Category: International

Lubbe and others v Cape Plc: CA 24 Aug 1999

Although the court had previously decided to hear a multi-party case here, rather than in South Africa, the failure to disclose an impending group action was sufficient to transform the case leaving South Africa as clearly the most appropriate forum for the case, and to stay the actions commenced here. The House upheld the general principle that an available forum must be one in which the plaintiff can sue as of right, but treated an undertaking to submit to the alternative jurisdiction (in that case, an undertaking by the English holding company to submit to the jurisdiction of the South African court) as sufficient to show that the forum is available even though given after the application for a stay.

Citations:

Times 03-Dec-1999, Gazette 17-Dec-1999, [1999] EWCA Civ 2107

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See also – Lubbe and Others v Cape Plc CA 30-Jul-1998
. .
Appealed to – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .

Cited by:

See also – Lubbe and Others v Cape Plc CA 30-Jul-1998
. .
Appeal from – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 31 May 2022; Ref: scu.147022

Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Ferhut Butt: CA 9 Jul 1999

The applicant had sought an order that the FCO should make representations to the President of the Yemen relating to a criminal trial in progress in the Yemen.
Held: Henry LJ recorded the concession by the respondent Secretary of State that he was under ‘a common law duty to protect its citizens abroad’, but that ‘the extent and the limits of that duty (were) set out in a leaflet that is available for those who travel abroad’. Those leaflets ‘expressly excluded intervention in a criminal trial, which was fatal to the application’
Henry LJ said: ‘Whether and when to seek to interfere or to put pressure on in relation to the legal process, if ever it is a sensible and a right thing to do, must be a matter for the Executive and no one else, with their access to information and to local knowledge. It is clearly not a matter for the courts. It is clearly a high policy decision of a government in relation to its foreign relations and is not justiciable by way of judicial review.’

Judges:

Henry LJ

Citations:

(1999) 116 ILR 607, [1999] EWCA Civ 1803

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Foreign Affairs ex parte Ferhut Butt Admn 1-Jul-1999
Lightman J said: ‘The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions . . This . .
Lists of cited by and citing cases may be incomplete.

International, Judicial Review

Updated: 30 May 2022; Ref: scu.146718

QRS 1 APS and others v Frandsen: CA 21 May 1999

The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought a similar sum in damages against the respondent.
Held: An English court will not enforce foreign revenue laws here. An action which was substantially intended to recover funds for the payment of outstanding taxes by an insolvent company counted as such. This rule is not overridden by the Convention:’There is no definition of ‘revenue matters’ in the Convention and no decision of the European Court bearing on the point.’ (Leave to appeal to HL refused)

Judges:

Simon Brown LJ, Auld LJ, Thorpe LJ

Citations:

Times 27-May-1999, Gazette 16-Jun-1999, [1999] 3 All ER 298, [1999] EWCA Civ 1463, [1999] 1 WLR 2169, [2000] ILPr 8

Links:

Bailii

Statutes:

Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (1968) (Cmnd 7395)

Jurisdiction:

England and Wales

Citing:

Followed – Peter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
Cited – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Cited – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .
Mentioned – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – Williams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
Cited – Kongress Agentur Hagen Gmbh v Zeehaghe Bv. ECJ 15-May-1990
A Dutch hotel group sued in Holland a German agent who on behalf of his German principal had booked and then cancelled a large number of hotel rooms. When the agent sought to third party his principal under a guarantee, jurisdiction for which was . .
Cited – Gourdain v Nadler ECJ 22-Feb-1979
Brussels Convention. Bankruptcy and proceedings relating to the winding-up of insolvent companies or other legal persons. Action for making good the deficiency. – ‘it is necessary, if decisions relating to bankruptcy and winding-up are to be . .
Cited – Ferdinand M.J.J. Duijnstee v Lodewijk Goderbauer ECJ 15-Nov-1983
A liquidator sought to recover a patent from an employee of the company, a claim held not to be excluded from the Convention.
Europa 1. The Convention of 27 September 1968, which seeks to determine the . .
Cited – Hubbard v Hamburger ECJ 1-Jul-1993
An order for security for costs was being sought against an English solicitor who, in the capacity of executor, was seeking to recover part of the testator’s estate in Germany.
Held: It was discrimination unlawful in European law, to require . .

Cited by:

Cited – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
Lists of cited by and citing cases may be incomplete.

