [1995] 4 All ER 562
Links: Bailii
Coram: Stuart Smith, Waite, Schiemann LJJ
Ratio:
This case is cited by:

  • Cited – Jones v Kernott SC (Bailii, [2011] UKSC 53, SC Summary, UKSC 2010/0130, SC, Bailii Summary, [2011] 46 EG 104, [2011] 3 FCR 495, [2011] Fam Law 1338, [2012] WTLR 125, [2011] NPC 116, [2011] BPIR 1653, [2011] 3 WLR 1121, 14 ITELR 491)
    The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .

(This list may be incomplete)

Last Update: 17 July 2019
Ref: 259354

Bhola v The State: PC 30 Jan 2006

References: [2006] UKPC 10
Links: Bailii
Ratio: Trinidad and Tobago
Jurisdiction: Commonwealth
This case is cited by:

  • Cited – Simmons and Another v Regina PC (Bailii, [2006] UKPC 19)
    (Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
    Held: The defendant would have failed in a submission of no . .

(This list may be incomplete)

Last Update: 18 June 2019
Ref: 238917

Vision Golf Ltd. v Weightmans (A Firm): ChD 26 Jul 2005

References: [2005] EWHC 1675 (Ch)
Links: Bailii
Coram: Lewison J
Ratio: A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but for’ test set out in the Kuwait Airlines case was passed. ‘But for’ the negligence relief would have been obtained. The law has abandoned the theory that a claimant’s impecuniosity absolves a tortfeasor from liability. As to damages, the value of the lease would include a sum in respect of loss of profits.
This case cites:

  • Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL (House of Lords, Times 21-May-02, Bailii, [2002] 2 WLR 1353, [2002] 2 AC 883, [2002] UKHL 19)
    After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
    Held: The appeal failed. No claim . .
  • Cited – Hopkins v Mackenzie CA (Times 03-Nov-94, Independent 27-Oct-94, Gazette 07-Dec-94, [1995] PIQR 43)
    A loss arising from a solicitor’s failure to pursue a case arose only when the claim was struck out, not earlier when compromised, and even though value already diminished. Accordingly the limitation period began to run from that time. . .
  • Cited – Khan v R M Falvey and Co (a Firm) CA (Times 12-Apr-02, Bailii, Gazette 10-May-02, [2002] EWCA Civ 400, [2002] Lloyd’s Rep PN 369, [2002] PNLR 28)
    The claimant sought damages from his former solicitors for failing to act to avoid his case being struck out. The second action was itself delayed, and the defendants asserted that the cause of action occurred not when his claim was actually struck . .
  • Cited – Billson and Others v Residential Tenancies Ltd CA ([1992] 1 All ER 141)
    As to the exercise of relief in equity outside the limitation period: ‘This is not to say that courts of equity should now grant relief without any regard to the statutory provisions. Equity follows the law, but not slavishly nor always: see Cardozo . .
  • Cited – Lagden v O’Connor HL (House of Lords, [2003] UKHL 64, Bailii, Times 05-Dec-03, [2004] 1 AC 1067, [2004] 1 All ER 277, [2003] 3 WLR 1571, [2004] Lloyd’s Rep IR 315, [2004] RTR 24)
    The parties had been involved in a road traffic accident. The defendant drove into the claimant’s parked car. The claimant was unable to afford to hire a car pending repairs being completed, and arranged to hire a car on credit. He now sought . .
  • Cited – Billson and Others v Residential Tenancies Ltd HL (Gazette 22-Jan-92, [1992] 1 AC 494, [1992] 2 WLR 15, Bailii, [1991] UKHL 7, [1991] 3 WLR 264)
    Relief from forfeiture was available against a landlord who had peaceably re-entered property subject to a tenancy without a court order. Such a landlord was still ‘proceeding’ to enforce his rights of forfeiture until he obtained a judgment for . .
  • Cited – Lovelock v Margo ([1963] 2 All ER 13, [1963] 2 QB 786)
    The tenant wished to assign the lease. The lease contained the ‘usual covenant’ not to assign without consent, that consent not to be unreasonably withheld. The landlord had refused a request from the tenant to assign the lease because she was ‘not . .
  • Cited – Thatcher v CH Pearce and Sons (Contractors) Ltd ([1968] 1 WLR 748)
    (Bristol Assizes) The tenant was the tenant of a scrap yard. He had paid his rent promptly, until he was sent to prison. Thereafter he failed to pay the rent; and had no access to legal advice. The landlord peaceably re-entered for non-payment of . .
  • Cited – Crehan v Inntrepreneur Pub Company (CPC) CA (Bailii, [2004] EWCA Civ 637, Times 28-May-04, [2004] 3 EGLR 128, [2004] EuLR 693)
    The claimant had taken two leases, but had been made subject to beer ties with the defendant. He claimed damages for the losses, saying he had been forced to pay higher prices than those allowed to non-tied houses, and that the agreement was . .

(This list may be incomplete)

Last Update: 06 June 2019
Ref: 234731

Ping Europe Ltd v Competition and Markets Authority: CAT 9 Mar 2018

References: [2018] CAT 7
Links: Bailii
Ratio:
Jurisdiction: England and Wales
This case is cited by:

(This list may be incomplete)

Last Update: 15 May 2019
Ref: 636186

Ping Europe Ltd v Competition and Markets Authority: CAT 26 Mar 2018

References: [2018] CAT 8
Links: Bailii
Ratio:
Jurisdiction: England and Wales
This case cites:

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

(This list may be incomplete)

Last Update: 02 May 2019
Ref: 636187

St Marylebone Property Co Ltd v Fairweather: HL 1963

References: [1963] AC 510, [1962] UKHL 1, [1962] 2 WLR 1020, [1962] 2 All ER 288
Links: Bailii
Coram: Lord Radcliffe, Lord Denning
Ratio: To defeat a defence of adverse possession, the plaintiff must succeed in an action which itself had been commenced within the twelve year period. A squatter does not succeed to the title that he has disturbed: by sufficiently long adverse possession he obtains a title of his own, but ‘his possession only defeats the rights of those to whom it has been adverse’. Therefore, said Lord Radcliffe: ‘the effect of the ‘extinguishment’ sections of the Limitation Acts is not to destroy the lessee’s estate as between himself and the lessor; and that it would be incorrect to say that if he offers a surrender to the lessor he has nothing to surrender to him in respect of the land in the possession of the squatter. What the lessee surrendered in this case was the incumbrance on the fee simple in possession which was represented by the term of years . . Now if the landlord then goes to the lessee and gets him to surrender the outstanding term, which incumbers his fee simple in possession, then the squatter’s defence against the landlord disappears and, since he has not completed adverse possession against the landlord, he must give way to the rightful owner’s claim to the land.’
Lord Denning said: ‘the title of the leaseholder is extinguished as against the squatter, but remains good as against the freeholder.’ and ‘The only reason, it seems to me, which can be urged against this conclusion is that it means that a squatter’s title can be destroyed by the leaseholder and freeholder putting their heads together. It is said that they can by a surrender – or by a surrender and regrant – destroy the squatter’s title completely and get rid of him. So be it. There is no way of preventing it.’
Statutes: Land Registration Act 1925 75(1)
Jurisdiction: England and Wales
This case cites:

  • Wrongly decided – Walter v Yalden QBD ([1902] 2 KB 304)
    The surrender of a lease by a lessee whose right and title to possession had been extinguished by effluxion of time gave the leaseholder no right of re-entry during the remainder of the term. . .

