Green v Broadcasting Corporation of New Zealand: 22 Sep 1988

(Court of Appeal of New Zealand) The plaintiff had created a hugely sucessful TV programme in the UK, called Opportunity Knocks. He now appealed against rejection of his claim in copyright alleging that the defendant had copied the format, and also in passing off.
Held: Courts have a discretion whether or not to order a new trial where fresh evidence is sought to be introduced and, in exercise of that discretion, they should apply the tests in Ladd v Marshall
Ongley J considered the claim to copyright in the words ‘Opportunity Knocks’ and held that copyright did not subsist in the title. His Honour noted that it is a difficult but not an impossible task to establish copyright in a title. He referred to the Privy Council decision in Francis

Judges:

Somers, Casey, Gallen JJ

Citations:

[1988] NZCA 180, CA40/84, [1988] 2 NZLR 490, (1988) 2 TCLR 701

Links:

Nzlii

Jurisdiction:

England and Wales

Citing:

AppliedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
CitedFrancis Day and Hunter Limited v 20th Century Fox Corporation Limited PC 12-Oct-1939
(Ontario) Copyright protection was asserted on in connection with the title to a film (‘The Man Who Broke the Bank at Monte Carlo’).
Held: It was not a literary work capable of attracting copyright protection. As a rule, such titles do not . .

Cited by:

Appeal fromGreen v Broadcasting Corporation of New Zealand PC 18-Jul-1989
Format of TV show not copyrightable
Court of Appeal of New Zealand – The plaintiff had developed the program ‘Opportunity Knocks’ on British television. He claimed copyright in the general structure or format of a similar television programme in New Zealand, and also in passing off. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 31 December 2022; Ref: scu.567719

Plimmer v Mayor, Councillors and Citizens of the City of Wellington: PC 1884

(New Zealand) Mr Plimmer had occupied land under a revocable licence from the Corporation’s predecessor-in-title and at their request had made extensive improvements to it. He sought compensation when the land was to be vested in the defendant. The defendant denied that he had a sufficient interest.
Held: A person having a reasonable expectation that his occupation would not be disturbed had an interest in land for the purposes of a compensation statute. He had incurred expense at the request of the Government, the owners of the land. These circumstances ‘were sufficient to create in his [Plimmer’s] mind a reasonable expectation that his occupation would not be disturbed . . ‘ In effect, the owner of the land became estopped from asserting that the licence remained revocable. That was sufficient to constitute the licence an ‘estate or interest’ for compensation purposes.
Sir Arthur Hobhouse said: ‘the equity arising from expenditure on land need not fail merely on the ground that the interest to be secured has not been expressly indicated.’ The general aim of a court applying principles of equity is to ‘look at the circumstances in each case to decide in what way the equity can be satisfied’.

Judges:

Sir Arthur Hobhouse

Citations:

[1884] 9 AC 699

Jurisdiction:

England and Wales

Cited by:

CitedYaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
CitedPennine Raceway Ltd v Kirklees Metropolitan Borough Council CA 1983
The claimant had been granted a contractual right to use an airfield for arranging motor racing events. The planning consent was revoked, and compensation was claimed under s164 as ‘a person interested in the land’ which ‘is a section designed to . .
CitedInternational Traders Ferry Ltd v Adur District Council CA 26-Feb-2004
The council served a stop notice. The company sought compensation. The council replied that the company had no legal or equitable interest in the land affected.
Held: The company had occupied the land under a licence. A contractual licensee on . .
CitedYeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
CitedWestern Fish Products Ltd v Penwith District Council and Another CA 22-May-1978
Estoppel Cannot Oust Statutory Discretion
The plaintiff had been refused planning permission for a factory. The refusals were followed by the issue of Enforcement Notices and Stop Notices. The plaintiff said that they had been given re-assurances upon which they had relied.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 20 December 2022; Ref: scu.193607

Director of Public Prosecutions v Brooks: PC 1974

The defendant appealed against a conviction for the possession of drugs.
Held: ‘In the ordinary use of the word ‘possession’, one has in one’s possession whatever is, to one’s knowledge, physically in one’s custody or under one’s physical control.’

Judges:

Lord Diplock

Citations:

[1974] AC 862, (1974) 59 Cr App R 185, [1974] 2 All ER 840

Jurisdiction:

England and Wales

Cited by:

CitedPorter, Regina v CACD 16-Mar-2006
The defendant appealed his conviction of possession of indecent photographs or pseudo-photographs of children. The images had been deleted, and were irrecoverable, but they had originally been viewed through a program which created a smaller . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 12 December 2022; Ref: scu.242678

Attorney General for Hong Kong v Reid and Others: PC 24 Nov 1993

Principalhas proprietary interest in Trust assets

Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:

Judges:

Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum

Citations:

Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Wrongly decidedLister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .

Cited by:

CitedTesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .
Lists of cited by and citing cases may be incomplete.

Equity, Trusts, Commonwealth

Updated: 09 December 2022; Ref: scu.77944

The Lyttelton Times Company Limited v Warners Limited: PC 31 Jul 1907

(New Zealand) Premises had been leased for use as a printing house, including printing plant and machinery, and the landlords occupied the upper floors for use as bedrooms for their hotel. The landlords then sought an injunction and damages in respect of the noise and vibration caused by the printing business.
Held: While the plaintiffs might have the intention of having reasonably quiet bedrooms, the defendant’s intention was that they should be able to print. The lessor had impliedly reserved the right to use the ground floor as a printing works, notwithstanding the noise generated by that use. A right to emit noise can amount to an easement.
Lord Loreburn said that: ‘If A lets a plot to B, he may not act so as to frustrate the purpose for which in the contemplation of both parties the land was hired. So also if B takes a plot from A, he may not act so as to frustrate the purpose for which in the contemplation of both parties the adjoining plot remaining in A’s hands was destined.’

Judges:

Lord Loreburn LC

Citations:

[1907] UKPC 47, [1907] AC 476, [1904-07] All ER 200

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

CitedPwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
CitedRees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 December 2022; Ref: scu.419856

Darryl Neudorf v Network Expressions: 1999

(Supreme Court of British Columbia) The court discussed the test for joint authorship after reviewing authorities in Canada, the US and England and said: ‘In the result I find that the test for joint authorship that should be applied to the facts in the instant case is as follows:
i) Did the plaintiff contribute significant original expression to the songs? If yes,
ii) Did each of the plaintiff and Ms McLachlan intend that their contributions be merged into a unitary whole? If yes,
iii) Did each of the plaintiff and Ms McLachlan intend the other to be a joint author of the song?’ and ‘the creation of the intent to co-author requirement in Childress v. Taylor happened despite the statutory definition of joint authorship . . . not because of it. The court looked beyond the language of the section and moved on to review policy considerations in the application of the section. In particular, the court could not accept that Congress intended to extend joint authorship to, for example, editors and researchers. It was for this reason that the court created the intent to co-author requirement.’

Judges:

Cohen J

Citations:

[1999] RPC 935

Jurisdiction:

Canada

Cited by:

Still Good LawHodgens v Beckingham CA 19-Feb-2003
The defendant appealed a finding of infringement in a music copyright work, ‘Young at Heart’, based on a claim of joint authorship. The claimant had delayed his claim for many years, but now sought only rights to future royalties.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property

Updated: 09 December 2022; Ref: scu.266723

Century National Merchant Bank Limited and others v Omar Davies and others: PC 16 Mar 1998

(Jamaica) The lawfulness of action taken by the Minister of Finance under statutory powers to assume temporary management of three financial institutions was challenged, and the remedies available to aggrieved parties in the event of unlawfulness.

Citations:

[1998] UKPC 12, [1998] AC 628.

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

See AlsoCrawford v Financial Institutions Services Ltd PC 2-Nov-2005
(Jamaica) The government had intervened in banking institutions under the control of the appellant. Subsequently orders had been made against him for compensation in respect of loans made negligently or otherwise than in accordance with good banking . .
Lists of cited by and citing cases may be incomplete.

