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Harris v Birkenhead Corporation: CA 12 Nov 1975

A four year old child had fallen from a second-story window in a derelict house owned by the defendant, and suffered serious injury. The house and others had been purchased by compulsion for intended clearance. The Corporation appealed against a finding of liability.
Held: Appeal and cross-appeals dismissed. For the purposes of the Act, the Corporation, having the immediate right of control of the property, became its occupier as soon as a tenant had left. An occupier has a duty to protect infants from a danger of trespassing. The Council knew the property was empty. They had control of it and they had done nothing about providing any such protection.
Megaw, Lawton, Ormrod LJJ
[1976] 1 All ER 341, [1975] EWCA Civ 10, [1975] 1 WLR 379
Bailii
Housing Act 1957
England and Wales
Citing:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Wheat v E Lacon and Co Ltd HL 1966
The Appellant’s husband, fell while going down the back stairs of a public house called ‘The Golfer’s Arm’ at Great Yarmouth. He was found lying on the floor of the vestibule at the bottom of the stairs and died later. She appealed against rejection . .

Cited by:
Distinguished – Bushell and Others, Regina (on the Application Of) v Newcastle Licensing Justices and others CA 25-Jun-2004
The applicant sought special removal of a justices on-licence from former premises to its new premises.
Held: The special removal procedure was limited to circumstances of urgency. The applicant had to show that the circumstances fell within . .
Cited – Rose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189963

Leaf v International Galleries (a Firm): CA 1 Mar 1950

In 1944, the plaintiff had purchased a picture of Salisbury Cathedral from the defendant. By innocent misrepresentation, he was told that it was by Constable, and only learned of the error when he set out to sell it five years later.
Held: On the assumption that it was not a Constable and that it had been a condition of the contract that it be such, the plaintiff had had a right to reject the picture. That right would be lost after a reasonable time. Five years was too long, and the right to reject was lost.
Denning LJ said: ‘In my opinion, this case is to be decided according to the well known principles applicable to the sale of goods. This was a contract for the sale of goods. There was a mistake about the quality of the subject-matter, because both parties believed the picture to be a Constable; and that mistake was in one sense essential or fundamental. But such a mistake does not avoid the contract: there was no mistake at all about the subject-matter of the sale. It was a specific picture, ‘Salisbury Cathedral’. The parties were agreed in the same terms on the same subject -matter, and that is sufficient to make a contract: see Solle v Butcher.
‘There was a term in the contract as to the quality of the subject-matter: namely, as to the person by whom the picture was painted – that it was by Constable. That term of the contract was, according to our terminology, either a condition or a warranty. If it was a condition, the buyer could reject the picture for breach of the condition at any time before he accepted it, or is deemed to have accepted it; whereas, if it was only a warranty, he could not reject it at all but was confined to a claim for damages. . . I think it right to assume in the buyer’s favour that this term was a condition’
Sir Raymond Evershed MR, Denning LJ, Jenkins LJ
[1950] 1 All ER 693
England and Wales
Citing:
Cited – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .

Cited by:
Cited – Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189997

Bird v Holbrook: CCP 9 May 1828

Whether a trespasser who was injured could recover or not depends at common law upon whether notice had been given him of the presence of those dangers on the defendant’s land. Burrough J said: ‘The Plaintiff was only a trespasser: if the Defendant had been present, he would not have been authorised even in taking him into custody, and no man can do indirectly that which he is forbidden to do directly.’
Burrough J, Best CJ
(1828) 4 Bing 628, [1828] EngR 580, (1828) 130 ER 911
Commonlii
England and Wales
Cited by:
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.180981

Ames v MacLeod: OHCS 1969

The accused, who was alleged to have been driving a motor car, had been walking beside it as it ran down a slight incline, and had steered it by placing his hand on the wheel. The car had run out of petrol.
Held: The question turned on whether the defendant was ‘in a substantial sense controlling the movement and direction of the car,’ and held that this test was satisfied.
1969 JC 1
England and Wales
Cited by:
Cited – Regina v MacDonagh CA 1974
The Road Traffic Acts do not define the word ‘drive’ and in its simplest meaning it refers to a person using the driver’s controls for the purpose of directing the movement of the vehicle. It matters not that the vehicle is not moving under its own . .
Cited – Hoy v McFadyen HCJ 2000
The accused was charged with driving whilst disqualified. He had been in the driver’s seat and had started the engine. On turning off the engine the car lurched forward slightly. The handbrake was defective and would not hold the car on a slope. To . .
Cited – Director of Public Prosecutions v Alderton Admn 25-Nov-2003
The defendant had been found sat in his car. He had been spinning its wheels, but not moving. The prosecutor appealed against dismissal of a charge of attempting to drive whilst under the influence of alcohol.
Held: The appeal succeeded. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.189934