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

  • Distinguished – Chung Ping Kwan and others v Lam Island Development Company Limited PC (Times 16-Jul-96, Bailii, [1996] UKPC 23)
    (Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later . .
  • Cited – Markfield Investments Ltd v Evans CA (Bailii, [2000] EWCA Civ 281, [2001] 1 WLR 1321)
    The claimants were paper owners of land occupied by the defendant. The claimant said the acquiescence had been interrupted by an abortive court action by the claimant’s predecessor in title.
    Held: With regard to any particular action the . .
  • Cited – Roberts v Swangrove Estates Ltd and Another ChD (Bailii, [2007] EWHC 513 (Ch), [2008] 2 WLR 1111, [2007] 2 PandCR 17)
    The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
    Held: A person may acquire title to part of the bed of a tidal river by . .
  • Cited – Smith, Regina (on The Application of) v Land Registry (Peterborough Office) and Another CA (Bailii, [2010] EWCA Civ 200, [2010] NPC 31, [2010] 11 EG 121, [2010] 3 All ER 113, [2010] 21 EG 92, [2010] 3 WLR 1223, [2011] 1 QB 413)
    The appellant had lived in a caravan on the verge of a byway and had been here for more than twelve years. He appealed against rejection of his request for possessory title. He said that there was no support in law for the maxim that adverse . .

(This list may be incomplete)

Last Update: 06 April 2019
Ref: 191153

Marine Contractors Limited v Barnes: IPO 25 Apr 2002

References: O/179/02, Gb 0025707 1, [2002] UKIntelP o17902
Links: PO, PO, Bailii
Coram: Mr R Kennell
Ratio: cw Inter Partes Decisions – Patents – The reference under section 8(1) concerning entitlement to the application was treated as unopposed following the failure of the applicant for the patent to provide a counter-statement. The application was due to be, but had not actually been, treated as withdrawn for failure to file an abstract and a request for preliminary examination and search. The hearing officer made a declaration of entitlement in favour of the claimants and gave them an opportunity, within 6 weeks, to request discretion under rules 110(1) and 110(4) respectively to allow late filing of the missing items, failing which the application would be treated as withdrawn.
Statutes: Patents Act 1977 8(1), Patents Rules 1995 110
Jurisdiction: England and Wales

Last Update: 03 April 2019
Ref: 177148

Gaudiya Mission and others v Brahmachary and others Sixth: CA 30 Jul 1997

References: Times 24-Sep-1997, [1997] EWCA Civ 2239
Links: Bailii
Coram: Lord Justice Leggatt Lord Justice Morritt Lord Justice Mummery
Ratio: The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava religion in London.
Held: Charities Act jurisdiction is restricted to charities registered in the UK, with no control over charities established and administered abroad. The Mission was not a charity within the meaning of the 1993 Act.
Statutes: Charities Act 1993 33 96(1)
This case cites:

  • Appeal from – Gaudiya Mission and Others v Kamalaksha Das Brahmachary ChD (Times 01-Apr-97)
    There was a dispute as to the management and ownership of the London Temple of the plaintiff, a Vaishnava religious sect in India.
    Held: The proceedings were charity proceedings within section 33(8), because they are proceedings brought under . .
  • Cited – Mayor of Lyon v East India Co ((1836) 1 Moore’s PC 175)
    Lord Brougham said: ‘The objection, in the ordinary case, to administering a foreign charity under the superintendence of the Court, is this: those who are engaged in the actual execution of it, are beyond the Court’s control, and those who are . .
  • Cited – Clark (Inspector of Taxes) v Oceanic Contractors Inc HL ([1983] 2 AC 130, Bailii, [1982] UKHL TC – 56 – 183)
    HL Income tax, Schedule E – Non-resident employer – Employees working in U.K. sector of North Sea – Whether employer liable to deduct tax from emoluments – Income Tax (Employments) Regulations 1973 – Income and . .
  • Distinguished – Construction Industry Training Board v Attorney-General CA ([1973] Ch 173)
    Buckley LJ considered the authorities for permitting a charity to act outside its original charitable aims: ‘It has long been recognised that, where a charity is established by an Act of Parliament, the court will not exercise its jurisdiction in . .
  • Cited – Provost of Edinburgh v Aubery ((1754) Amb 236)
    The English court declined the jurisdiction for the distribution of a fund of andpound;3,500 bequeathed by the testator to the Provost of Edinburgh to be applied for the maintenance of poor labourers residing in Edinburgh and towns adjacent. He said . .
  • Cited – Re Marr’s Will Trusts ([1936] Ch 671)
    . .
  • Cited – Attorney-General v Lepine ((1818) 2 Swanst 181)
    The testator left part of his residuary estate for the benefit of a school for the poor in the parish of Dollar in Scotland.
    Held: The English court declined jurisdiction. ‘I have always understood that, where a charity is to be administered . .
  • Cited – In Re Robinson ([1931] 2 Ch 122)
    The claim concerned a gift which had been made to the German government for the benefit of disabled German soldiers.
    Held: The English court had no jurisdiction: ‘if the trustee is abroad there is no power in the Court to direct a scheme to be . .
  • Cited – Emery v Hill ((1826) 1 Russ 112)
    The Court was asked to make an order with respect to a bequest to the treasurer of a society established in Scotland for the propagation of Christian knowledge.
    Held: The English court had no jurisdiction over a Scottish charity. . .
  • Cited – Forbes v Forbes ((1854) 18 Beav 552, (1854) Kay 341)
    General Forbes died. It became necessary to decide what was his domicile at the date of death. He had been born in Scotland, but then served for 35 years in India, before retirng to live in London.
    Held: The domicile in India was a domicile of . .
  • Cited – Attorney-General v Sturge ((1854) 19 Beav 597)
    The testatrix had left funds to support a school in Genoa.
    Held: The courts have no authority to make a scheme where the trustees would not be within the jurisdiction of the English courts. . .
  • Cited – Re Colonial Bishoprics Fund 1841 ([1935] Ch 148)
    The court was asked to make a order with respect to the Fund, a trust established in England for the endowment of Bishoprics in the Colonies.
    Held: The court had jurisdiction to make a cy-pres order. Since the trustees of the fund were in this . .
  • Cited – Attorney-General v City of London ((1790) Bro CC 171)
    A trust had been established in England for the advancement of Christianity among ‘infidels in America’. Acting on information that after the American War of Independence, there were no longer any infidels within the areas designated, and that the . .
  • Cited – Camille and Henry Dreyfus Foundation Inc v Inland Revenue Commissioners HL ([1956] AC 39, [1955] 3 All ER 97, 36 TC 126, Bailii, [1955] UKHL TC – 36 – 126)
    The company was a foreign corporation constituted according to the laws of the state of New York for objects which were exclusively charitable according to the law of the United Kingdom.
    Held: The term ‘charity’ does not include an institution . .
  • Cited – Camille and Henry Dreyfus Foundation Inc v Inland Revenue Commissioners CA ([1954] 1 Ch 672)
    The Court considered whether it had jurisdiction to make an order with respect to a company registered in New York for objects which were charitable according to the laws of England.
    Held: The Revenue’s appeal against a finding that the . .
  • Doubted – Re Duncan CA ((1867) 2 LR Ch App 356)
    The court was asked whether the consent of the Charity Commissioners was necessary to petition the Court to appoint a new trustee of a charity established in England to promote Christian education in Jamaica.
    Held: In the 1853 Act, ‘Charity’ . .