International, Taxes Management

Updated: 30 May 2022; Ref: scu.146378

Vervaeke v Smith: HL 1983

A petitioner for a decree of nullity of an English marriage in the English courts on the grounds of lack of consent to the marriage, having failed to obtain such decree, obtained a declaration from the Belgian court that the English marriage, was void ab initio on the ground that the marriage was merely a device to obtain a British passport so that she could work as a prostitute without being deported and that the parties had no intention of living together. She then applied for a declaration in the English court that the Belgian decree was entitled to be recognised in England under the 1933 Act, and the bilateral convention between the UK and Belgium. She lost at first instance and in the Court of Appeal.
Held: Her appeal was dismissed. A marriage must be recognised as legally valid if the requirements of formality and capacity have been met irrespective of the intentions of the parties. The earlier English judgment created to an estoppel per rem judicatam which precluded reliance on the Belgian decree. Recognition of the Belgian decree should be refused on grounds of public policy:
Lord Hailsham of St Marylebone LC described the rule in Henderson v. Henderson as ‘both a rule of public policy and an application of the law of res judicata’ and said of it: ‘whatever the limits of Henderson v. Henderson (1843) 3 Hare 100 (which I regard as a sound rule in ordinary civil litigation) may ultimately turn out to be, I believe that it must apply to a case like the present, where the petitioner in the first proceedings not merely does not rely on the grounds then already in theory available to her, but deliberately conceals the real facts (on which she now relies) from the court in order to put forward a bogus case which is radically inconsistent with them.’
Lord Hailsham approved the statement by Ormrod J at first instance: ‘Where a man and a woman consent to marry one another in a formal ceremony, conducted in accordance with the formalities required by law, knowing that it is a marriage ceremony, it is immaterial that they do not intend to live together as man and wife. It is, of course, quite otherwise where one of the parties believes that the ceremony is something different, e.g., a formal betrothal ceremony as in Kelly (Orse. Hyams) v. Kelly (1932) 49 T.L.R. 99 … or as in Mehta (Orse. Kohn) v. Mehta [1945] 2 All E.R. 690, a ceremony of religious conversion. In such cases the essence of marriage, the mutual exchange of consents accompanied by the formalities required by law, is missing and such marriages are, therefore, void or perhaps voidable. On the other hand, if the parties exchange consents to marry with due formality, intending to acquire the status of married persons, it is immaterial that they intend the marriage to take effect in some limited way or that one or both of them may have been mistaken about or unaware of some of the incidents of the status which they have created. To hold otherwise would impair the effect of the whole system of law regulating marriages in this country, and gravely diminish the value of the system of registration of marriages upon which so much depends in a modern community. Lord Merrivale in Kelly (Orse. Hyams) v. Kelly, 49 T.L.R. 99, 101 said: ‘In a country like ours, where the marriage status is of very great consequence and where the enforcement of the marriage laws is a matter of great public concern, it would be intolerable if the marriage of law could be played with by people who thought fit to go to a register office and subsequently, after some change of mind, to affirm that it was not a marriage because they did not so regard it.’ See also the observations of Hodson J. in Way v. Way [1950] P. 71, 79, approved by the Court of Appeal in Kenward v. Kenward [1961] P. 124, 133 and Silver v. Silver [1955] 2 All E.R. 614.’
Lord Simon of Glaisdale said: ‘There is little authority for refusing, on the ground of public policy, to recognise an otherwise conclusive foreign judgment – no doubt because the conclusiveness of a judgment of a foreign court of competent jurisdiction is itself buttressed by the rule of public policy, interest republicae ut sit finis litium, the ‘commonwealth’ in conflict of laws extending to the whole international community.’ Our perceptions of public policy must at least be tested against perceptions elsewhere even if: ‘There appears to be no inherent reason why, giving every weight to the international spirit of the conflict of laws, we should surrender our own policy to that of any foreign society.’

Judges:

Lord Simon of Glaisdale, Lord Hailsham LC

Citations:

[1983] 1 AC 145, [1982] 2 All ER 144, [1982] 2 WLR 855

Statutes:

Foreign Judgments (Reciprocal Enforcement) Act 1933

Jurisdiction:

England and Wales

Citing:

Appeal from – Vervaeke v Smith CA 1981
The issue was whether a Belgian decree pronouncing void a marriage celebrated in England should be recognised here. The parties had entered into the marriage with no intention of ever living together. Relying on its notion of public policy, the . .
Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .

Cited by:

Cited – Soleimany v Soleimany CA 4-Mar-1998
The parties were Iranian Jews, father and son. The son arranged to export carpets from Iran in contravention of Iranian law. The father and son fell into dispute about their contracts and arranged for the issues to be resolved by the Beth Din . .
Cited – J v S T (Formerly J) CA 21-Nov-1996
The parties had married, but the male partner was a transsexual, having been born female and having undergone treatment for Gender Identity Dysphoria. After IVF treatment, the couple had a child. As the marriage broke down the truth was revealed in . .
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Baiai and others, Regina (on the Application of) v Secretary of State for the Home Department HL 30-Jul-2008
In order to prevent marriages of convenience in the UK the Secretary of State introduced a scheme under which certain persons subject to immigration control required her written permission to marry and would not receive it unless they were present . .
Cited – Her Majesty’s Attorney General v Akhter and Another CA 14-Feb-2020
Islamic Nikah Ceremony did not create a marriage
The parties had undertaken, in 1998, an Islamic marriage ceremony, a Nikah. They both knew at the time that to be effective in UK law, there would need to be a civil ceremony, and intended but did not achieve one. The parties having settled their . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 29 May 2022; Ref: scu.219311

A Elaine Jordan v Roy Gregory Jordan: Admn 12 Jul 1999

The parties had married and divorced and made a financial settlement in the US, but the husband had returned to live in the UK. The wife now sought in effect to enforce the balance of the US order here.

Judges:

Simon Brown LJ, Auld LJ, Thorpe LJ

Citations:

[1999] EWHC Admin 666, [2000] 1 WLR 210, [1999] 2 FLR 1069, [1999] 3 FCR 481, [1999] Fam Law 695

Links:

Bailii

Cited by:

Appeal from – Jordan v Jordan CA 29-Jul-1999
Where a divorce had been in a competent foreign court between parties then living there, and the ancillary relief had been granted by that court, an application to enforce the ancillary relief order should first be made to the original court, and . .
Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Cited – Traversa v Freddi CA 14-Feb-2011
Jurisdiction in Cross border divorce
The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 28 May 2022; Ref: scu.139930

Attorney-General of New Zealand v Ortiz: CA 2 Jan 1982

The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its return.
Held: The appeal succeeded. The section could only take effect once forfeiture had occurred. Since that had not occurred, the Crown had no right of ownership or to possession. The section operated as a penal code and as a foreign penal code it was unenforceable in England.
Lord Denning MR said that it was agreed that a foreign penal provision would be unenforceable, but went on to consider, obiter, what would amount to a penal or revenue provision: ‘Then what is the genus? Or, in English, what is the general concept which embraces ‘penal’ and ‘revenue’ laws and others like them? It is to be found, I think, by going back to the classification of acts taken in international law. One class comprises those acts which are done by a sovereign ‘jure imperii,’ that is, by virtue of his sovereign authority. The others are those which are done by him ‘jure gestionis,’ that is, which obtain their validity by virtue of his performance of them. The application of this distinction to our present problem was well drawn by Dr. F. A. Mann 28 years ago in an article ‘Prerogative Rights of Foreign States and the Conflict of Laws’ in Transactions of the Grotius Society (1954) 40 Tr.Gro.Soc. 25, reprinted in his Studies in International Law (1973), pp. 492 to 514.
Applied to our present problem the class of laws which will be enforced are those laws which are an exercise by the sovereign government of its sovereign authority over property within its territory or over its subjects wherever they may be. But other laws will not be enforced. By international law every sovereign state has no sovereignty beyond its own frontiers. The courts of other countries will not allow it to go beyond the bounds. They will not enforce any of its laws which purport to exercise sovereignty beyond the limits of its authority.
If this be right, we come to the question: what is meant by the ‘exercise of sovereign authority’? It is a term which we will have to grapple with, sooner or later. It comes much into the cases on sovereign immunity and into the State Immunity Act 1978: see sections 3(3)(c) and 14(2)(a). It was much discussed recently in I Congreso del Partido [1983] 1 A.C. 244 and by Hazel Fox ‘State Immunity: The House of Lords’ decision in I Congreso del Partido’ in the Law Quarterly Review (1982) 98 L.Q.R. 94. It can provoke much difference of opinion as is shown by the differences amongst the Law Lords on the facts of that very case. But, difficult as it is, it must be tackled.
I suggest that the first thing in such a case as the present is to determine which is the relevant act. Then to decide whether it is of a sovereign character or a non-sovereign character. Finally, to ask whether it was exercised within the territory of the sovereign state-which is legitimate, or beyond it-which is illegitimate.’
Ackner LJ gave as his reason for finding that the New Zealand statute was penal the fact that: ‘It concerns a public right – the preservation of historic articles within New Zealand – which right the State seeks to vindicate. The vindication is not sought by the acquisition of the article in exchange for proper compensation. The vindication is sought through confiscation.’