Re X (Non-Accidental Injury: Expert Evidence): FD 11 Apr 2001

A child had been injured, and the local authority sought a care order. An expert witness for the parents had argued that the child may have suffered a condition of Temporary Brittle Bone Disease (TBBD).
Held: Though the parents had been convicted before a criminal court, there had been no finding of fact relevant to the current application. The expert evidence was quite unsatisfactory. TBBD is not recognised as a condition, and the expert’s evidence was so tendentious as to call into question the validity of his claim to be an expert witness. The burden of proof of abuse lay upon the local authority but on the balance of probability. Though the injury could be safely ascribed to neither parent the threshold criteria had been reached and directions were given for further hearings.
Singer J
[2001] EWHC Fam 1, [2001] 2 FLR 90, [2001] EWHC Fam 6, [2001] Fam Law 497
Bailii, Bailii
England and Wales
Citing:
Cited – Re AB (Child Abuse: Expert Witnesses) FD 1995
. .
Cited – Re R (A Minor) (Expert’s Evidence) FD 1991
The court gave guidance on the principles to be followed by experts providing evidence in children cases. . .

Cited by:
Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.163054

Perry v Truefitt: CA 8 Dec 1842

The court considered the nature of the tort of passing off. ‘I think that the principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort, is very well understood. A man is not to sell his own goods under the pretence that they are the goods of another man; he cannot be permitted to practice such a deception, nor to use the means which contribute to that end. He cannot therefore be allowed to use names, marks, letters, or other indicia, by which he may induce purchasers to believe, that the goods which he is selling are the manufacture of another person. I own it does not seem to me that a man can acquire property in a name or mark; but whether he has or not a property in the name or mark, I have no doubt that another person has not the right to use that name or mark for the purposes of deception, and in order to attract to himself the course of trade, or that custom, which without the improper act, would have flowed to the person who first used, or was alone in the habit of using the particular name or mark.’
Lord Langdale MR
(1842) 49 ER 749, (1842) 6 Beav 66, [1842] EngR 1167, (1842) 6 Beav 66, (1842) 49 ER 749
Commonlii
England and Wales
Cited by:
Cited – Inter Lotto (UK) Limited v Camelot Group Plc ChD 6-Jun-2003
The claimant asserted that the defendant had infringed its goodwill in the name ‘Hot Picks’ the defendant argued that it was licensed to use the mark by the person who applied for its registration as a trade mark, and that the claim in passing off . .
Cited – Erven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .
Cited – Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited PatC 29-Oct-1997
The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had . .
See Also – Perry v Truefitt 5-Jul-1844
. .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.183303

Randell, In re; Randell v Dixon: ChD 10 Feb 1888

A testatrix bequeathed pounds 14,000 on trust to pay the income to the incumbent of the church at H. for the time being so long as he permitted the sittings to be occupied free : in case payment for sittings was ever demanded, she directed the pounds 14,000 to fall into her residue.
Held: first, that the testatrix had not expressed a general intention to devote the pounds 14,000 to charitable purposes, so that in case of failure of the trust for the benefit of the incumbent the fund would be applied cy-pres ; secondly, that the direction that the fund should fall into the residue, being a direction that the fund should go as the law would otherwise carry it, did not offend the rule against perpetuities.
(1888) 38 Ch D 213, [1888] UKLawRpCh 33
Commonlii
England and Wales
Cited by:
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.653190

Sowler v Potter: 1939

The defendant had been convicted of an offence of permitting disorderly conduct in a cafe, under her proper name of Ann Robinson. She then assumed the name of Ann Potter. The plaintiff’s evidence was that, if he had known that she was Ann Robinson, he would not have granted her the lease, for use as a restaurant, and contended that the lease was void for mistake.
Held: Accepting this argument.
Tucker J said: ‘This case of landlord and tenant is clearly a case where the consideration of the person with whom the contract was made was a vital element in the contract, and that, therefore, if there was any mistake on the part of the plaintiff with regard to the identity of the person with whom she was contracting, the contract is void ab initio.’
Tucker J
[1939] 4 All ER 478, [1940] 1 KB 271, 162 LT 12, 56 TLR 142, 84 Sol Jo 115
England and Wales
Cited by:
Criticised – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .
Criticised – Gallie v Lee HL 1971
Lord Wilberforce said that the principles of non est factum are designed to protect also innocent third parties who may rely upon a document signed apparently correctly. . .
Criticised – Lewis v Averay CA 22-Jul-1971
A private seller had parted with his car in return for a worthless cheque to a rogue who persuaded him that he was the well-known actor who played Robin Hood on television, and who sold it on to the defendant.
Held: ‘When two parties have come . .
Cited – Norman Hudson v Shogun Finance Ltd CA 28-Jun-2001
A rogue had purchased a car, using a false name to obtain finance. He had then sold it to the defendant. The finance company claimed the car back.
Held: The dealer had not taken all the steps he might have done to check the identity of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.188422

Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd: CA 15 Dec 1989

The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig fit the description given.
Held: The appeal failed (Slade LJ dissenting).
Nourse LJ said: ‘many dealers habitually deal with each other on the principle caveat emptor. For my part, being confident that that principle would receive general acceptance amongst dealers, I would say that the astuteness of lawyers ought to be directed towards facilitating, rather than impeding, the efficient working of the market. The court ought to be exceedingly wary in giving a seller’s attribution any contractual effect. To put it in lawyers’ language, the potential arguability of almost any attribution, being part of the common experience of the contracting parties, is part of the factual background against which the effect if any, of an attribution must be judged.
Slade, Nourse, Stuart-Smith LJJ
[1991] 1 QB 564, [1989] 3 WLR 13, [1990] 1 All ER 737, Times 22-Dec-1989, [1989] EWCA Civ 4
Bailii
Sale of Goods Act 1979 13
England and Wales
Citing:
Cited – Varley v Whipp QBD 1900
The defendant agreed to buy from the plaintiff a self binder reaping machine, which the defendant had not seen, but which the plaintiff told him had been new the previous year and was represented to have only been used to cut 50 or 60 acres. On . .
Cited – Couchman v Hill CA 1947
The plaintiff purchased from the defendant at auction a heifer which was described in the sale catalogue as ‘unserved’. Later, having been found to be in calf, she died as a result of carrying it at too young an age.
Held: the description of . .
Cited – Joseph Travers and Sons Ltd v Longel Ltd 1947
It being found that the plaintiff buyer had not relied on the inaccurate descriptive name for boots purchased, the sale was not one by description. . .
Cited – Solle v Butcher CA 1949
Fundamental Mistake Needed to Allow Rescission
The court set out the circumstances in which the equitable remedy of rescission of a contract is available for mutual mistake. The mistake has to be as to some fundamental element of the contract. What is ‘fundamental’ is a wider category of event . .
Cited – Leaf v International Galleries (a Firm) CA 1-Mar-1950
In 1944, the plaintiff had purchased a picture of Salisbury Cathedral from the defendant. By innocent misrepresentation, he was told that it was by Constable, and only learned of the error when he set out to sell it five years later.
Held: On . .
Cited – Berger and Co Inc v Gill and Duffus SA (No 2) HL 1984
The sellers had agreed to sell 500 tonnes of bolita beans cif Le Havre. In the event only 445 tonnes were discharged at Le Havre and the remaining 55 tonnes were on-carried to Rotterdam. The documents in respect the 500 tonnes were presented but . .
Cited – Grant v Australian Knitting Mills PC 21-Oct-1935
(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, . .
Cited – Rogers v Parish (Scarborough) Ltd CA 1987
The plaintiff appealed against rejection of his claim that the car he had bought from the defendant was not of merchantable quality. The goods were a Range Rover bought for a sum in excess of andpound;14,000.
Held: The appeal was allowed. . .

Cited by:
Cited – Drake v Thos Agnew and Sons Limited QBD 8-Mar-2002
The claimant sought the return of money paid by him for a painting. He said it had been sold to his agent as by ‘Van Dyck’ but subsequently proved not to be so. He had employed an agent to acquire the painting, but the agent had not disclosed to him . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.183425

Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited: PatC 29 Oct 1997

The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had to show that the descriptive term ‘Swiss Chocolate’ had acquired a distinctive meaning. A name is protectable in a passing off action if the plaintiff can show that the words sued upon had the protectable meaning alleged.
Laddie J
Times 25-Nov-1997, [1997] EWHC Patents 360
Bailii
England and Wales
Citing:
Cited – Perry v Truefitt CA 8-Dec-1842
The court considered the nature of the tort of passing off. ‘I think that the principle on which both the courts of law and of equity proceed, in granting relief and protection in cases of this sort, is very well understood. A man is not to sell his . .
Cited – Spalding (A G ) and Brothers v A W Gamage Ltd HL 1915
The House considered the requirements for the tort of passing off. The judge has the sole responsibility for deciding whether anybody has been misled. He will hear evidence, but must not surrender his assessment to others.
Lord Parker said: . .
Cited – Erven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .
Cited – Erven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .
Cited – Dent v Turpin 1861
. .
Cited – Taittinger and Others v Allbev Ltd and Another CA 30-Jun-1993
An injunction was granted to restrain the labelling of a sparkling fruit (Elderflower Champagne) non-alcoholic drink made in Surrey to include the word ‘champagne’. The trial judge had held that all the necessary ingredients for a successful passing . .
Cited – Vine Products Ltd v Mackenzie and Co Ltd (the Sherry Case) ChD 1969
Assorted sherry producers and shippers to write to producers and importers of ‘British Sherry’ asking them to stop using the word ‘sherry’ other than in relation to wines emanating from the Jerez district of Spain. Those producers and importers to . .
Cited – Southorn v Reynolds 1865
. .
Cited – Bollinger v Costa Brava Wine Co Ltd 1960
Intruders into the market brought into England a wine somewhat similar to Champagne. It had been produced in the Costa Brava district of Spain. They marketed it under the name ‘Spanish Champagne’. The French growers and shippers brought an action to . .
Cited – Harrods Ltd v Harrodian School CA 3-Apr-1996
No passing off was to be found to have been shown without the public believing that the plaintiff was responsible for the defendant’s services or goods. It was not enough to show only that the defendant was somehow ‘behind’ the defendant. Millet LJ . .
Cited – CIVC v Wineworths 1991
(New Zealand High Court) . .
Cited – Ford v Foster 1871
. .
Cited – Neutrogena Coroporation v Golden Ltd CA 1996
The court discussd the ‘substantial proportion of the public’ test applied in passing off. The purpose of this evidence was to provide real evidence from ordinary members of the public wholly untainted by any artificiality. . .
Cited – Newman v Pinto CA 1887
Bowen LJ said: ‘A lie may be told by a box just as well as by the mouth of an individual.’ . .