Financial Services

Updated: 09 December 2022; Ref: scu.159293

Smith v Smith: 1961

(Supreme Court of the Federation of Rhodesia and Nyasaland) The husband, a fugitive from justice in England, had entered Southern Rhodesia on a false passport and his entry and residence had at all times been unlawful under the Immigration Act. The wife obtained a declaration of nullity, but on the husband’s appeal, the court questioned its own jurisdiction. The court conducted a full review of the authorities.
Held: The court distinguished the cases of precarious residence and condoned residence, and found more helpful some South African cases on the statutory concept of domicile in their Immigration Act (which was deliberately distinguished from the common law concept in another case cited by Dicey and Morris, Parker v Principal Immigration Officer [1926] CPD 255) and the cases holding that a domicile of choice acquired during precarious residence was destroyed by actual deportation, at least where there was also a prohibition on return (including Ex parte Macleod [1946] CPD 312, the last of the cases cited by Dicey and Morris; see also Ex parte Donelly 1915, WLD 29; Ex parte Gordon 1937, WLD 35). He concluded: ‘I should formulate the proposition in this way. Acquisition of a domicile of choice requires both residence and animus manendi. Not every kind of de facto residence will suffice. It must usually be residence of one’s free will, or at least, if it is not, the residence can be of no value as evidence of an animus manendi. The animus manendi must be both genuine and honest. An intention to persist indefinitely in a course of unlawful conduct may be genuine: but it cannot be honest. Fears that the worst may happen do not necessarily preclude a sufficient animus. But knowledge that one is residing only in defiance of the law, and will so continue indefinitely, makes it impossible to have an animus manendi of the requisite quality. I think also that the matter may properly be put in another way. The animus manendi, though it does not require an absolute intention to reside permanently, must at least be an unconditional intention to reside for an indefinite period. . . . In this case, the intention of the appellant, putting it at the highest, can only have been, ‘I will stay in Rhodesia if I can escape the attention of the authorities whose statutory duty is to deport me, and who will at once do so if they learn the true facts about me.’

Judges:

Briggs ACJ

Citations:

[1962] (3) SA 930

Jurisdiction:

Commonwealth

Cited by:

Not persuasiveJablonowski v Jablonowski 1972
(Ontario High Court) The petitioner had met both the residence and animus requirements despite having entered Canada illegally. . .
CitedMark v Mark HL 30-Jun-2005
The petitioner sought to divorce her husband. Both were Nigerian nationals, and had married under a valid polygamous marriage in Nigeria. She claimed that the courts had jurisdiction because of her habitual residence here despite the fact that her . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 07 December 2022; Ref: scu.228190

369413 Alberta Ltd v Pocklington: 21 Nov 2000

(Court of Appeal of Alberta) The court set out a number of propositions as to the intention required for inducing a breach of contract. These included inferred intention and recklessness. The Court of Appeal held as follows: ‘In order to find liability [for inference with contractual relations], a plaintiff must demonstrate that the defendant had an ‘intent’ to induce the breach of contract. The intent component of the tort is the most difficult to understand. Malicious motive, unlawful conduct, hatred or intention to harm are not required elements of intent: Allen v Flood, [1898] AC 1 9H.L.(E,));Parks West Mall Ltd v Jennett (1996), 36 Alta.L.R. (3d) 44 (C.A.) at 49; and Atcheson v College of Physicians and Surgeons (Alberta), [1994] 6 W.W.R. 239 (Alta.Q.B) at 246. However, what is required is less clear. The requisite intent has been described with ‘loose, vague and conflicting statements’ that sometime appear to be irreconcilable: Ed Miller Sales, supra, at 230.

Originally, the tort required the breach to be the result of wilful, deliberate and direct conduct which the defendant knew or hoped would result in a violation of the plaintiff’s contractual rights. See for example, Lumley v Gye (1853), 118 E.R. 749, 2 El. and B1.216 (Q.B); and Quinn v Leathem, [1901] A.C.495 (H.L.(I.)).

However, courts soon recognized that intent can also be inferred when the consequences of the conduct were a necessary or reasonable foreseeable result, because ‘people are presumed to intend the reasonable consequences of their acts’: South Wales Miners’ Federation v Glamorgan Coal Company, [1905]A.C.239 (H.L.(E.)) at 244. In Posluns v Toronto Stock Exchange and Gardiner (1965), 46 D.L.R. (2d) 210 (Ont. H.C) at 267; affirmed (1966), 53 D.L.R (2d) 193 (C.A.); affirmed [1968] S.C.R. 330, 67 D.L.R. (2d) 165, the court held that liability would attach if the defendant’s conduct resulted in the breach of a contract ‘of which it was or ought to have been aware’. The intention to bring about a breach of contract need not be the primary object; it is sufficient if the interference is necessarily incidental to attaining the defendant’s primary objective: Fraser v Board of Trustees of Central United Church (1983), 38 O.R. (2d) 97 (H.C.J.) at 103′ and Bank of Nova Scotia v Gaudreau (1985), 48 O.R. (2d) 478 (H.C.J.). [41] Intention can also be established when the defendant was reckless or wilfully blind to a breach. The defendant need not have actually known the precise terms of the contract or that his object only could be accomplished through breach of the contract. ‘If – turning a blind eye – he went about it regardless of whether it would involve a breach, he will be treated just as if he had knowingly procured it’: J.G. Fleming, The Law of Torts, 8th Ed. (Sydney: law Book Co., 1992) at 694.

Turning a blind eye may include situations in which the defendant failed to seek advice or employ the means available to obtain the necessary knowledge. For example, in Royal Bank of Canada v Wilton (1995), 165 A.R. 261, D.L.R. (4th) 266 (C.A.), the defendant was uncertain about the enforceability of a contract, had the ‘means of knowledge’ to determine if a legitimate contract existed, but made no efforts to seek advice. This court found the defendant liable because he deliberately chose not to acquire the information, but proceeded on the basis that the contract was unenforceable. Similarly, when there are competing legal interpretations and the defendant adopts an interpretation which will interfere with the plaintiff’s rights, the defendant ‘must at least show that he was advised and honestly believed that he was legally entitled to take that course’: Swiss Bank v Lloyds Bank, [1979] Ch.548 at 580 (CH.D.); reversed on other grounds [1982] A.C. 584 (C.A.); affirmed [1982] A.C. 604 (H.L.(E)).
If the defendant acted under a bona fide belief that contractual rights would not be infringed, liability will not be found even though the belief turned out to be mistaken. But for a mistaken belief to be bona fide, rather than the result of recklessness or wilful blindness, some basis for the belief must exist, and some reasonable effort must have been made by the defendant to learn the truth. In British Industrial Plastics Ltd. v Ferguson, [1940] 1 All E.R. 479 (H.L.(E.)), the defendants who had made the effort to seek advice were not found liable even though their belief was described as ‘illogical’. In Z-Mark International Inc. v Leng Novak Inc. (1996), 12 O.T.C. 33 (Gen. Div.), appeal dismissed (1999), 122 O.A.C. 341, a defendant made inquiries and obtained assurances and a warranty. The court found that the defendant had no reason to doubt the assurance or the warranty and therefore the defendant was not knowingly or recklessly indifferent to a breach of contract.

In some cases a distinction is drawn between direct interference, for which the breach must be foreseeable or reasonable consequence of the conduct, and indirect interference, for which the breach must be necessary or substantially certain consequence. See, for example, L.N. Klar, Tort Law, 2nd ed. (Scarborough: Carswell, 1996) at 498 and 507; Fleming, supra, at 694; D.C. Thomson and Co. Ltd. V Deakin ,[1952] Ch. 646 (C.A.); Bank of Nova Scotia, supra; Garry v Sherritt Gordon Mines Ltd., [1988] 1 W.W.R. 289, 45 D.L.R. (4d) 22 (Sask. C.A.); and Atcheson, supra.

[45] As this case involves direct interference, this distinction does not arise. Pocklington, as the director of Gainers, executed the documents to complete the transfer of the 350151 shares to his own company. The transfer caused Gainers to breach s. 12.03(1) of the Master Agreement, which prohibited dispositions of assets without Alberta’s consent. Therefore, if the breach was a reasonable or foreseeable consequence of that transfer, or alternatively, if Pocklington completed the transfer recklessly, was wilfully blind to its consequences, or was indifferent as to whether or not it caused a breach, the necessary intent element for the tort will be met.’

Citations:

(2001) 194 DLR (4th) 109

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedMainstream Properties Ltd v Young and others CA 13-Jul-2005
The claimant appealed refusal of his claim for inducing a breach of contract against the sixth defendant. It said that an intention to disturb a contract could be inferred.
Held: A mere recklessness as to whether contractual rights were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Torts – Other

Updated: 07 December 2022; Ref: scu.229818

Munnings v Hydro-Electric Commission: 1971

Citations:

(1971) 45 ALJR 378

Jurisdiction:

England and Wales

Cited by:

CitedBritish 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 . .
CitedBritish 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.