(This list may be incomplete)

Last Update: 24 March 2019
Ref: 142636

Burris v Azadami: CA 9 Aug 1995

References: Times 09-Aug-1995, [1995] 1WLR 1373
Coram: Sir Thomas Bingham MR
Ratio: The court addressed the principles upon which a Court will grant interlocutory injunctive relief in harassment cases.
Held: Both the High Court and the County Court had jurisdiction under the 1981 and 1984 Acts to grant interlocutory injunctions in wide terms to restrain conduct that was not in itself tortuous or otherwise unlawful, if such order was reasonably to be regarded as necessary for the protection of a plaintiff’s legitimate interest. The court has power to impose an exclusion zone when granting a non-molestation injunction restraining harassment of the victim by the defendant, provided no unnecessary restraint was placed on the defendant. It would not seem to me to be a valid objection to the making of an exclusion zone order that the conduct to be restrained is not in itself tortuous or otherwise unlawful, if such an order is reasonably regarded as necessary for the protection of a plaintiff’s legitimate interest’ and ‘Neither the statute nor authority in my view precludes the making of an ‘exclusion zone’ order. But that does not mean that such orders should be made at all readily, or without very good reason. There are two interests to be reconciled. One is that of the defendant. His liberty must be respected up to the point at which his conduct infringes, or threatens to infringe, the rights of the plaintiff. No restraint should be placed on him which is not judged to be necessary to protect the rights of the plaintiff. But the plaintiff has an interest which the court must be astute to protect. The rule of law requires that those whose rights are infringed should seek the aid of the court, and respect for the legal process can only suffer if those who need protection fail to get it. That, in part at least, is why disobedience to orders of the court has always earned severe punishment. Respect for the freedom of the aggressor should never lead the court to deny necessary protection to the victim.’
Statutes: Supreme Court Act 1981 37(1), County Courts Act 1984 38
This case is cited by:

  • Cited – Hall and others v Save Newchurch Guinea Pigs (Campaign) and others QBD (Bailii, [2005] EWHC 372 (QB), Times 07-Apr-05)
    The claimants ran a guinea pig farm. They and their neighbours applied for injunctions and an exclusion zone to keep away the defendants who campaigned against the breeding of animals for research.
    Held: The claimants had been subjected to a . .

(This list may be incomplete)

Last Update: 19 March 2019
Ref: 78757

Le Lievre v Gould: CA 1893

References: [1893] 1 QB 491, (1893) 9 The Times LR 243, 62 LJQB 353, 68 LT 626, 57 JP 484
Coram: Lord Esher MR, AL Smith LJ, Bowen LJ
Ratio: Mortgagees of the interest of a builder under a building agreement, advanced money to him from time to time, relying upon certificates given by a surveyor as to stages reached. The surveyor was not appointed by the mortgagees, and there was no contract between them. The surveyor was negligent, and his certificates contained untrue statements as to progress, but there was no fraud on his part.
Held: The surveyor owed no duty to the mortgagees to exercise care in giving his certificates, and they could not maintain an action against him by reason of his negligence.
Lord Esher MR said: ‘But can the plaintiffs rely upon negligence in the absence of fraud? The question of liability for negligence cannot arise at all until it is established that the man who has been negligent owed some duty to the person who seeks to make him liable for his negligence. What duty is there when there is no relation between the parties by contract? A man is entitled to be as negligent as he pleases towards the whole world if he owes no duty to them. The case of Heaven v. Pender has no bearing upon the present question. That case established that, under certain circumstances, one man may owe a duty to another even though there is no contract between them. If one man is near to another, or is near to the property of another, a duty lies upon him not to do that which may cause a personal injury to that other, or may injure his property.’
Bowen LJ said: ‘the law . . does not consider that what a man writes on paper is like a gun or other dangerous instrument’ and also refered to the principle: ‘that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other.’
Smith LJ said: ‘The decision of Heaven -v- Pender was founded upon the principle, that a duty to take due care did arise when the person or property of one was in such proximity to the person or property of another that, if due care was not taken, damage might be done by the one to the other. Heaven v. Pender goes no further than this, though it is often cited to support all kinds of untenable propositions.’
This case cites:

  • Distinguished – Heaven v Pender, Trading As West India Graving Dock Company CA ((1883) 11 QBD 503, 52 LJQB 702, 49 LT 357, 47 JP 709)
    The plaintiff was a painter. His employer engaged to repaint a ship, and the defendant erected staging to support the work. The staging collapsed because one of the ropes was singed and weakened, injuring the plaintiff.
    Held: The defendant had . .