Cited by:
Appeal from – Chocosuisse Union Des Fabricants Suisse De Chocolat et Al v Cadbury Ltd CA 25-Feb-1999
A trade association formed to protect a trading style or name, but which did not itself trade in the goods, had no trade which was capable of being damaged and accordingly had no locus standi to found an action for passing off against the use of the . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.163056

Dhaliwal and Others v Regina: CACD 3 Jul 2020

Whether a serious irregularity caused by a juror conducting his own research into a defendant’s background undermines the fairness of the trial and the safety of the convictions of eight defendants in a long running high profile trial of serious sexual offences committed against young girls.
Mr Justice Spencer
[2020] EWCA Crim 843
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.653182

Withington KFC and NNS Services v Revenue and Customs: FTTTx 5 Aug 2020

Vat – Assessments : Best Judgment – Food takeaway – Sale of business by First Appellant to Second Appellant – Was Second Appellant’s turnover in excess of registration threshold? – Best judgment – Yes – Was HMRC’s registration of NNS correct? – Yes – Was this a Transfer of a Going Concern from First Appellant to Second Appellant? – Yes – Back calculation of Second Appellant’s turnover to First Appellant – Was this to best judgment? – Yes – Was First Appellant Liable No Longer Liable? – Yes – Should First Appellant’s appeal against the Assessment be struck out in the absence of First Appellant making a return: VAT Act 1994 section 83(1)(p)(i)? – Yes – Appeal of First Appellant against Registration Decision dismissed – Appeal of First Appellant against Assessment struck-out (but, if not struck-out, would nonetheless have been dismissed) – Appeal of Second Appellant against Registration Decision dismissed
[2020] UKFTT 319 (TC)
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.653166

Foley v The County Council of The City and County of Cardiff: Admn 7 Aug 2020

The claimant challenge the making by the council of a compulsory purchase order of a dwelling owned by him. It is an end of terrace two storey property in a popular location about one mile from the city centre and close to local amenities, but has stood empty since 1994.
[2020] EWHC 2182 (Admin)
Bailii
Acquisition of Land Act 1981
England and Wales

Updated: 16 October 2021; Ref: scu.653051

Kharadi v Revenue and Customs (Value Added Tax : Appeals v Compulsory Registration): FTTTx 23 Apr 2020

VALUE ADDED TAX – appeals against compulsory registration and ‘failure to notify’ penalties – were appeals notified to Tribunal after time specified in s83G VATA 1994? – yes – Tribunal’s permission needed to make appeals – Martland applied – eight-month delay due to misunderstanding of VAT appeal procedure by taxpayer’s accountants – serious delay – not a good reason – failure by HMRC to offer review at same time as notifying decision on penalties – permission granted in respect of penalty appeal but denied in respect of registration appeal
[2020] UKFTT 200 (TC)
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.651577

Article 39, Regina (on The Application of) v Secretary of State for Education: Admn 7 Aug 2020

Challenge to the lawfulness of the 2020 Regulations which amend a series of regulatory protections in respect of children social care services. The Claimant is a children’s rights charity whose aims are the promotion and protection of children living in institutional settings.
Mrs Justice Lieven DBE
[2020] EWHC 2184 (Admin)
Bailii
Adoption and Children (Coronavirus) Amendment Regulations 2020
England and Wales