Commonwealth

Updated: 07 December 2022; Ref: scu.183274

Reid v Smith: 8 Dec 1905

(High Court of Australia) The Supreme Court of Queensland had held that the house remained a chattel. ‘The short point raised in this case is whether an ordinary dwelling-house, erected upon an ordinary town allotment in a large town, but not fastened to the soil, remains a chattel or becomes part of the freehold.’
Held: The High Court reversed the decision, treating the answer as being almost a matter of common sense. The house was made of wood, and rested by its own weight on brick piers. The house was not attached to the brick piers in any way. It was separated by iron plates placed on top of the piers, in order to prevent an invasion of white ants.
O’Connor J: ‘It would I think be stretching the rules of the common law to a point at which they cease to be rules of common sense, if it were to be laid down as a general rule that, except in very exceptional cases, wooden houses, resting by their own weight on land, could ever be regarded as mere chattels, removable at the will of the owner of the timber of which they are built.’
Griffith CJ: ‘I differ from the learned judge in thinking that it is not sufficient to show that the thing in question is a dwelling-house — an ordinary dwelling-house, on a town allotment, in an inhabited town. In the case of a similar building in another part of the country, erected under entirely different circumstances, a different conclusion might be drawn.’

Judges:

Griffiths CJ, O’Connor J

Citations:

[1905] 3 CLR 656, [1905] HCA 54, 12 ALR 126

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedElitestone Ltd v Morris and Another HL 1-May-1997
The plaintiff acquired land on which 27 chalets were erected. They served notice to quit so that the site could be developed. The defendants argued that they had residential tenancies with protection under the Rent Act 1977.
Held: The tenants’ . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 06 December 2022; Ref: scu.240413

Attorney-General for Ontario v Attorney-General for Canada: PC 1947

Abolition of civil appeals from Canada. The Board, in referring to the Canadian Constitution said of the 1867 Act that: ‘To such an organic statute, the Canadian Constitution the flexible interpretation must be given that changing circumstances require.’

Judges:

Viscount Jowitt

Citations:

[1947] AC 127

Statutes:

Statute of Westminster 1931 2 83, British North America Act 1867 91

Jurisdiction:

Canada

Cited by:

CitedDavid Grant v Director of Correctional Services and Another; The Director of Public Prosecutions PC 14-Jun-2004
(Jamaica) The defendant had pleaded guilty to drugs offences in the US, and had fled to Jamaica. He appealed against a refusal of Habeas Corpus having been arrested and held for extradition. The Board considered its jurisdiction to hear such an . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 December 2022; Ref: scu.242115

Attorney General for Alberta v Attorney General for Canada: PC 1947

The Board considered the severability of statutory provisions viewed for constitutionality: ‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as it has sometimes been put, whether on a fair review of the whole matter it can be assumed that the legislature would have enacted what survives without enacting the part that is ultra vires at all.’

Judges:

Viscount Simon

Citations:

[1947] AC 503, [1947] LJR 1392

Jurisdiction:

Canada

Cited by:

CitedHinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
CitedIndependent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 05 December 2022; Ref: scu.211407

Total Mauritius Ltd v Abdurrahman: PC 11 Nov 2015

Mauritius – The company appealed against an award of punitive damages as a severance allowance on the termination of the respondent’s employment. He was said to have competed with his employers business whilst employed by them. Gheld: The court discussed the distinction between ‘faute serieuse’ and ‘faute grave’ under Mauritian law.

Judges:

Lady Hale, Lord Wilson, Lord Hughes

Citations:

[2015] UKPC 45

Links:

Bailii

Jurisdiction:

England and Wales

Commonwealth, Employment, Damages

Updated: 04 December 2022; Ref: scu.554670

News Media Ownership v Finlay: 1970

(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of personal profit in making statements in the House. North P said: ‘Mr McKay was right when he submitted that while violence of language is not in itself enough to take away privilege even though it may provide evidence of malice, yet privilege is lost if the reply becomes a counter attack raising allegations against the plaintiff which are unrelated or insufficiently related to the attack he made on the defendant. In other words he cannot claim the protection of privilege if he decides to bring fresh accusations against his adversary.’ and, as to a contention that the words complained of were not defamatory:
‘In my opinion, there is no substance in this contention, for surely it is plain enough that it is harmful to the trading reputation of a newspaper company to allege that it conducts its business without regard for the public interest, its principal concern being merely with the making of profits.’

Judges:

North P

Citations:

[1970] NZLR 1089

Jurisdiction:

England and Wales

Cited by:

CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth, Media, Defamation

Updated: 04 December 2022; Ref: scu.409976

Hewitt v Court: 15 Mar 1983

Austlii (High Court of Australia) Lien – Equitable – Contract for provision of work, labour and materials – Progress payments – Whether lien obtained over unfinished object – Whether dependent upon right to specific enforcement of contract.
Contract – Character – Work, labour and materials or sale of goods.
Bankruptcy – Preference – Contract for prefabrication of house – Risk with builder until practical completion – Property not to pass until full payment of price – Progress payments – Builder placed in liquidation before completion – Prior agreement for purchaser to pay for work done after last progress payment and take unfinished house – Whether preference – Companies Act 1961 (W.A.), section 293 – Bankruptcy Act 1966 (Cth), s. 122.

Citations:

(1983) 149 CLR 639, [1983] HCA 7

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedChattey and Another v Farndale Holdings Inc and others CA 11-Oct-1996
The plaintiffs had paid deposits for apartments which were to be built. After the developer became insolvent the plaintiffs sought recovery of the deposits, saying they had a lien which preceded the claims of chargees.
Held: The one appeal . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract, Insolvency

Updated: 04 December 2022; Ref: scu.259719

Williams v The Queen: PC 25 Apr 2006

PC Jamaica – the appellant had been twelve when convicted on his own confession of murder. He said that the statement after oppression. The statement had been challenged but admitted without following the necessary procedure.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 21

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedMitchell v The Queen PC 24-Jan-1998
(Bahamas) The judge’s decision on a voire dire to determine the admissibility of a confession should not be revealed to the jury since it might cause unfair prejudice to the defendant by conveying the impression that the judge had reached a . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 01 December 2022; Ref: scu.241471

Ha and Another v State of New South Wales and Others: 17 Feb 1997

(High Court of Australia) The court unanimously considered that ‘it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law’. This would especially be so where ‘non-compliance with a properly impugned statute exposes a person to criminal prosecution’. ‘This Court has no power to overrule cases prospectively. A hallmark of the judicial process has long been the making of binding decisions of rights and obligations arising from the operation of the law upon past events or conduct. The adjudication of existing rights and obligations as distinct from the creation of rights and obligations distinguishes the judicial power from non-judicial power. Prospective overruling is thus inconsistent with judicial power on the simple ground that the new regime that would be ushered in when the overruling took effect would alter existing rights and obligations. If an earlier case is erroneous and it is necessary to overrule it, it would be a perversion of judicial power to maintain in force that which is acknowledged not to be the law.’

Citations:

(1997) 189 CLR 465, [1997] HCATrans 82

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedNational Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 01 December 2022; Ref: scu.228295

Kenneth L Kellar Carib West Limited v Stanley A Williams: PC 24 Jun 2004

(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as the degree of success in the case, and the respondent argued that this showed the existence of a conditional fee element.
Held: The letter relied upon did not establish what was suggested, and nor could the fact that the remuneration rate had not been formally agreed in advance. It was not unlawful as a conditional fee arrangement. The case was remitted for taxation to proceed.
The Privy Council expressed the view that ‘it may now be time to reconsider the accepted prohibition in the light of modern practising conditions.’

Judges:

Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote, Lord Carswell, Dame Sian Elias

Citations:

[2004] UKPC 30, [2005] 4 Costs LR 559, (2004) 148 SJLB 821

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Citing:

CitedWay v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
CitedThai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
CitedHazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
See alsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedGeraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .

Cited by:

See AlsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedSibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
CitedPatel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Costs

Updated: 01 December 2022; Ref: scu.198381

Williams v The Queen: PC 23 Nov 1998

(Saint Vincent and the Grenadines) The defendant was convicted of having killed his wife. He had killed his children but faced no charge on that issue. He complained of the admission of evidence showing that he had killed the children. In his evidence he said his wife had killed them. His defence was of diminished responsibility, but the judge withdrew that defence from the jury, leaving only provocation.
Held: The expert medical evidence obtained since the trial was of sufficient standard to be apparently credible, and the matter was remitted for it to be considered. It had not been wrong to charge only one capital murder.