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

  • Cited – Mutual Life And Citizens’ Assurance Co Ltd And Another v Evatt PC (lip, [1971] 2 WLR 23)
    The plaintiff had been an investor with the defendant. He asked them about an associated company. He was given advice which was incorrect. He claimed damages for negligence.
    Held: The company was not itself in the business of giving such . .
  • Cited – Donoghue (or M’Alister) v Stevenson HL ([1932] AC 562, [1932] SC (HL) 31, [1932] ScLT 317, Hamlyn, [1932] All ER Rep 1, (1932) 101 LJPC 119, (1932) 147 LT 281, [1932] SLT 317, (1932) 48 TLR 494, (1932) 37 Com Cas 350, Bailii, [1932] UKHL 100, [1932] Sol Jo 396, [1932] WN 139, [1932] SC 31, (1933) 4 DLR 337, 533 CA 47)
    The appellant drank from a bottle of ginger beer manufactured by the defendant. She suffered injury when she found a half decomposed snail in the liquid. The glass was opaque and the snail could not be seen. The drink had been bought for her by a . .
  • Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL ([1964] AC 465, [1963] 2 All ER 575, UBC, Bailii, [1963] UKHL 4, [1963] 1 Lloyds Rep 485, [1963] 3 WLR 101, Bailii)
    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 – Candler v Crane Christmas and Co CA ([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 – Sutradhar v Natural Environment Research Council HL (Bailii, [2006] UKHL 33, Times 07-Jul-06, [2006] 4 All ER 490)
    The claimant sought damages after suffering injury after the creation of water supplies which were polluted with arsenic. He said that a report had identified the risks. The defendant said that the report was preliminary only and could not found a . .
  • Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD (lip, [1991] 2 WLR 814, [1991] CLY 2671)
    Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
  • Cited – Manners v Whitehead SCS ((1898) 1 F 171, 36 Sc LR 94, 6 SLT 190)
    (Inner House) An innocent misrepresentation does not give rise to damages. To be actionable it must be made fraudulently, but a person to whom a fraudulent representation of the profitability of a business, or a business opportunity, had been made . .
  • Cited – Cramaso Llp v Ogilvie-Grant, Earl of Seafield and Others SC (Bailii, [2014] UKSC 9, 2014 SLT 521, [2014] 2 All ER 270, [2014] WLR(D) 64, [2014] 2 WLR 317, WLRD, UKSC 2012/0025, SC Summary, SC)
    The defenders owned a substantial grouse moor in Scotland. There had been difficulties with grouse stocks, and steps taken over years to allow stocks to recover. They had responded to enquiries from one Mr Erskine with misleading figures. Mr Erskine . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 181006

Kemsley v Foot: CA 1951

kemsley_footCA51
References: [1951] 2 KB 34
Coram: Birkett LJ, Somervell LJ
Ratio: The plaintiff complained that the defendant had defamed him with a headline to an article ‘Lower than Hemsley’ which otherwise had no connection with the plaintiff. He said it suggested that he was a byword for poor journalism.
Held: Criticism of a newspaper owner as to the presentation of news by the paper was to be treated on a par with criticism of a book or play. The critic is not prevented from relying upon fair comment as a defence only because he does not particularise the conduct of which he complains. He need only state plainly the subject-matter of the complaint.
Birkett LJ said: ‘It is clear, therefore, and indeed it was not contended otherwise, that ALL the facts need not be stated, but when the matter is submitted to the judgment of a jury particulars of the facts relied on must be supplied’
and ‘I do not think it is possible to lay down any rule of universal application. If, for example, a defamatory statement is made about a private individual who is quite unknown to the general public, and he has never taken any part in public affairs, and the statement takes the form of comment only and is capable of being construed as comment and no facts of any kind are given, while it is conceivable that the comment may be made on a matter of public interest, nevertheless the defence of fair comment might not be open to a defendant in that case. It is almost certain that a naked comment of that kind in those circumstances would be decided to be a question of fact and could be justified as such if that defence were pleaded. But if the matter is before the public, as in the case of a book, a play, a film, or a newspaper, then I think different considerations apply. Comment may then be made without setting out the facts on which the comment is based if the subject-matter of the comment is plainly stated. This seems to me to accord with good sense and the true public interest.’
Somervell LJ identified two cases where a publisher may not be obliged to set out the factual basis of his comment in detail: where the subject matter was a work of art placed before the public for comment, and where the subject was a public figure subject in any event to vigorous discussion and where a detailed recital of the facts would be unwelcome. In contradistinction: ‘At the other end of the scale one may imagine a comment reflecting on the integrity of a subordinate official, whose activities had so far received no publicity, where it might be held that the defence was not available unless the facts relied on were substantially set out or indicated.’
This case cites:

  • Approved – Carr v Hood QBD ([1808] 1 Camp 354)
    Lord Ellenborough said: ‘it is not libellous to ridicule a literary composition, or the author of it, in so far as he has embodied himself with his work.
    Every man who publishes a book commits himself to the judgment of the public, and anyone . .

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

  • Appeal from – Kemsley v Foot HL ([1952] AC 345)
    The plaintiff alleged that the headline to an article written by the defendant which criticised the behaviour of the Beaverbrook Press, and which read ‘Lower than Hemsley’ was defamatory. The defendant pleaded fair comment.
    Held: The article . .
  • Cited – Lowe v Associated Newspapers Ltd QBD ([2006] 3 All ER 357, Bailii, [2006] EWHC 320 (QB), Times 29-Mar-06, [2007] QB 580)
    The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
    Held: To claim facts in aid of a defence of fair . .
  • Cited – Associated Newspapers Ltd v Burstein CA (Bailii, [2007] EWCA Civ 600, [2007] EMLR 21, [2007] EMLR 571, [2007] 4 All ER 319, [2001] 1 WLR 579)
    The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
    Held: The appeal succeeded. Keene LJ . .
  • Cited – Thornton v Telegraph Media Group Ltd QBD (Bailii, [2009] EWHC 2863 (QB))
    The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
  • Cited – Spiller and Another v Joseph and Others SC (Bailii, [2010] UKSC 53, UKSC 2009/0210, SC Summary, SC, [2010] WLR (D) 310, WLRD, [2010] 3 WLR 1791, Bailii Summary, [2011] 1 All ER 947, [2011] ICR 1, [2011] EMLR 11)
    The defendants had published remarks on its website about the reliability of the claimant. When sued in defamation, they pleaded fair comment, but that was rejected by the Court of Appeal.
    Held: The defendants’ appeal succeeded, and the fair . .
  • Cited – Cook v Telegraph Media Group Ltd QBD (Bailii, [2011] EWHC 763 (QB))
    The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .

(This list may be incomplete)
Leading Case
Last Update: 18 March 2019
Ref: 240314

Re Cutliffe’s Estate: CA 1959

References: [1959] P 6
Coram: Morris LJ, Hodson LJ
Ratio: In attacking the will, the unsuccessful defendants had pleaded undue influence as well as lack of due execution and want of knowledge and approval, but their evidence had been disbelieved. They complained that in awarding costs against them the court had not applied Spiers v English.
Held: The testator himself had not been responsible for the litigation. Morris LJ said: ‘Costs are always in the discretion of the court; but, without restricting or in any way making rigid the exercise of that discretion, the courts have given general guidance which will enable those embarking on litigation to know how, in particular cases, the discretion is likely to be exercised.’
This case cites:

  • Cited – Spiers v English ([1907] P 122)
    The two main principles which should guide the court in determining that costs in an appropriate suit are not to follow the event are firstly where the testator or those interested in the residue had been the cause of the litigation and secondly, if . .
  • Cited – Mitchell v Gard ((1863) 3 Sw and Tr 275)
    The next of kin of the deceased, who had unsuccessfully opposed the will in a testamentary suit tried before Byles J and a jury, applied for their costs to be paid out of the estate.
    Held: Sir James Wilde said: ‘The basis of all rule on this . .

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

  • Cited – Francis Hoff and others v Mary Atherton ChD ([2004] EWHC 2007 (Ch))
    A challenge to testamentary capacity falls within the second exception in Spiers v English and not the first. . .
  • Cited – Kostic v Chaplin and others ChD (Bailii, [2007] EWHC 2909 (Ch), Times 11-Jan-08)
    The claimant had brought contentious probate proceedings, and succeeded in establishing that the deceased had not had capacity to make the will. The defendant beneficiaries appealed an order for costs.
    Held: The costs of the trial itself . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 263527

Legal and General Assurance Society Ltd v Drake Insurance Co Ltd: CA 15 Jan 1992

References: Gazette 15-Jan-1992, [1992] QB 887, [1992] 2 WLR 157
Coram: Lloyd LJ
Ratio: An insurance company, having paid under the policy to a doubly insured party, sought contribution from the second insurer, who had not been notified of the claim by the insured. The claim for a contribution was one in equity, but since the company had paid in excess of their true liability, because of a ‘ratable proportion’ clause, they were not entitled to recover any part of the voluntary payment. The matter should be looked at at the time of the loss before there was any non-compliance with the condition precedent.
Lloyd LJ said: l ‘the principles on which one insurer is entitled to recover from another in a case of double insurance have been settled since Lord Mansfield’s day’.
This case is cited by:

  • Not Followed – Eagle Star Insurance Co Ltd v Provincial Insurance Plc PC (Times 09-Jun-93, [1994] 1 AC 130, Bailii, [1993] UKPC 22)
    Two insurance companies were liable to contribute equally to an amount payable to a third party. The doctrine of contribution could be modified by contract and the matter should be considered by reference to the parties’ contractual liabilities. . .
  • Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA (Bailii, [2006] EWCA Civ 50, Times 09-Feb-06, [2006] 1 WLR 1492, [2007] Lloyd’s Rep IR 173)
    The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
  • Cited – The National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd ComC (Bailii, [2010] EWHC 773 (Comm), [2010] 1 CLC 557)
    Gavin Kealey QC DHCJ set out the concept of double insurance: ‘Double insurance arises where the same party is insured with two (or more) insurers in respect of the same interest on the same subject-matter against the same risks. If a loss by a . .
  • Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC (Bailii, [2015] UKSC 33, [2015] Lloyd’s Rep IR 598, [2015] WLR(D) 233, [2015] 2 WLR 1471, [2016] AC 509, Bailii Summary, WLRD, UKSC 2013/0057, SC, SC Summary, SC Summary Video)
    A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .

(This list may be incomplete)

Last Update: 18 March 2019
Ref: 83017

Kelly v Solari: CexC 1841

References: (1841) 9 M and W 54
Coram: Parke B, Lord Abinger CB, Gurney B, Rolfe B
Ratio: Recovery was sought of money (andpound;200) paid an error of fact. There had been a life policy, but it had lapsed before the death of the life assured. The policy had been marked ‘lapsed’ but the marking had been overlooked.
Held: Where money is paid to another under the influence of a mistake in circumstances where if the true facts had been known the money would not have been paid, an action lies to recover the money and it is against the conscience of the recipient to retain it. Parke B said of Bilbie v Lumley that ‘All that that case decides is, that money paid with full knowledge of all the facts cannot be recovered back by reason of its having been paid in ignorance of the law’
A payment made in the knowledge that there was a ground to contest liability will be irrecoverable (Lord Abinger CB).
Lord Abinger CB accepted that Baron CB had put the matter too broadly at trial by using the expression ‘means of knowledge’. This was a very vague expression, and: ‘The safest rule however is, that if the party makes the payment with full knowledge of the facts, although under ignorance of the law, there being no fraud on the other side, he cannot recover it back again. There may also be cases in which, although he might by investigation learn the state of facts more accurately, he declines to do so, and chooses to pay the money notwithstanding; in that case there can be no doubt that he is equally bound. Then there is a third case, and the most difficult one, – where the party had once a full knowledge of the facts, but has since forgotten them. I certainly laid down the rule too widely to the jury, when I told them that if the directors once knew the facts they must be taken still to know them, and could not recover by saying that they had since forgotten them. I think the knowledge of the facts which disentitles the party from recovering, must mean a knowledge existing in the mind at the time of payment.’
Parke B agreed and said: ‘If, indeed, the money is intentionally paid, without reference to the truth or falsehood of the fact, the plaintiff meaning to waive all inquiry into it, and that the person receiving shall have the money at all events, whether the fact be true or false, the latter is certainly entitled to retain it; but if it is paid under the impression of the truth of a fact which is untrue, it may, generally speaking, be recovered back, however careless the party paying may have been, in omitting to use due diligence to inquire into the fact. In such a case the receiver was not entitled to it, nor intended to have it.’
Rolfe B mentioned two interpretations of the facts available to the jury: ‘first, that the jury may possibly find that the directors had not in truth forgotten the fact; and secondly, they may also come to the conclusion, that they had determined that they would not expose the office to unpopularity, and would therefore pay the money at all events.’
Jurisdiction: England and Wales
This case cites:

  • Cited – Bilbie v Lumley and Others ((1802) 2 East 469, Commonlii, [1802] EngR 245, (1802) 102 ER 448)
    An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
    Held: A contract . .