Updated: 16 October 2021; Ref: scu.653049

Revenue and Customs v Fowler (Income Tax): UTTC 30 May 2017

INCOME TAX – preliminary issue – section 15 ITTOIA 2005 – performance of duties of employed diver in UK waters treated as the carrying on of a trade in the UK – respondent resident in South Africa – whether income taxable as employment income under Article 14 or as business profits under Article 7 of the South Africa/UK Double Tax Treaty 2002 – interpretation of the Double Tax Treaty in accordance with the Vienna Convention on the Law of Treaties – application of Article 3(2) of the Double Tax Treaty
[2017] UKUT 219 (TCC), [2017] BTC 518, [2017] STC 1385
Bailii
Double Taxation Relief (Taxes on Income) (South Africa) Order 2002, Income Tax (Trading and Other Income) Act 2005 15
England and Wales
Citing:
Appeal from – Fowler v Revenue and Customs (Income Tax/Corporation Tax : Double Taxation) FTTTx 12-Apr-2016
INCOME TAX – preliminary issue – section 15 ITTOIA 2005 – performance of duties of employed diver in UK waters treated as the carrying on of a trade in the UK – appellant resident in South Africa – whether income taxable as employment income under . .

Cited by:
Appeal from – Fowler v HM Revenue and Customs CA 15-Nov-2018
Whether offshore diver was employee or self employed. . .
At UTTC – Fowler v Revenue and Customs SC 20-May-2020
The taxpayer, a diver resident in South Africa had undertaken engagements within UK waters and now disputed his liability to Income Tax using a deeming provision in section 5 of the 2005 Act being self employed.
Held: HMRC’s appeal succeeded. . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.584686

Fowler v Revenue and Customs (Income Tax/Corporation Tax : Double Taxation): FTTTx 12 Apr 2016

INCOME TAX – preliminary issue – section 15 ITTOIA 2005 – performance of duties of employed diver in UK waters treated as the carrying on of a trade in the UK – appellant resident in South Africa – whether income taxable as employment income under Article 14 or business profits under Article 7 South Africa/UK Double Tax Treaty 2002 – interpretation of Double Tax Treaty in accordance with the Vienna Convention on the Law of Treaties – application of Article 3 (2) South Africa/UK Double Tax Treaty
[2016] UKFTT 234 (TC), [2016] STI 1718, 18 ITL Rep 644, [2016] SFTD 535
Bailii
Double Taxation Relief (Taxes on Income) (South Africa) Order 2002, Income Tax (Trading and Other Income) Act 2005 15
England and Wales
Cited by:
Appeal from – Revenue and Customs v Fowler (Income Tax) UTTC 30-May-2017
INCOME TAX – preliminary issue – section 15 ITTOIA 2005 – performance of duties of employed diver in UK waters treated as the carrying on of a trade in the UK – respondent resident in South Africa – whether income taxable as employment income under . .
At FTTTx – Fowler v HM Revenue and Customs CA 15-Nov-2018
Whether offshore diver was employee or self employed. . .
At FTTTx – Fowler v Revenue and Customs SC 20-May-2020
The taxpayer, a diver resident in South Africa had undertaken engagements within UK waters and now disputed his liability to Income Tax using a deeming provision in section 5 of the 2005 Act being self employed.
Held: HMRC’s appeal succeeded. . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.562853

Butcher v Wolfe and Another: CA 30 Oct 1998

The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank offer before proceedings but had refused to negotiate, even though she got more at trial. In matrimonial matters such an offer must be accompanied by full disclosure. An offer to settle made before an action and which was exceeded in the judgement for the plaintiff could still operate to deny the plaintiff costs where the court felt a reasonable plaintiff should have settled on that basis, or tried to negotiate.
Gazette 18-Nov-1998, Gazette 11-Nov-1998, Times 09-Nov-1998, [1999] 2FCR 165, [1998] EWCA Civ 1648
England and Wales
Citing:
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Sugar v Venables and Michael Joseph Limited (2) CA 17-Oct-1997
The appellant challenged an order for costs against him. He had begun defamation proceedings which were settled upon the terms of an offer without prejudice as to costs. The plaintiff was ordered to pay the defendant’s substantial costs incurred . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – C and H Engineering v F Klucznic and Sons Limited 1992
It is for a defendant to make a clear and unambiguous offer and nothing short of this will provide the protection against costs which is sought. . .
Cited – Roache v News Group Newspapers Ltd CA 23-Nov-1992
In his libel action the plaintiff was awarded andpound;50,000 damages. The same sum had been paid into court, but he obtained additionally an injunction against further publication of the libel and on that account was awarded his costs by the judge . .
Cited – Singh v Parkfield Group Plc QBD 27-Jun-1994
An offer to settle must be backed by a payment into court in debt actions. The defendant here could have protected his position by a payment into court, and therefore a Calderbank offer was ineffective. . .