Judges:

Lord Browne-Wilkinson, Lord Steyn, Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett

Citations:

[1998] UKPC 45

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedRegina v Thornton (SE) (No 2) CACD 6-Jun-1996
Battered woman syndrome may be part of provocation if it causes a loss of control. The history of the relationship between the appellant and the deceased could properly be taken into account in deciding whether the final provocation was enough to . .
CitedLadd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
CitedRegina v Thornton (Sara) CACD 13-Dec-1995
Battered women’s syndrome may be a relevant characteristic in a murder trial to be taken account of when judging context of provocation. . .
CitedCulmer v The Queen PC 29-Jul-1997
(Bahamas) Section 325 prevailed as the leading provision in the Code relating to the defence of provocation in The Bahamas. . .
CitedLogan v The Queen PC 8-Mar-1996
(Belize) The Privy Council may hear an appeal against the death sentence after a mercy plea had been rejected under the Belize criminal Code. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 01 December 2022; Ref: scu.159326

Kellar v Williams: PC 7 Feb 2000

PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Held: The appeal was dismissed: ‘If the shareholders of a company agree to increase its capital without a formal allocation of shares that capital will become like share premium part of the owner’s equity and there is nothing in the company law of the Turks and Caicos Islands or in the company law of England on which that law is based to render their agreement ineffective. ‘

Judges:

Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Goff of Chieveley, Lord Hutton, Lord Millett

Citations:

[2000] 2 BCLC 390, [2000] UKPC 4, Appeal No 42 of 1998, [2000] 2 BCLC 390

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

See AlsoKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .

Cited by:

See alsoKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
AppliedOyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 01 December 2022; Ref: scu.174641

Commissioner for Railways (NSW ) v Cardy: 1960

Citations:

[1961] ALR 16, [1960] HCA 45, (1960) 104 CLR 274

Jurisdiction:

Australia

Cited by:

CitedBritish 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.

Commonwealth

Updated: 01 December 2022; Ref: scu.182869

Attorney General v Danhai Williams and others: PC 12 May 1997

(Jamaica) Customs investigating officers on attended the appellant’s premises in the course of an investigation of fraudulent importation. The officers were met by a hostile crowd, and the claimant did not attend for interview as invited. A search warrant was obtained and executed. The claimants said the warrant was unconstitutional and unlawful and sought return of documents taken. They said that the court had acted on the basis that the justice issuing the warrant could rely on the officer being satisfied of the matters alleged without making his own judgement.
Held: An officer making an application owed a duty of openness. His disclosures to the magistrate were in confidence, though there were matters which a justice need not be made aware of.
‘Their Lordships do not underestimate the difficulty and delicacy of the task which is put upon Justices and other judicial officers to whom application is made for search warrants. The applicant is generally a police or other law enforcement officer who knows far more than the Justice about the investigation. The application is made ex parte; there is naturally a predisposition upon the part of the Justice to be helpful to the officer who is present and assures him that a search is necessary. The officer may be known to the Justice, who may have learnt to trust his judgment and veracity. Their Lordships do not suggest that this is something which should be ignored. On the other hand, the citizen whose rights the Justice is constitutionally required to protect is absent and seldom depicted in the most favourable light. Nevertheless, if the constitutional safeguards are to have any meaning, it is essential for the Justice conscientiously to ask himself whether on the information given to him upon oath (in the case of section 203, either orally or in writing) he is satisfied that the officer’s suspicion is based upon reasonable cause.’
‘Although the courts may sometimes feel frustrated by their inability to go behind the curtain of the recital that the justice was duly satisfied and to examine the substance of whether reasonable grounds for suspicion existed (a frustration articulated by Lord Scarman in R v Inland Revenue Comrs, Ex p Rossminster Ltd [1980] AC 952, 1022) their Lordships think that it would be wrong to try to compensate by creating formal requirements for the validity of a warrant which the statute itself does not impose. In so doing, there is a risk of having the worst of both worlds: the intention of the legislature to promote the investigation of crime may be frustrated on technical and arbitrary grounds, while the courts, in cases in which the outward formalities have been observed, remain incapable of protecting the substance of the individual right conferred by the Constitution.’

Judges:

Lord Lloyd of Berwick, Lord Hoffmann, Lord Hope of Craighead, Lord Clyde, Lord Hutton

Citations:

[1997] UKPC 22, [1997] 3 WLR 389, [1998] AC 351

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

CitedEntick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
CitedRegina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .

Cited by:

CitedGibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
CitedHaralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Magistrates

Updated: 01 December 2022; Ref: scu.159232

Bow Valley Husky (Bermuda) Ltd v Saint John Shipbuilding Ltd: 1997

(Supreme Court of Canada) Saint John Shipbuilding Limited (SJSL) constructed an oil rig for Bow Valley Husky (Bermuda) Limited (BVHB) which was to conduct drilling operations off the east coast of Canada. A heat trace system was required in order to prepare the rig for winter operations. The purpose of a heat trace system was to prevent the rig’s pipes or ‘mud lines’ from freezing. The heat trace system which was installed was supplied by Raychem Canada Limited and Raychem Corporation (Raychem). This system was chosen after consultation with Raychem representatives because it had a self-regulating heater. Raychem’s heat trace system used Thermaclad wrap to keep moisture from the insulation and heat trace wire. The specification for the Raychem heat trace system required the installation of a ground fault circuit breaker system, the purpose of which was to cut off the power in the event of an electrical fault, to prevent arcing of the heat trace wire. The ground fault circuit breaker system initially installed by SJSL was unsuitable, and a functioning system was not installed on the rig until after the incident which formed the basis of the case. During the drilling of an exploratory well a fire broke out on the oil rig, causing damage to cables.
In a subsequent litigation, the trial judge held inter alia that SJSL was liable in tort for breach of duty to warn of the inflammability of Thermaclad. He also held that the defendant Raychem was liable in tort for breach of its duty to warn. When the case reached the Supreme Court of Canada, it was held by a majority that SJSL’s appeal with regard to the duty to warn should be allowed. The majority of the court held that BVHB was not entitled to claim against SJSL on the basis of the tort duty to warn, by reason of provisions of the contract between them. The majority did not however disagree with what was said by the minority of the court about the duty to warn.
The opinion of the minority was delivered by McLachlin J., who said at: ‘SJSL argues that in order for a duty to warn to arise, there must be an ‘informational imbalance’ between the manufacturer or supplier and the party who is owed the warning. SJSL submits that the plaintiff BVHB knew as much about the inflammability of the Thermaclad as it did.
The law may be simply stated. Manufacturers and suppliers are required to warn all those who may reasonably be affected by potentially dangerous products: Lambert v Lastoplex Chemicals Co [1972] S.C.R. 569, and Hollis v Dow Corning Corp. [1995] 4 S.C.R. 634. This duty extends even to those persons who are not party to the contract of sale: Rivtow Marine Ltd v Washington Iron Works [1974] S.C.R. 1189. The potential user must be reasonably foreseeable to the manufacturer or supplier – manufacturers and suppliers (including a builder-supplier like SJSL) do not have the duty to warn the entire world about every danger that can result from improper use of their product.
The plaintiff BVHB was clearly within the class of persons that SJSL and Raychem ought to have known might reasonably be affected by the use of Thermaclad. SJSL was in a contractual relationship with BVHB, and Raychem had directly approached BVHB’s predecessor […] to encourage the use of its products in the construction of the rig.
The defendant SJSL submits that there is an additional requirement for a duty to warn: a knowledge imbalance between the manufacturer or supplier and the consumer. It goes on to argue that since BVHB knew about the inflammability of Thermaclad no duty to warn arose. The Court of Appeal held that knowledge may be a defence, but only where the plaintiff can be viewed as accepting the risk (volenti non fit iniuria).
I agree with the Court of Appeal that knowledge that there may be a risk in some circumstances does not negate a duty to warn. Liability for failure to warn is based not merely on a knowledge imbalance. If that were so every person with knowledge would be under a duty to warn. It is based primarily on the manufacture or supply of products intended for the use of others and the reliance that consumers reasonably place on the manufacturer and supplier. Unless the consumer’s knowledge negates reasonable reliance, the manufacturer or supplier remains liable. This occurs where the consumer has so much knowledge that a reasonable person would conclude that the consumer fully appreciated and willingly assumed the risk posed by use of the product, making the maxim volenti non fit iniuria applicable: Lambert, supra.
The evidence establishes that the plaintiff BVHB knew that Thermaclad would burn under some circumstances. The defendants SJSL and Raychem, however, had much more detailed knowledge of the specific inflammability characteristics of the Thermaclad. Raychem gained this knowledge through its own testing as manufacturer. SJSL gained it through its request to Raychem for information on Thermaclad’s inflammability. BVHB did not have the degree of knowledge necessary to negate reliance on SJSL and Raychem. SJSL and Raychem did not demonstrate that BVHB accepted the risk of using Thermaclad. It follows that both SJSL and Raychem owed BVHB a duty to warn […].’