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

  • Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL (Gazette 18-Nov-98, Gazette 10-Feb-99, Times 30-Oct-98, House of Lords, Bailii, [1998] UKHL 38, [1999] 2 AC 349, [1998] 4 All ER 513, [1998] 3 WLR 1095, [1998] Lloyds Rep Bank 387)
    Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap agreements were . .
  • Cited – Fisher v Brooker and Another ChD (Bailii, [2006] EWHC 3239 (Ch))
    The claimant said that he had contributed to the copyright in the song ‘A Whiter Shade of Pale’ but had been denied royalties. He had played the organ and particularly the organ solo which had contrbuted significantly to the fame of the record.

(This list may be incomplete)
Leading Case
Last Update: 18 March 2019
Ref: 236536

Thomson v Kvaerner Govan Limited: SCS 10 May 2002

Links: ScotC
Coram: Lord Abernethy and Lord Morison and Lord President
Ratio:
This case is cited by:

  • Appeal from – Thomson v Kvaerner Govan Limited HL (Bailii, [2003] UKHL 45, House of Lords, 2003 SCLR 765, 2004 SLT 24, [2004] PIQR P7, 2004 SC (HL) 1)
    The defendant appealed reversal on appeal of the award of damages aganst them. The pursuer had been working within the hull of a ship, and the plank on which he was standing had snapped, causing him to fall. The plank should have been of sufficient . .

(This list may be incomplete)

Last Update: 17 March 2019
Ref: 170331

Agricultural, Horticultural and Forestry Industry Training Board v Aylesbury Mushrooms: 1972

References: [1972] 1 All ER 280
Coram: Donaldson J
Ratio: The Secretary of State proposed to introduce new regulations for the training of agricultural workers. It sent a notice inviting representations from a body representing the mushroom growing industry, but the letter was not received. The regulation was made, and the respondent now argued that it was not bound by the regulations because the industry had not been consulted as required.
Held: Consultation requires more than the mere giving of notice, or as in this case the sending of a letter: ‘the essence of consultation is the communication of a genuine invitation, extended with a receptive mind, to give advice’. Having decided that the industry representative should be consulted, the Secretary could not go ahead without doing so. The regulations were not binding on the defendant.
Jurisdiction: England and Wales

Last Update: 17 March 2019
Ref: 188776

Regina v Coney: QBD 1882

r_coneyQBD1882
References: (1882) 8 QBD 534
Coram: Cave J, Stephen J, Hawkins J, Lord Coleridge CJ, Lopes J, Huddleston B
Ratio: A public prize-fight was unlawful. Spectators were tried at Berkshire County Quarter Sessions with common assault. The Chairman of Quarter Sessions directed the jury to convict the spectators of common assault on the basis that having stayed to watch the fight, they encouraged it by their presence.
Held: Each protagonist was guilty of assaulting the other and a number of bystanders were held to have encouraged, and thus to have been guilty of aiding and abetting, the assaults of both. However, mere voluntary presence at a fight did not as a matter of law necessarily render those present guilty of assault. The court was not saying that the jury could not have convicted the spectators on the basis merely of their presence. The objection of the majority was that the case had been withdrawn from the consideration of the jury.
Cave J said: ‘The true view is, I think, that a blow struck in anger, or which is likely or is intended to do corporal hurt, is an assault, but that a blow struck in sport, and not likely, nor intended to cause bodily harm, is not an assault, and that an assault being a breach of the peace and unlawful, the consent of the person struck is immaterial.’
Hawkins J said: ‘The cases in which it has been held that persons may lawfully engage in friendly encounters not calculated to produce real injury to or to rouse angry passions in either, do not in the least militate against the view I have expressed; for such encounters are neither breaches of the peace nor are they calculated to be productive thereof, but if, under colour of a friendly encounter, the parties enter upon it with, or in the course of it form, the intention to conquer each other by violence calculated to produce mischief, regardless whether hurt may be occasioned or not, as, for instance, if two men, pretending to engage in an amicable spar with gloves, really have for their object the intention to beat each other until one of them be exhausted and subdued by force, and so engage in a conflict likely to end in a breach of the peace, each is liable to be prosecuted for assault.’ and
‘whatever may be the effect of a consent in a suit between party and party, it is not in the power of any man to give an effectual consent to that which amounts to, or has a direct tendency to create, a breach of the peace; so as to bar a criminal prosecution. In other words, though a man may by consent debar himself from his right to maintain a civil action, he cannot thereby defeat proceedings instituted by the Crown in the interests of the public for the maintenance of good order; . . . He may compromise his own civil rights, but he cannot compromise the public interests.’
Lord Coleridge CJ: ‘I conceive it to be established, beyond the power of any argument however ingenious to raise a doubt, that as the combatants in a duel cannot give consent to one another to take away life, so neither can the combatants in a prize-fight give consent to one another to commit that which the law has repeatedly held to be a breach of the peace. An individual cannot by such consent destroy the right of the Crown to protect the public and keep the peace.’
Stephen J said: ‘The principle as to consent seems to me to be this: When one person is indicted for inflicting personal injury upon another, the consent of the person who sustains the injury is no defence to the person who inflicts the injury, if the injury is of such a nature, or is inflicted under such circumstances, that its infliction is injurious to the public as well as to the person injured. But the injuries given and received in prize-fights are injurious to the public, both because it is against the public interest that the lives and the health of the combatants should be endangered by blows, and because prize-fights are disorderly exhibitions, mischievous on many obvious grounds. Therefore the consent of the parties to the blows which they mutually receive does not prevent those blows from being assaults.
In cases where life and limb are exposed to no serious danger in the common course of things, I think that consent is a defence to a charge of assault, even when considerable force is used, as, for instance, in cases of wrestling, single-stick, sparring with gloves, football, and the like; but in all cases the question whether consent does or does not take from the application of force to another its illegal character, is a question of degree depending upon circumstances.’
Lopes J said: ‘I understand the ruling of the Chairman to amount to this, that mere presence at a prize fight, unexplained, is conclusive proof of aiding and abetting, even if there had been no evidence that the person or persons so present encouraged or intended to encourage the fight by his or their presence. I cannot hold, as a proposition of law, that the mere looking on is ipso facto a participation in or encouragement of a prize fight. I think there must be more than that to justify conviction for an assault. If, for instance, it was proved that a person went to a prize fight knowing it was to take place, and remain there for some time looking on, I think that would be evidence from which a jury might infer that such person encouraged and intended to encourage the fight by his presence. In the present case the three prisoners were merely seen in the crowd, were not seen to do anything, and there was no evidence why or how they came there, or how long they stayed.’
Huddleston B commented on the direction of the Chairman of Quarter Sessions: ‘If he had told the jury that going to a prize fight to see the combatant strike each other, and be present when they did so, was evidence from which they might find that the defendants countenanced what was going on, and that therefore they might find them guilty, I should have been disposed to support that ruling. But that is not the effect of his summing up.’
This case is cited by:

  • Cited – Regina v Brown (Anthony); Regina v Lucas; etc HL (Independent 12-Mar-93, lip, [1994] 1 AC 212, Bailii, [1993] UKHL 19, Bailii, [1992] UKHL 7, [1993] 2 WLR 556, [1993] 2 All ER 75)
    The appellants had been convicted of assault, after having engaged in consensual acts of sado-masochism in which they inflicted varying degreees of physical self harm. They had pleaded guilty after a ruling that the prosecution had not needed to . .
  • Cited – F v West Berkshire Health Authority HL ([1990] 2 AC 1, Bailii, [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 . .
  • Cited – Regina v Brown etc CACD (Gazette 15-Apr-92, [1992] QB 491, [1992] 2 All ER 552, [1992] 2 WLR 441)
    The defendants appealed against their convictions for offences under the 1861 Act of assaults inflicting injury. They said that as sado-masochists, they had mutually consented to the assaults and that no offences had been commited, but pleaded gulty . .
  • Cited – Lane v Holloway CA ([1967] 3 All ER 129, [1968] 1 QB 379, Bailii)
    In the context of a fight with fists, ordinarily neither party has a cause of action for any injury suffered during the fight. But they do not assume ‘the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of . .
  • Cited – Gnango, Regina v CACD (Bailii, [2010] EWCA Crim 1691, [2010] WLR (D) 201, WLRD, [2011] 1 WLR 1414, [2011] 1 All ER 153, [2010] 2 Cr App R 31)
    The defendant appealed against his conviction for murder. He had engaged in a street battle using guns. A bullet from an opponent killed an innocent passer by. The court was asked whether the principles of joint venture and transferred malice could . .
  • Cited – Gnango, Regina v SC ([2012] 2 All ER 129, [2012] 2 WLR 17, [2012] 1 Cr App R 18, [2012] 1 AC 827, Bailii, [2011] UKSC 59, SC Summary, SC, UKSC 2010/0165, Bailii Summary)
    The prosecutor appealed against a successful appeal by the defendant against his conviction for murder. He and an opponent had engaged in a street battle using guns. His opponent had shot an innocent passer by. The court was now asked as to whether . .
  • Cited – Bauer and Others v The Director of Public Prosecutions Admn (Bailii, [2013] EWHC 634 (Admin), [2013] 1 WLR 3617)
    The appellants had entered Fortnum and Masons to demonstrate against tax avoidance. They appealed against convitions for aggravated trespass.
    Held: The statutory question posed by s.68 is whether the prosecution can prove that the trespasser . .
  • Cited – Jogee and Ruddock (Jamaica) v The Queen SC ([2016] 2 WLR 681, UKSC 2015/0015, SC, SC Summary, SC Video, Bailii, [2016] UKSC 8, [2016] WLR(D) 84, WLRD, [2016] UKPC 7)
    The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had directed the jury that he . .

(This list may be incomplete)
Leading Case
Last Update: 17 March 2019
Ref: 182285

Banque Belge pour L’Atranger v Hambrouck: 1921

References: [1921] 1 KB 321
Coram: Bankes LJ, Atkin LJ
Ratio: Money was stolen by a thief. He then paid it by way of a gift into the bank account of the woman with whom he was living. The victim claimed its return from the woman and her bankers. andpound;315 of the balance in her account represented part of the stolen money. She argued that, having no notice of the theft, she obtained a good title to it because it was a gift to her from the thief and the fact that she had paid the money into her banking account prevented any following of the money and that an action for money received would therefore not lie.
Held: The victim was entitled to the andpound;315. The woman, as a donee, had been unjustly enriched by the receipt of money stolen from the victim and retained andpound;315, part of that money. She was bound to reimburse the victim. The trust could be followed into the bank account and it ordered return of the andpound;315.
Bankes LJ said: ‘To accept either of the two contentions with which I have been so far dealing would be to assent to the proposition that a thief who has stolen money, and who from fear of detection hands that money to a beggar who happens to pass, gives a title to the money to the beggar as against the true owner – a proposition which is obviously impossible of acceptance.’
Atkin LJ said: ‘as the money paid into the bank can be identified as the product of the original money, the plaintiffs have the common law right to claim it, and can sue for money had and received.’
This case is cited by:

  • Cited – Shalson v Russo ChD (Times 03-Sep-03, Gazette 18-Sep-03)
    The claimant sought recovery of substantial sums he had advanced by way of loan, where the loan was induced by fraud. He sought to trace the funds into, inter alia, a motor yacht which it had been used to purchase.
    Held: The transaction was . .
  • Cited – Lipkin Gorman (a Firm) v Karpnale Ltd HL ([1991] 2 AC 548, Bailii, [1988] UKHL 12, [1991] 3 WLR 10)
    The plaintiff firm of solicitors sought to recover money which had been stolen from them by a partner, and then gambled away with the defendant. He had purchased their gaming chips, and the plaintiff argued that these, being gambling debts, were . .

(This list may be incomplete)

Last Update: 17 March 2019
Ref: 186100

British Movietone News Limited v London and District Cinemas Limited: HL 1952

References: [1952] AC 166
Coram: Viscount Simon
Ratio: Viscount Simon said: ‘It is of the utmost importance that the action of a court, when it decides that in view of a supervening situation the rights and obligations under a contract have automatically ceased, should not be misunderstood. The suggestion that an ‘uncontemplated turn of events’ is enough to enable a court to substitute its notion of what is ‘just and reasonable’ for the contract as it stands, even though there is no ‘frustrating event,’ appears to be likely to lead to some misunderstanding. The parties to an executory contract are often faced, in the course of carrying it out, with a turn of events which they did not at all anticipate – a wholly abnormal rise or fall in prices, a sudden depreciation of currency, an unexpected obstacle to execution, or the like. Yet this does not in itself affect the bargain they have made. If, on the other hand, a consideration of the terms of the contract, in the light of the circumstances existing when it was made, shows that they never agreed to be bound in a fundamentally different situation which has now unexpectedly emerged, the contract ceases to bind at that point – not because the court in its discretion thinks it just and reasonable to qualify the terms of the contract, but because on its true construction it does not apply in that situation.’
Jurisdiction: England and Wales
This case cites:

  • Adopted – Nelson Line (Liverpool) Ltd v James Nelson and Sons Ltd HL ([1908] AC 16)
    Where there is in a contract an absolute promise with an exception engrafted upon it, the exception is to be construed strictly, and extends only so far as it is expressed with clearness and certainty. The parties to an agreement may contract . .