Cited by:
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.145127

Thornbridge Ltd v Barclays Bank Plc: QBD 27 Nov 2015

The claimant, Thornbridge Limited, seeks damages for losses which it alleges it suffered as a result of entering into an interest rate swap with Barclays Bank PLC in 2008. The claimant alleges that the defendant was negligent and/or in breach of contract and/or in breach of statutory duty in respect of information and advice given to the claimant in relation to the swap.
Held: The claim failed: ‘This is in my view a case based on hindsight and a loan agreement which did not operate as the parties intended. As I have found on the evidence before me, it is not a case of a claimant being advised to enter, or being misled into entering, into a swap which in the circumstances was unsuitable. ‘
Moulder HHJ
[2015] EWHC 3430 (QB)
Bailii
England and Wales

Updated: 16 October 2021; Ref: scu.556970

In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another: 1952

The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was not read over or summarised to him before he executed it and Devlin J was not satisfied that the deceased knew and approved its contents at the time he executed it. However, he found that he knew and approved of the contents of the ‘Last wish’ and had executed the will in the understanding that it gave effect to its provisions.
The court considered the necessary mental capacity of a testator when executing a will: ‘If it were necessary for the defendants who set up the will to satisfy me that at the time when he actually executed the document Mr Wallace knew and approved its contents, I should not be so satisfied. And, indeed, the defendants do not put their case as high as that. The evidence clearly falls short of showing that Mr Wallace read the will, which was not read over to him, or satisfied himself that it carried out his wishes in the matter. The defendants therefore rely upon the principle, which according to the authorities has been well established, that if a testator gives instructions for a will to be drawn, and if the Court is satisfied that he knew and approved the contents of those instructions, it is not necessary that the Court should also be satisfied that he knew and approved the contents of the will, provided that the circumstances were such as would enable the court to say that he knew the will had been drawn according to his instructions.’
Devlin J
[1952] Times LR 925
England and Wales
Citing:
Cited – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .
Cited – Pereira v Pereira; Perera v Perera PC 23-Mar-1901
The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
Held: It is . .

Cited by:
Approved – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Cited – Potter v Potter FdNI 5-Feb-2003
The testator’s capacity to make his will was challenged. He had lived alone without electricity, but his doctor said he was known to him and was ‘with it’. Evidence from a member of staff at the solicitor’s office supported the doctor’s description. . .
Cited – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.196962

Battan Singh v Amirchand: PC 1948

(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand discussed and approved the implication of Parker v Felgate: ‘That case decided that if a testator has given instructions to a solicitor at a time when he was able to appreciate what he was doing in all its relevant bearings, and if the solicitor prepares the will in accordance with these instructions, the will will stand good, though at the time of execution the testator is capable only of understanding that he is executing the will which he has instructed, but is no longer capable of understanding the instructions themselves or the clauses in the will which give effect to them.’ and ‘A testator may have a clear apprehension of the meaning of the draft will submitted to him and may approve it, and yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness is an inducing cause of his choosing strangers to be his legatees, the will is invalid.’
Lord Normand
[1948] AC 161
Citing:
Approved – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
Cited – Perrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.374721

Pereira v Pereira; Perera v Perera: PC 23 Mar 1901

The court considered the effect of a testator having lost capacity at the time he executed his will, saying that, the principal inquiry as to testamentary capacity will be directed to the time when the instructions were given.
Held: It is sufficient if the testator, at the moment of execution, believes the Will to be and if the Will is in accordance with the instructions previously given.
The Board saw no reason in this case to question evidence that the testator was of sound mind when he executed the will, but cited Parker to say that the will might have remained effective if executed in accordance with the conditions in Parker -v- Felgate.
As to the evidence of the attesting witnesses: ‘The question, therefore, comes to this: Having regard to all the circumstances of the case, ought the diagnosis of Dr. Fonseka and Dr. Rockwood, who were not present when the will was executed, to outweigh and prevail over the testimony of eye-witnesses based upon the evidence of their own senses?’
Lord Uthwatt said: ‘Reports of judicial and parliamentary proceedings and, maybe, of some bodies which are neither judicial nor parliamentary in character, stand in a class apart by reason that the nature of their activities is treated as conclusively establishing that the public interest is forwarded by publication of reports of their proceedings. As regards reports of proceedings of other bodies, the status of those bodies taken alone is not conclusive and it is necessary to consider the subject-matter dealt with in the particular report with which the court is concerned. If it appears that it is to the public interest that a particular report should be published, privilege will attach.’
Lord MacNaghten, Lord Uthwatt
[1901] UKPC 16, [1901] AC 354, [1901] 70 LJPC 46, [1901] 84 LT 371
Bailii
Citing:
Approved – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .
Cited – In the estate of Wallace, dec’d; Solicitor of the Duchy of Cornwall v Batten and Another 1952
The deceased shortly before his death wrote and signed a statement called his ‘Last wish’ which provided that certain persons were to have all his property. His instructions were embodied in a will which he executed just before he died. The will was . .
Persuasive – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.421022