Judges:

McLachlin J (minority)

Citations:

[1997] 3 SCR 1210

Jurisdiction:

Canada

Cited by:

CitedMcTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence

Updated: 30 November 2022; Ref: scu.226221

Benjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla: PC 14 Feb 2001

PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this interfered with their constitutioinal and human rights to freedom of thought, freedom of expression and freedom from discrimination.
Held: The motive in closing the programme was relevant in deciding whether there was a contravention of section 11. It wanted to stop criticism of the state lottery. Mr Benjamin had no primary right to broadcast. But he did have a right not to have his access to the medium denied on politically discriminatory grounds. There had been a contravention of his rights to freedom of speech and expression protected by section 11 of the Constitution.

Judges:

Lord Slynn of Hadley, Lord Nicholls of Birkenhead, Lord Nolan, Lord Cooke of Thorndon, Lord Clyde

Citations:

[2001] 1 WLR 1040, [2001] UKPC 8

Links:

Bailii, PC, PC

Statutes:

Constitution of Anguilla 1 8 10 11 13

Jurisdiction:

England and Wales

Citing:

CitedThe Attorney General v Payne 1982
. .
CitedRegina v Greater London Council ex Parte Blackburn 1976
The making of an order of prohibition was postponed to allow the defendant Council to take certain action. . .
CitedMinister of Home Affairs v Fisher PC 1979
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
CitedAttorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
CitedLingens v Austria ECHR 8-Jul-1986
Freedom of expression, as secured in paragraph 1 of Article 10, constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. Subject to paragraph 2, . .
CitedOberschlick v Austria ECHR 23-May-1991
A journalist was convicted by a court which regarded itself as bound by the opinion of the court of appeal which had remitted his case to the lower court for trial after it had been dismissed by that court. The judge who presided over the court of . .
CitedInformationsverein Lentia Etal v Austria ECHR 1-Dec-1993
A prohibition on the setting up and operating of a broadcasting station is capable of being violation.
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Not necessary to examine Art. . .
CitedHandyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
CitedRangarajan v Jagjivan Ram 30-Mar-1989
(Supreme Court of India) Democracy is a government by the people via open discussion. The democratic form of government itself demands of its citizens an active and intelligent participation in the affairs of the community. The public discussion . .
CitedFernando v Sri Lanka Broadcasting Corporation 1996
(Sri Lanka) Broadcasts were planned including discussion by experts and listeners. Mr Fernando had participated in these discussions. After criticisms of the government the service came to an end and the broadcasts included little listener . .
CitedCable and Wireless (Dominica) Limited v Marpin Telecoms and Broadcasting Company Limited PC 30-Oct-2000
(Dominica) The importance of telecommunications in today’s society meant that it would be an infringement of the right of freedom of expression guaranteed under the constitution to grant a monopoly right to provide such services within a nation. . .
CitedOlivier v Buttigieg PC 1967
(Malta) Following the condemnation by the Archbishop of Malta of a weekly newspaper the ‘Voice of Malta’, the entry into hospitals and branches of his department of newspapers condemned by the church authorities was ‘strictly forbidden’.
Held: . .

Cited by:

CitedRegina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
CitedGeorge Worme Grenada Today Limited v The Commissioner of Police PC 29-Jan-2004
PC (Grenada) The defendant was editor of a newspaper which carried a story severely defamatory of the prime minister. He was convicted of criminal libel, and appealed.
Held: The appeal was dismissed. The . .
CitedObserver Publications Limited v Campbell ‘Mickey’ Matthew The Commissioner of Police and The Attorney General PC 19-Mar-2001
PC (Antigua and Barbuda) The claimant complained of the delay by the respondents in processing their request for a licence to run a radio station. It appealed refusal of constitutional redress and thta its right . .
Lists of cited by and citing cases may be incomplete.

Media, Constitutional, Human Rights

Updated: 30 November 2022; Ref: scu.163276

Regina v Salisbury: 9 Oct 1972

Australia – Victoria The court considered the nature of the act required to found an allegation of assault: ‘It may be that the somewhat different wording of section 20 of the English Act has played a part in bringing about the existence of the two lines of authority in England, but, be that as it may, we have come to the conclusion that, although the word ‘inflicts’ . . does not have as wide a meaning as the word ’causes’ . . the word ‘inflicts’ does have a wider meaning than it would have if it were construed so that inflicting grievous bodily harm always involved assaulting the victim. In our opinion, grievous bodily harm may be inflicted . . either where the accused has directly and violently ‘inflicted’ it by assaulting the victim, or where the accused has ‘inflicted’ it by doing something, intentionally, which, though it is not itself a direct application of force to the body of the victim, does directly result in force being applied violently to the body of the victim, so that he suffers grievous bodily harm. Hence, the lesser misdemeanours of assault occasioning actual bodily harm and common assault . . are not necessarily included in the misdemeanour of inflicting grievous bodily harm . .’

Judges:

Young CJ, Nelson, Harris JJ

Citations:

[1976] VR 452, [1976] VicRp 45

Jurisdiction:

Australia

Cited by:

CitedHaystead v Director of Public Prosecutions QBD 2-Jun-2000
The defendant had hit a mother in the face as she held the child. The force was sufficient to cause her to drop the child causing injury to the child. He appealed against a conviction for beating the child.
Held: The appeal failed. A battery . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 30 November 2022; Ref: scu.547668

Sunshine Porcelain Potteries Proprietary Limited v Nash: PC 17 Jul 1961

(From the High Court of Australia) There is a presumption that a statute was intended to operate prospectively and not retrospectively.
Lord Reid said: ‘Generally, there is a strong presumption that a legislature does not intend to impose a new liability in respect of something that has already happened, because generally it would not be reasonable for a legislature to do that . . But this presumption may be overcome not only by express words in the Act but also by circumstances sufficiently strong to displace it.’

Judges:

Viscount Simonds, Lord Reid, Lord Radcliffe, Lord Tucker, Lord Hodson

Citations:

[1961] UKPC 34, [1961] AC 927, [1961] 3 WLR 727, [1961] 3 All ER 203

Links:

Bailii

Jurisdiction:

Australia

Cited by:

CitedBarlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 27 November 2022; Ref: scu.445327

Bols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd: PC 11 Oct 2006

(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English court had jurisdiction by virtue of the clear agreement of the parties. That parts of the agreement had been in place before the written contract was executed did not override what was an enforceable choice of jurisdiction.

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2005] UKPC 45, [2007] 1 WLR 12, [2007] 1 All ER (Comm) 461, [2007] 1 LLR 683, [2007] 1 Lloyd’s Rep 683

Links:

Bailii

Statutes:

Council Regulation (EC) 44/2001 2(1) 23(1)

Jurisdiction:

England and Wales

Citing:

CitedEstasis Salotti Di Colzani Aimo Et Gianmario Colzani v Ruewa Polstereimaschinen Gmbh ECJ 14-Dec-1976
ECJ The way in which article 17 of the Convention of 27 September 1968 is to be applied must be interpreted in the light of the effect of the conferment of jurisdiction by consent, which is to exclude both the . .
CitedPartenreederei Ms Tilly Russ and Ernest Russ v NV Haven- and Vervoerbedrijf Nova and NV Goeminne Hout ECJ 19-Jun-1984
Europa Convention on jurisdiction and the enforcement of judgments – jurisdiction agreement – jurisdiction clause in a bill of lading – validity – conditions (convention of 27 September 1968, art. 17)
a . .
CitedVitkovice Horni a Hutni Tezirstvo v Korner HL 1951
The ordinary principles of international comity were invaded when courts permitted service out of jurisdiction and that the courts should therefore approach with circumspection any application for leave to serve a foreigner out of the jurisdiction. . .
CitedAttock Cement Co v Romanian Bank for Foreign Trade CA 1989
Where the parties to a contract have agreed to an English forum it would require strong grounds for one of the parties to resist the exercise of jurisdiction by the English court: ‘We should also look with favour on a choice of our own jurisdiction, . .
CitedSeaconsar Far East Ltd v Bank Markazi Jomhouri Islami Iran HL 15-Oct-1993
A plaintiff must show that there is a ‘serious issue for trial’ to support and justify an application for overseas service. The standard of proof in respect of the cause of action relied on is whether, on the evidence, there was a serious question . .
CitedShevill, Ixora Trading Inc., Chequepoint SARL and Chequepoint International Ltd v Presse Alliance SA ECJ 7-Mar-1995
On a proper construction of the expression ‘place where the harmful event occurred’ in Article 5(3) of the Convention of 27 September 1968 on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters as amended by the Convention . .
CitedCanada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
CitedHandelsveem Bv and Others v Coreck Maritime GmbH ECJ 1-Dec-2000
When a court looked at a choice of the jurisdiction clause, it was not necessary that the clause should withoutmore establish the jurisdiction. A clause could be effective where the forum will be ascertainable at the time by reference to a the . .
ApprovedCanada Trust Company and others v Stolzenberg and others (2) CA 29-Oct-1997
The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must . .
CitedF Berghoefer GmbH and Co KG v ASA SA ECJ 11-Jul-1985
Brussels Convention – Interpretation of Article 17 – Validity of an oral jurisdiction agreement confirmed in writing by one party only.
‘It must be pointed out that . . article 17 of the Convention does not expressly require that the written . .