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

  • Cited – Gold Group Properties Ltd v BDW Trading Ltd TCC (Bailii, [2010] EWHC 323 (TCC))
    The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .

(This list may be incomplete)

Last Update: 17 March 2019
Ref: 402547

Silver v Silver: 1955

References: [1955] 1 WLR 728
Ratio:
This case is cited by:

  • Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL (Bailii, [2008] UKHL 53, HL, Times 13-Aug-08, [2008] 3 WLR 549, [2009] 1 AC 287, (2008) 26 BHRC 429, [2008] 3 FCR 1, [2008] HRLR 45, [2008] Fam Law 994, [2008] 2 FLR 1462, [2008] 3 All ER 1094, [2008] UKHRR 1232)
    In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 272213

Colchester Estates (Cardiff) v Carlton Industries plc: 1984

References: [1986] Ch 80, [1984] 2 All ER 601
Coram: Justice Nourse
Ratio: If a decision of a court has been reached after full consideration of an earlier decision which went the other way, it should not be open to review on a third occasion when the same point arose for decision.
Nourse J said: ‘There must come a time when a point is normally to be treated as having been settled at first instance. I think that should be when the earlier decision has been fully considered, but not followed, in a later one. Consistently with the modern approach of the judges of this court to an earlier decision of one of their number . . I would make an exception only in the case, which must be rare, where a third judge is convinced that the second was wrong in not following the first.’
This case is cited by:

  • Cited – In re Cromptons Leisure Machines Ltd ChD (Times 27-Dec-06)
    The section gave the court a jurisdiction to authorise payments to people would be preferred creditors in a winding up. . .
  • Cited – Futter and Another v Futter and Others ChD (Bailii, [2010] EWHC 449 (Ch), [2010] Pens LR 145, [2010] STC 982, [2010] STI 1442, [2010] BTC 455, [2010] WTLR 609)
    Various family settlements had been created. The trustees wished to use the rule in Hastings-Bass to re-open decisions they had made after receiving incorrect advice.
    Held: The deeds were set aside as void. The Rule in Hastings-Bass derives . .
  • Cited – Milebush Properties Ltd v Tameside Metropolitan Borough Council and Others ChD (Bailii, [2010] EWHC 1022 (Ch), [2010] 2 EGLR 93, [2010] NPC 58, [2010] JPL 1303, [2010] 20 EG 145, [2010] 30 EG 64)
    The claimant sought a delaration that it had a right of way over an access road. The defendants said that the agreement fell foul of the 1989 Act.
    Held: The claimant was not entitled to the declaration. Agreements under the 1990 Act are . .

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 247762

Thorby v Goldberg: 1964

References: (1964) 112 CLR 597
Ratio: (High Court of Australia) If, when a contract is negotiated on behalf of a company, the directors bona fide think it in the interests of the company as a whole that the transaction should be entered into and carried into effect they may bind themselves by the contract to do whatever is necessary to effectuate it.
Jurisdiction: Australia
This case is cited by:

  • Cited – Fulham Football Club Ltd v Cabra Estates plc CA ([1994] 1 BCLC 363)
    Fulham, as lessees of Craven Cottage, agreed with CABRA, a developer, who had applied for planning permission to redevelop the ground, shortly before a public inquiry which had been set up to consider the planning application; and also a proposal by . .

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 241637

The Demetra K: CA 2002

References: [2002] 2 Lloyd’s Rep 581
Coram: Lord Phillips of Worth Matravers MR
Ratio: The court set out the elements to be satisfied before ordering a rectification of a commercial contract, in particular, the need for an antecedent agreement with outward expression of a common intent, and convincing evidence sufficient to discharge the burden of proving a common mistake in translating the previous agreement into contractual form.
Held: Those negotiating the contract each assumed that their agreement on a certain matter would have a certain effect, but they had never discussed and agreed upon that effect. There was not enough for rectification: ‘Mr Lee and Mr Mitchell plainly agreed that the Oct. 3 addendum should be deleted from the slip policy. We do not believe that either of them gave precise consideration to the effect of this deletion. It may be that Mr. Mitchell assumed that it would relieve the insurers from all risk arising from vandalism, sabotage and malicious mischief. It may be that Mr. Lee had a similar belief. If they both shared that belief this would not establish a claim for rectification of the policy.’ and ‘Where a policy provides cover against one of two or more concurrent causes of a casualty, a claim will lie under the policy provided that there is no relevant exclusion. Where, however, a policy contains an express exclusion of cover in respect of loss resulting from a specified cause, underwriters will be under no liability in respect of a loss resulting from that cause, notwithstanding the fact that there may have been a concurrent cause of the loss which falls within the cover.’
Jurisdiction: England and Wales
This case cites:

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

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 200213

McCawley v The King: PC 1920

References: [1920] AC 691
Coram: Lord Birkenhead
Ratio: The Board was asked whether a Queensland statute authorising the Governor in Council to appoint a judge of the Court of Industrial Arbitration to hold office for seven years, was in fatal conflict with a provision of the 1859 Order in Council and a section of the Constitution Act 1867.
Held: It was not, since the legislature of Queensland had power to enact the Queensland statute both under s.5 of the 1865 Act and under clause 22 of the Order in Council. Lord Birkenhead compared and contrasted controlled and uncontrolled constitutions: ‘ . . a constitution [is not] debarred from being reckoned as an uncontrolled constitution because it is not, like the British constitution, constituted by historic development, but finds its genesis in an originating document which may contain some conditions which cannot be altered except by the power which gave it birth. It is of the greatest importance to notice that where the constitution is uncontrolled the consequences of its freedom admit of no qualification whatever.’
Statutes: Colonial Laws Validity Act 1865 5
Jurisdiction: Australia
This case is cited by:

  • Cited – Regina on the Application of Jackson and others v HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn (Bailii, [2005] EWHC 94 (Admin), Times 31-Jan-05)
    The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
  • Cited – Jackson and others v Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87, [2005] 4 All ER 1253)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

(This list may be incomplete)

Last Update: 15 March 2019
Ref: 222715

Codelfa Construction v State Rail Authority of New South Wales: 1982

References: (1982) 149 CLR 337
Coram: Mason J
Ratio: Mason J referred to the need for a term to be implied into a contract where ‘a term which should have been included had been omitted.’
Jurisdiction: Australia
This case is cited by:

(This list may be incomplete)

Last Update: 14 March 2019
Ref: 248232