Crouch v King’s Healthcare NHS Trust: CA 15 Oct 2004

The defendants sought approval of their practice of making a written offer to the claimants rather than making a payment into court. The offer had been accepted but only after the defendant had purported to withdraw it.
Held: ‘it certainly is not open to any defendant to decree unilaterally that where a money claim is being made against it, it will not make a payment into court but will make a written offer on the basis that Part 36 will apply as though he had made a payment into court. ‘ in making the decision, the judge had been exercising a discretion, and that exercise should not be disturbed.
Lord Justice Waller Lord Justice Mance And Sir Christopher Staughton
[2004] EWCA Civ 1332
Bailii
Civil Procedure Rules 836 44
England and Wales
Citing:
Cited – Amber v Stacey CA 15-Nov-2000
The defendant challenged an order that he should pay the plaintiff’s costs, having made an offer in correspondence which was not accepted.
Held: The claimant had exaggerated his claim, but the defendant’s offer had been inadequate. The judge’s . .
Cited – Southampton Container Terminals Ltd v Hansa Schiffahrts GmbH (The Maersk Colombo) CA 3-May-2001
The claimants operated the container terminal in Southampton. A crane was struck and damaged beyond repair by the defendants’ vessel. The crane was not replaced because before the casualty the claimants had ordered two new cranes. Loss of use of the . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Cumper v Pothecary 1941
The court considered the nature of a payment into court: ‘there is nothing contractual about payment into court. It is wholly a procedural matter and has no true analogy to a settlement arranged between the parties out of court, which, of course, . .
Cited – Flynn v Scougall CA 13-Jul-2004
The defendant had made a payment into court. She then applied to reduce the amount paid in, but the claimant accepted the original sum before that application was heard. The defendant appealed saying that their application operated as a stay.
Cited – MRW Technologies v Cecil Holdings 22-Jun-2001
The court heard an appeal against a Master’s order which had given the defendant permission under rule 36.6(5) to withdraw a Part 36 payment.
Held: The same considerations apply to giving permission to withdraw money in court as to refusing . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.216445

Norris v Norris, Haskins v Haskins: CA 28 Jul 2003

The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range of circumstances of each case. The court required a full discretion, and that should be retained. When looking at Calderbank offers, the court could make fuller use of the provisions of the 1999 Rules, GW -v- RW needs rethinking, and the rules should be amended.
Dame Butler Sloss, Thorpe and Mantell LJJ
[2003] EWCA Civ 1084, Times 26-Aug-2003
Bailii
Family Proceedings (Amendment No 2) Rules 1999 (1999 No 3491) 2.69B, Civil Procedure Rules 44.3
England and Wales
Citing:
Doubted – GW v RW (Financial Provision: Departure from Equality) FD 18-Mar-2003
An entitlement to an equal division must reflect not only the parties’ respective contributions ‘but also an accrual over time’, and it would be ‘fundamentally unfair’ that a party who has made domestic contributions during a marriage of 12 years . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .
Cited – McDonnell v McDonnell CA 1977
In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Singer (formerly Sharegin) v Sharegin 1984
In family proceedings, the starting point for the award of costs is that they prima facie follow the event but that presumption may be displaced much more easily than, and in circumstances which would not apply, in other divisions of the High Court. . .

Cited by:
Cited – Vaughan v Vaughan CA 2-Nov-2007
H appealed an ancillary relief order giving certain extra rights in the family property on its sale.
Held: ‘the case demonstrates that, in an ancillary relief appeal, even the most conscientious appellate judge can fall into error if, having . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.184906

Wright, Regina v: CACD 5 May 2011

Young Cannabis plants found possession, not supply

The defendant appealed against his conviction for growing cannabis with intent to supply. He was found to have 35 plants and appropriate equipment for preparing the produce for division and supply. He said that since the plants had no flowering heads, he was not yet in possession of the drug.
Held: The possession of the juvenile plants was sufficient to found the charge of possession, but he was not yet in possession of those parts of the plant which might be sold, and the charge of possession with intent to supply failed.
Richards LJ, Rafferty, Paget QC JJ
[2011] EWCA Crim 1180, [2011] 2 Cr App Rep 15
Bailii
Misuse of Drugs Act 1971 4(2)(b) 5(3)
England and Wales
Citing:
Cited – Auton and Others v Regina CACD 3-Feb-2011
The court heard appeals against sentence for small scale production of cannabis.
Held: The court considered the use to which the product of cultivation was to be put. Hughes LJ observed: ‘The proper inference as to what the cultivation . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.441299