Cited by:

CitedVarsani v Relfo Ltd CA 27-May-2010
The defendant appealed against refusal of a declaration that the court had no jurisdiction to hear the claim. He said that he lived in Kenya, and the claimant had failed first to apply for leave to serve out of the jurisdiction. The claimant had . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, European

Updated: 27 November 2022; Ref: scu.245388

Turner v Walsh: PC 1881

(From Supreme Court of New South Wales) The appellant owned land in New South Wales, acquired from the Crown in 1879, over which there was a track. The respondent was sued for trespass when he went upon the track and removed fences running across it installed by the appellant. The respondent argued that he had a right to do so because the track had in fact become a highway by long usage and so there was a right to pass and repass without obstacle. The appellant said that there was no such long usage and in addition, said that by reason of the New South Wales Crown Lands Alienation Act 1861, the Crown had lost the legal power to dedicate highways save under certain conditions, and thus there could be no presumed dedication. The court below directed the jury that it could find that there was presumed dedication by reason of the period of user beginning prior to the commencement of that Act as well as subsequent to it.
Held: The Privy Council agreed. A public right of way arises by reason of a dedication deemed to have been made at the commencement of the 20 year user.
Once a Path has achieved the status of highway by long usage, the Path is to be regarded as having been dedicated as such at the time of its construction.
The Board observed as to the approach to the evidence of dedication: ‘Would not the inchoate right run on to maturity rather than be blocked by the intermediate passing of this Act? This language does not accurately express the presumption which arises from long-continued user. It is not correct to say that the early user establishes an inchoate right capable of being subsequently matured. If the right had been inchoate only in 1861, the argument of the Appellant that it could not have been matured or acquired after 1861, except in the mode prescribed by the Act, would have had great force. The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses.’
and: ‘The proper way of regarding these cases is to look at the whole of the evidence together, to see whether there has been such a continuous and connected user as is sufficient to raise the presumption of dedication; and the presumption, if it can be made, then is of a complete dedication, coeval with the early user. You refer the whole of the user to a lawful origin rather than to a series of trespasses. It may be that in this case the evidence of user prior to 1861 was alone sufficient to establish the presumption of dedication; but the strength of that presumption is increased by the subsequent user, and would certainly have been much diminished if the user had been discontinued after 1861. In this case their Lordships have no doubt that, the user being continuous, the direction is right, and if the direction is right, it is not contended that the verdict is wrong.’

Judges:

Sir Barnes Peacock, Sir Montague E Smith, Sir Richard Couch, Sir ohn Mellor

Citations:

(1881) 6 App Cas 636, [1881] UKPC 20

Links:

Bailii

Jurisdiction:

Australia

Cited by:

CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedBarlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
CitedBarlow v Wigan Council QBD 19-Jun-2019
Responsibility for personal injury after trip over a tree root on a path in a park owned and maintained by the Council. The Court was now asked whether the public footpath was a highway under the 1980 Act for which the council was responsible for . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 27 November 2022; Ref: scu.192185

Royal Brunei Airlines SDN BHD v Tan: PC 24 May 1995

(Brunei) The defendants were a one-man company, BLT, and the one man, Mr Tan. A dishonest third party to a breach of trust was liable to make good a resulting loss even though he had received no trust property. The test of knowledge was an objective one: ”knowingly’ was better avoided as a defining ingredient of the liability, and that in that context the Baden categorisation was best forgotten. Although my own view is that the categorisation is often helpful in identifying different states of knowledge which may or may not result in a finding of dishonesty for the purposes of knowing assistance, I have grave doubts about its utility in cases of knowing receipt.’ and ‘Recipient liability is restitution-based; accessory liability is not’.
Lord Nicholls summarised the ingredients of liability for dishonest assistance: ‘Drawing the threads together, their Lordships’ overall conclusion is that dishonesty is a necessary ingredient of accessory liability. It is also a sufficient ingredient. A liability in equity to make good resulting loss attaches to a person who dishonestly procures or assists in a breach of trust or fiduciary obligation. It is not necessary that, in addition, the trustee or fiduciary was acting dishonestly, although this will usually be so where the third party who is assisting him is acting dishonestly. ‘Knowingly’ is better avoided as a defining ingredient of the principle, and in the context of this principle the Baden scale of knowledge is best forgotten.’

Judges:

Lord Nicholls of Birkenhead, Lord Nicholls

Citations:

Independent 22-Jun-1995, [1995] 2 AC 378, [1995] UKPC 4, [1995] 3 All ER 97, [1995] UKPC 22

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

CitedBelmont Finance Corporation Ltd v Williams Furniture Ltd (No 2) 1980
It had been alleged that there had been a conspiracy involving the company giving unlawful financial assistance for the purchase of its own shares.
Held: Dishonesty is not a necessary ingredient of liability in an allegation of a ‘knowing . .
CitedIn re Montagu’s Settlement Trusts 1987
In the context of knowing receipt, a categorisation of knowledge is used to determine whether a person is bound by notice.
Sir Robert Megarry V-C said: ‘The cold calculus of constructive and imputed notice does not seem to me to be an . .
CitedBarnes v Addy 12-Feb-1874
A stranger to a trust can be liable in equity for assisting in a breach of trust, even though he received no trust property.
Lord Selborne said: ‘Now in this case we have to deal with certain persons who are trustees, and with certain other . .

Cited by:

CitedTwinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
CitedDubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
AppliedBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele ChD 1999
Chief Akindele agreed in 1985 with ICIC Overseas to invest US$10m in the purchase of 250,000 shares of BCCI Holdings, and to hold the shares for two years. If he wanted to sell the shares after the expiry of two years and up to five years from the . .
Disapproved in partBank of Credit and Commerce International (Overseas) Ltd and Another v Akindele CA 22-Jun-2000
The test of whether a person who received funds held them on constructive trust, was not whether he himself was dishonest, but rather whether he had knowledge of circumstances which made it unconscionable to hold on to the money received. In respect . .
CitedHarrison v Teton Valley Trading Co; Harrison’s Trade Mark Application (CHINAWHITE) CA 27-Jul-2004
The applicant had been an employee of the objector at their nightclub ‘Chinawhite’ and whose principal attraction was a cocktail of the same name. Employees signed a confidentiality agreement as to the recipe. Having left the employment, the . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedBarlow Clowes International Ltd and Another v Eurotrust International Ltd and others PC 10-Oct-2005
(Court of Appeal of the Isle of Man) Defendants appealed a finding of dishonest assistance in the activities of Barlow Clowes.
Held: The judge had been able to reach the conclusions on the basis of the evidence. The appeal of the deemster . .
CitedAbouRahmah and Another v Abacha and others QBD 28-Nov-2005
Claims were made as to an alleged fraud by some of the respondents. . .
CitedBritish Telecommunications Plc; Virgin Enterprises Ltd; J Sainsbury Plc; Marks and Spencer Plc and Ladbroke Group Plc v One In a Million Ltd and others CA 23-Jul-1998
Registration of a distinctive Internet domain name using registered trade marks and company names could be an infringement of a registered Trade Mark, and also passing off. It was proper to grant quia timet injunctions where necessary to stop . .
CitedCharter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
CitedCriterion Properties plc v Stratford UK Properties LLC and others HL 17-Jun-2004
The parties presented their claim before the House, but the House found that it was to be argued differently. The new arguments had not been pursued or prepared before the case came to the House, and it was remitted to the lower courts for the issue . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
CitedLaw Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .
CitedVestergaard Frandsen A/S and Others v Bestnet Europe Ltd and Others SC 22-May-2013
The claimant companies appealed against a reversal of their judgment against a former employee that she had misused their confidential trade secrets after leaving their employment. The companies manufactured and supplied bednets designed to prevent . .
CitedWilliams v Central Bank of Nigeria QBD 8-Apr-2011
The claimant had been defrauded by a customer of the defendant bank. He brought a claim against the bank, saying that they knew or ought to have known of the fraudster’s activities, and were liable. The Bank denied that the UK courts had . .
CitedWilliams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
ApprovedIvey v Genting Casinos (UK) Ltd (T/A Crockfords) SC 25-Oct-2017
The claimant gambler sought payment of his winnings. The casino said that he had operated a system called edge-sorting to achieve the winnings, and that this was a form of cheating so as to excuse their payment. The system exploited tiny variances . .
Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Updated: 27 November 2022; Ref: scu.88893

Attorney General of the Commonwealth of Australia v Adelaide Steamship Company: PC 1913

There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine of restraint of trade: ‘Monopolies and contracts in restraint of trade have this in common, that they both, if enforced, involve a derogation from the common law right in virtue of which any member of the community may exercise any trade or business he pleases and in such manner as he thinks best in his own interests.’
and ‘Contracts in restraint of trade were subject to somewhat different considerations. There is little doubt that the common law in the earlier stages of its growth treated all such contracts as contracts of imperfect obligation, if not void for all purposes; they were said to be against public policy in the sense that it was deemed impolitic to enforce them.’
and ‘It is only necessary to add that no contract was ever an offence at common law merely because it was in restraint of trade. The parties to such a contract, even if unenforceable, were always at liberty to act on it in the manner agreed. Similarly combinations, not amounting to contracts, in restraint of trade were never unlawful at common law. To make any such contract or combination unlawful it must amount to a criminal conspiracy, and the essence of a criminal conspiracy is a contract or combination to do something unlawful, or something lawful by unlawful means. The right of the individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others.’

Judges:

Lord Parker

Citations:

[1913] AC 781

Jurisdiction:

Australia

Citing:

CitedMogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .

Cited by:

CitedEsso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
Lists of cited by and citing cases may be incomplete.

Commercial

Leading Case

Updated: 27 November 2022; Ref: scu.259685

Robinson v The Canadian Pacific Railway: PC 25 Jul 1891

(Canada) Acceptance of appeal.

Citations:

[1891] UKPC 34

Links:

Bailii

Jurisdiction:

Canada

Cited by:

AdmissionRobinson v Canadian Pacific Railway Co PC 23-Jul-1892
When construing a statutory povision, it may be justifiable to turn back to the common law where it contains provisions of doubtful import, or uses language which had previously acquired a technical meaning, or on some other special ground. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 26 November 2022; Ref: scu.417745

The Canadian Pacific Railway Company v The King: PC 19 Feb 1931

(Canada) ‘Whether any and what restrictions exist on the power of a licensor to determine a revocable licence must, there Lordships think, depend upon the circumstances of each case.’
A licencee whose licence is revocable is entitled to reasonable notice of revocation. Lord Russell of Killowen said: ‘when the exercise of the rights conferred by the licence involves nothing beyond, there can be no reason to urge against the existence of a power to determine the licence brevi manu at the will of the licensor. But the exercise of the rights may have involved the licensee in obligations in other directions which the determination of the licence would disable him from fulfilling unless the licence were determined after a notice sufficient in point of time for the making of substituted arrangements. In such circumstances the licensee would in their Lordships’ opinion be entitled to breathing space sufficient for the purpose’.

Judges:

Lord Russell of Killowen

Citations:

[1931] UKPC 18, [1931] AC 414

Links:

Bailii

Jurisdiction:

Canada

Cited by:

ApprovedMinister of Health v Bellotti CA 1944
298 blocks of flats had been requisitioned to provide accommodation for persons evacuated from Gibraltar during the war. The evacuees occupied the various flats as licensees. They were given only one week’s notice terminating their licences.
CitedWhite v Blackmore CA 15-Jun-1972
The plaintiff attended a jalopy car race and was injured. It was a condition of his entry that he agreed that motor racing was dangerous and that he would not hold the organisers or others responsible if injured. He was injured when a safety rope, . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 26 November 2022; Ref: scu.421646

Re McCutcheon and City of Toronto: 1983

(Ontario High Court of Justice) The appellant had been given a parking ticket. She could pay a penalty, in which event there would be no further proceedings against her, but if she did not, she would be liable to conviction and payment of a fine. The appellant challenged the law on several grounds, including that it was inconsistent with her right to be presumed innocent under paragraph 11(d) of the Canadian Charter of Rights and Freedoms.
Held: Linden J rejected that submission: ‘In my view there is no merit in this submission. The sliding-scale settlements scheme has nothing to do with the presumption of innocence. It is a convenient way for a traffic violator to avoid being charged. Anyone can refuse to pay anything pursuant to the scheme and await the service of the summons. At that time, the full panoply of defence rights come into play, including the presumption of innocence. Accordingly, there is no infringement here of the right of the accused to be presumed innocent.’

Citations:

(1983) 147 DLR (3d) 193

Jurisdiction:

Canada

Cited by:

CitedLawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
Lists of cited by and citing cases may be incomplete.

Natural Justice

Updated: 26 November 2022; Ref: scu.384109

Regina v Genereux: 1992

(Canada) The court discussed the human rights compliance of the courts martial system, and whether the trial of a soldier on a criminal charge by a General Court Martial met the requirements of s 11(d) of the Charter. L’Heureux-Dubee J said: ‘When measuring the General Court Martial against the requirements of the Charter, certain considerations must be kept in mind. Among those considerations are that the armed forces depend upon the strictest discipline in order to function effectively and that alleged instances of non-adherence to rules of the military need to be tried within the chain of command’.
Lamer CJC said: ‘The essential conditions of independence, or basic mechanisms by which independence can be achieved, were discussed by Le Dain J. in Valente. He emphasized that a flexible standard must be applied under s. 11(d). Since s. 11(d) must be applied to a variety of tribunals, it is inappropriate to define strict formal conditions as the constitutional requirement for an independent tribunal. Mechanisms that are suitable and necessary to achieve the independence of the superior courts, for example, may be highly inappropriate in the context of a different tribunal. For this reason, the court chose to define three essential conditions of independence that can be applied flexibly, being capable of attainment by a variety of legislative schemes or formulas . . Similarly, s. 11(d) of the Charter requires that a decision-maker have a basic degree of financial security. The substance of this condition is as follows . . `The essence of such security is that the right to salary and pension should be established by law and not be subject to arbitrary interference by the executive in a manner that could affect judicial independence.’
Within the limits of this requirement, however, the federal and provincial governments must retain the authority to design specific plans of remuneration that are appropriate to different types of tribunals. Consequently, a variety of schemes may equally satisfy the requirement of financial security, provided that the essence of the condition is protected.’
Lamer CJC also said: ‘I emphasize that an individual who wishes to challenge the independence of a tribunal for the purposes of s. 11(d) need not prove an actual lack of independence. Instead, the test for this purpose is the same as the test for determining whether a decision-maker is biased. The question is whether an informed and reasonable person would perceive the tribunal as independent.’

Judges:

L’Heureux-Dubee J, Lamer CJC

Citations:

(1992) 88 DLR (4th) 110

Jurisdiction:

Canada

Commonwealth, Armed Forces

Updated: 25 November 2022; Ref: scu.420998

Frater v The Queen (Note): PC 1981

(Trinidad and Tobago) Similar vigilance should be observed as has been requested in Harrikissoon to see that claims made by appellants to be entitled to appeal as of right under section 110(1)(c) are not granted unless they do involve a genuinely disputable question of interpretation of the Constitution and not one which has merely been contrived for the purpose of obtaining leave to appeal to the Board as of right.

Judges:

Lord Diplock

Citations:

[1981] 1 WLR 1468

Jurisdiction:

England and Wales

Citing:

CitedHarrikissoon v Attorney-General of Trinidad and Tobago PC 1980
(Trinidad and Tobago) The appellant teacher alleged that he had been transferred from one school to another without proper notice and as punishment. The appellant instead of following a laid out procedure which would have eventually led to a . .

Cited by:

CitedAlleyne-Forte v The Attorney General of Trinidad and Tobago and others PC 20-Oct-1997
(Trinidad and Tobago) The appellant had parked his car away from the kerb, and it had been towed away under the regulations. He challenged the validity of the regulations, which charged a high fee for storage and restoration, claiming that this . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 25 November 2022; Ref: scu.181859

A Best Floor Sanding Pty Ltd v Skyr Australian Pty Ltd: 1999

(Australia) The right of a contributor to a company to take his application for a winding up of the company to court could not be ousted by agreement btween the parties.