Re Flynn: ChD 1982

The deceased, who had given instructions for the preparation of the codicil some time earlier, was gravely ill after a heart attack at the time when he executed it and died the next day. The codicil was challenged on the grounds of want of knowledge and approval. An application to strike out a challenge to a codicil on the grounds that the claim disclosed no cause of action. The court considered the effect of delay on a challenge to the validity of a will, and the effect of the alleged inability of the testator to read the will.
Held: Any invalidity arose from the lack of testamentary capacity, and not from any want of knowledge and approval. The challenge failed.
Slade J described the position in law: ‘The authorities appear to show that in a case where a testator, even in a state approaching insensibility, has executed a testamentary instrument drawn up in accordance with previous instructions, he will be held to have known and approved of its contents if, at the time of execution, he was capable of understanding and did understand that he was engaged in executing the will for which he had given instructions, even though at the moment of execution he might not have remembered those previous instructions and would not, at that moment, have understood the provisions of the will, if read to him clause by clause: see Williams and Mortimer, Executors, Administrators and Probate, 15th ed. (1970), p. 148 and the cases there cited. However, if a litigant is successfully to avail himself of this principle he must, I think, satisfy the court at least that the testator at the time of execution was capable of understanding and did understand that he was executing the will for which he had given instructions.’
Slade J
[1982] 1 WLR 310
England and Wales
Citing:
Applied – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
Cited – Perrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.421023

Thomas v Jones: 6 Mar 1928

Lord Merrivale, President
Unreported, 06 March 1928
England and Wales
Citing:
Applied – Parker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
Cited – Clancy v Clancy ChD 31-Jul-2003
Four months before her death the deceased, gave instructions for a new will leaving all her estate to her son Edward, omitting his two sisters. Her solicitor drafted a will accordingly and sent it to her. About three months later she was admitted to . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.196961

Potter v Potter: FD 1982

The court considered the admissibility of without prejudice correspondence on costs decisions.
[1982] 3 All ER 321
England and Wales
Citing:
Applied – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.254329

McDonnell v McDonnell: CA 1977

In family proceedings, a costs letter had been written in the form suggested in Calderbank.
Held: The court accepted and endorsed the practice suggested by Cairns LJ. Ormrod LJ said: ‘The important factor which distinguishes this case is the fact that the appellant husband’s solicitors took advantage of a recent decision of this court in Calderbank v. Calderbank. On December 16, 1975, shortly after serving the notice of appeal, they wrote a letter to the wife’s solicitors offering to withdraw the appeal altogether if the wife would agree to a modification of Mrs. Justice Lane’s order in respect of the house. In accordance with the procedure suggested in Calderbank, they headed the letter ‘Without Prejudice’ but reserved the right to bring it to the attention of the court after judgment on the question of costs.’
and ‘Clearly this is a very important consideration in exercising the court’s discretion with regard to costs.It would be wrong, in my judgment, to equate an offer of compromise in proceedings such as these [ancillary proceedings following a divorce] precisely to a payment into court. I see no advantage in the court surrendering its discretion in these matters as it has to all intents and purposes done where a payment into court has been made. A Calderbank offer should influence but not govern the exercise of the discretion. The question to my mind is whether, on the basis of the facts known to the wife and her advisers and without the advantage of hindsight, she ought reasonably to have accepted the proposals in the letter of December 16, bearing always in mind the difficulty of making accurate forecasts in cases such as this. On the other hand, parties who are exposed to the full impact of costs need some protection against those who can continue to litigate with impunity under a civil aid certificate.’
Ormrod LJ
[1977] 1 WLR 34
England and Wales
Citing:
Approved – Calderbank v Calderbank CA 5-Jun-1975
Letter Without Prejudice Save as to Costs
Husband and wife disputed provision under 1973 Act, and a summons under section 17 of the 1882 Act. The wife had offered to transfer a house to H occupied by his mother, worth about pounds 12,000, in return for him leaving the matrimonial home. He . .

Cited by:
Cited – Butcher v Wolfe and Another CA 30-Oct-1998
The parties had been partners in a family farm. On dissolution there was a dispute as to apportionment of costs. An offer had been ‘without prejudice save as to costs’.
Held: Costs may be denied to a plaintiff who had received a Calderbank . .
Cited – Norris v Norris, Haskins v Haskins CA 28-Jul-2003
The court considered how orders for costs were to be made in ‘big money’ cases.
Held: There were two sets of rules. Cases should be considered by first applying the Civil Procedure Rules. This would allow the court to consider the full range . .
Cited – Gojkovic v Gojkovic (No 2) CA 1-Apr-1991
In ancillary relief proceedings, the husband had not made frank disclosure of his assets. The final Calderbank offer of andpound;600,000 was made only the day before the substantive hearing. The offer was rejected. The judge awarded the wife a lump . .
Cited – Cutts v Head and Another CA 7-Dec-1983
There had been a trial of 35 days regarding rights of way over land, which had proved fruitless, and where some orders had been made without jurisdiction. The result had been inconclusive. The costs order was now appealed, the plaintiff complaining . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.186057