Judges:

Warren J

Citations:

[1999] VSC 170

Jurisdiction:

Australia

Cited by:

CitedExeter City AFC Ltd v Football Conference Ltd and Another ChD 29-Jan-2004
The football club played in a league operated by the first defendant, which sought a stay of an application for relief from unfair prejudice, saying their was a binding obligation for the complaint to be referred to arbitration.
Held: ‘the . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 25 November 2022; Ref: scu.193477

Bank of New Zealand v Greenwood: 14 Dec 1983

High Court – New Zealand. The glass roof of a verandah which deflected the sun’s rays so that a dazzling glare was thrown on to neighbouring buildings was held, prima facie, to create a nuisance. Hardie Boys J said: ‘To the extent that this is an appeal to set the public interest ahead of the private interests of the plaintiffs, then I regret that authority requires me to close my ears to it’

Judges:

Hardie Boys J

Citations:

[1984] 1 NZLR 525

Jurisdiction:

England and Wales

Cited by:

CitedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
CitedCoventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Lists of cited by and citing cases may be incomplete.

Nuisance

Updated: 25 November 2022; Ref: scu.195588

Monds v Stackhouse: 1948

(High Court of Australia) A gift of money was made to the Corporation of a city to provide the nucleus of a fund to provide ‘a suitable hall or theatre for the holding of concerts to provide music for the citizens of the City and for the production of drama entertainments and the holding of meetings of a cultural or educational value’.
Held: The gift was charitable. A gift to a municipal corporation for enabling it to discharge one of its functions was charitable as bringing about a reduction of the burden of rates and taxes on the community. If the trusts created would otherwise be valid charitable trusts, their validity is not to be impugned by a provision which permits these trust to be implemented, in part, by being placed at the disposition of private individuals.

Judges:

Latham LJ, Dixon and McTiernan JJ

Citations:

(1948) 77 CLR 232

Jurisdiction:

Australia

Cited by:

CitedBath and North East Somerset Council v HM Attorney General, The Treasury Solicitor (Bona Vacantia) ChD 31-Jul-2002
Land was conveyed to the Council’s predecessor on condition that it be left available for use for sports and similar recreations, and left as an open space. It was now sought to develop the land as a home for a football club. The Council sought . .
Lists of cited by and citing cases may be incomplete.

Charity

Updated: 25 November 2022; Ref: scu.180935

Motherwell v Motherwell: 1976

(Appellate Division of the Alberta Supreme Court) The court recognised that not only the legal owner of property could obtain an injunction, on the ground of private nuisance, to restrain persistent harassment by unwanted telephone calls to his home, but also that the same remedy was open to his wife who had no interest in the property: ‘Here we have a wife harassed in the matrimonial home. She has a status, a right to live there with her husband and children. I find it absurd to say that her occupancy of the matrimonial home is insufficient to found an action in nuisance. In my opinion she is entitled to the same relief as is her husband, the brother.’

Judges:

Clement JA

Citations:

(1976) 73 DLR (3d) 62

Jurisdiction:

Canada

Citing:

AppliedFoster v Warblington Urban District Council CA 1906
A nuisance was caused by the discharge of sewage by the defendant council into oyster beds. The plaintiff was an oyster merchant who had for many years been in occupation of the oyster beds which had been artificially constructed on the foreshore, . .

Cited by:

FollowedKhorasandjian v Bush CA 16-Feb-1993
The plaintiff was an eighteen year old girl who had had a friendship with the defendant, aged 28. The friendship broke down and the plaintiff said she would have no more to do with him, but the defendant did not accept this. There were many . .
DoubtedHunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Nuisance

Updated: 25 November 2022; Ref: scu.195593

Yew Bon Tew v Kenderaan Bas Mara: PC 7 Oct 1982

(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue under the 1974 Act.
Held: The claim was time barred. The respondent’s right to rely upon entitlement to plead the twelve-month time bar constituted an accrued right, and the Act was not to be construed retrospectively depriving it of its defence unless such a construction was unavoidable, which it was not.
Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past. Whether a statute is to be construed in a retrospective sense, and if so to what extent, depends on the intention of the legislature as expressed in the wording of the statute, having regard to the normal canons of construction and to the relevant provisions of any interpretation statute.
Lord Brightman said: ‘Apart from the provisions of the interpretation statutes, there is at common law a prima facie rule of construction that a statute should not be interpreted retrospectively so as to impair an existing right or obligation unless that result is unavoidable on the language used. A statute is retrospective if it takes away or impairs a vested right acquired under existing laws, or creates a new obligation, or imposes a new duty, or attaches a new disability, in regard to events already past.’ As to whether a right to rely upon a statutory limitation provision of that type was a vested right he answered ‘yes’, citing Maxwell v Murphy. The respondent had acquired an ‘accrued right’ on the failure by the appellants to commence an action within the specified period. The proper approach to the construction of the 1948 Ordinance was to see whether the statute, if applied retrospectively, would impair existing rights and obligations. An accrued right to plead a time bar, which is acquired after the lapse of the statutory period, is in every sense a right, even though it arises under an Act which is procedural. It is a right which is not to be taken away by conferring on the statute a retrospective operation, unless such a construction is unavoidable.’
He concluded: ‘In the opinion of their Lordships an accrued entitlement on the part of a person to plead the lapse of a limitation period as an answer to the future institution of proceedings is just as much a ‘right’ as any other statutory or contractual provision against a future suit.’

Judges:

Lord Brightman, Lord Fraser of Tulleybelton, Lord Scarman, Kord Kwry, Lord Bridge of Harwich

Citations:

[1983] 1 AC 553, [1982] 3 All ER 833, [1982] 3 WLR 1026

Jurisdiction:

England and Wales

Citing:

CitedMaxwell v Murphy 1957
Sir Owen Dixon CJ said: ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a . .

Cited by:

CitedNicholls v London Borough of Greenwich CA 3-Apr-2003
The claimant had been employed by the respondent, and earned a pension. She challenged legislation which appeared to operate retrospectively to reduce that pension. The respondent argued that the amount agreed to be paid exceeded the maximum . .
CitedRegina v Register of Trade Marks ex parte Interturbine Germany Gmbh Admn 22-Feb-1999
An action was begun opposing a trade mark. It was conducted under the old rules, which did not allow for an order for discovery. After the new rules came into effect, discovery was sought, but the registrar said the old rules would continue to apply . .
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
CitedArnold v Central Electricity Generating Board HL 22-Oct-1987
The plaintiff was widow and administratrix of the estate of her deceased husband. He had worked from April 1938 to April 1943 for a predecessor to the CEGB. He had been exposed to asbestos dust as a result of his employer’s negligence and breach of . .
CitedMcDonnell v Congregation of Christian Brothers Trustees (Formerly Irish Christian Brothers) and others HL 4-Dec-2003
In 2000, the claimant sought damages for sexual abuse from before 1951. The issue was as to whether the limitation law which applied was that as at the date of the incidents, or that which applied as at the date when he would be deemed uner the . .
CitedOxfordshire County Council v Oxford City Council, Catherine Mary Robinson ChD 22-Jan-2004
Land had been registered in part as a common. The council appealed.
Held: The rights pre-existing the Act had not been lost. The presumption against retrospectively disapplying vested rights applied, and the application had properly been made. . .
CitedA v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
CitedOdelola v Secretary of State for the Home Department HL 20-May-2009
The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application. . .
CitedLawrence v Financial Services Commission PC 14-Dec-2009
lawrence_fscPC2009
(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Limitation

Updated: 25 November 2022; Ref: scu.180540

Ambard v Attorney-General for Trinidad and Tobago: PC 1936

It is competent for Her Majesty in Council to entertain appeals against orders of courts of record overseas imposing penalties for contempt of court.

Citations:

[1936] AC 322

Jurisdiction:

England and Wales

Cited by:

CitedBadry v The Director of Public Prosecutions PC 15-Nov-1982
(Mauritius) The applicant appealed three counts of contempt of court, arising from speeches made by him in the political debate. He had been a minister, but was subject to investigation for fraud. To found a appeal he had to show some blatant or . .
CitedMaharaj v Attorney General for Trinidad and Tobago PC 11-Oct-1976
A judge of the High Court had committed the barrister appellant to prison for seven days for contempt in the face of the court. The barrister was granted special leave to appeal to the Board against the committal order.
Held: Allowing the . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court

Updated: 25 November 2022; Ref: scu.180547