Judges:

Lord Denning MR, Ackner and O’Connor LJJ

Citations:

[1982] 3 WLR 570, [1982] 3 All ER 432

Jurisdiction:

England and Wales

Citing:

Appeal From – Attorney-General of New Zealand v Ortiz ChD 1984
The New Zealand government sought the return of a Maori carving which had been bought by the defendant after it had been illegally exported from New Zealand. The defendant replied that an English court should not itself enforce a foreign penal . .

Cited by:

Appeal from – Attorney-General of New Zealand v Ortiz HL 3-Jan-1983
The Attorney General had sought the return of a valuable Maori carving which had been illegally exported from New Zealand and was to be sold by the defendant. He appealed against a finding that the provision (s12 Historical Articles Act 1962 of New . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Approved – Re State of Norway’s Application (No 2) HL 1989
The government of Norway sought evidence here to support a claim for tax in Norway.
Held: The State of Norway’s application requesting the oral examination of two witnesses residing in England did not fall foul of the Revenue rule. A claim . .
Cited – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 28 May 2022; Ref: scu.245568

Campaign for Nuclear Disarmament (CND) v Prime Minister and others: Admn 17 Dec 2002

CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action in the event of non-compliance by Iraq with its terms. CND said that the purpose of its application was to ensure that the government did not in the future embark upon unlawful military action against Iraq through an erroneous understanding of the true legal position. CND invited the court to declare that the government would be acting in breach of international law were it to take military action against Iraq without a further resolution.
Held: The court refused the declaration. A court should not declare the meaning of an international instrument operating purely on the plane of international law. All the cases in which the court has pronounced on some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law.
Simon Brown LJ said that the court should not declare the meaning of an international instrument operating purely on the plane of international law. All the cases in which the court has pronounced on some issue of international law are cases where it has been necessary to do so in order to determine rights and obligations under domestic law. He gave a number of examples. Just as in Lyons the House of Lords had refused to take account of the state’s duty in international law since it did not properly sound in domestic law, so in CND the court refused to express a view upon the meaning and effect of UN resolution 1441. Simon Brown LJ: ‘What is sought here is a ruling on the interpretation of an international instrument, no more and no less. It is one thing, as in cases like Kebilene and Launder, for our courts to consider the application of an international treaty by reference to the facts of an individual case. (That, indeed, would have been the position in Lyons itself had the courts been prepared to undertake the exercise.) It is quite another thing to pronounce generally upon a treaty’s true interpretation and effect. There is no distinction between the position of the United Kingdom and that of all other States to whom Resolution 1441 applies. Why should the English courts presume to give an authoritative ruling on its meaning? Plainly such a ruling would not bind other States. How could our assumption of jurisdiction here be regarded around the world as anything other than an exorbitant arrogation of adjudicative power?’ There was no foothold in domestic law for any ruling to be given on international law, in which he included a ruling on the meaning and effect of resolution 1441.
Maurice Kay J noted that there were what Lord Phillips had described in Abbasi at as forbidden areas and concluded that the subject matter of CND’s application fell within them. The issue was non-justiciability. Consideration by the government of whether military action would be lawful under international law by reason of resolution 1441 as part of the exercise of the prerogative powers of the executive and non-justiciable.
Richards J rejected the application on discretionary grounds but also said that the claim was not justiciable because it would take the court into areas of foreign affairs and defence which were the exclusive responsibility of the executive government, a forbidden area. He rejected a submission that it was possible to isolate a purely judicial or legal issue as ‘a clinical point of law’. He set out detailed reasons for agreeing that the application must fail on the ground that it asked the national court to declare the meaning and effect of an instrument of international law, viz resolution 1441.

Judges:

Simon Brown LJ, Maurice Kay LJ, Richards J

Citations:

[2003] LRC 335, [2002] EWHC 2777 (Admin), 126 ILR 727

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
See Also – Campaign for Nuclear Disarmament, Regina (on the Application of) v Secretary of State for Defence Admn 5-Dec-2002
. .

Cited by:

See Also – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others QBD 17-Dec-2002
The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Constitutional, International

Updated: 28 May 2022; Ref: scu.241520

Holland v Lampen-Wolfe: CA 30 Jul 1998

A US citizen acting in course of employment as educational officer on US military base in the UK enjoyed state immunity from liability for defamation. This applied though he was a civilian and the State Immunity Act 1978 did not apply.

Judges:

Nourse, Hutchison LJJ, Sir John Balcombe

Citations:

Times 29-Aug-1998, Gazette 23-Sep-1998, [1998] EWCA Civ 1338, [1999] 1 WLR 188

Links:

Bailii

Statutes:

State Immunity Act 1978

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Appeal from – Holland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
Lists of cited by and citing cases may be incomplete.

Defamation, International

Updated: 28 May 2022; Ref: scu.144817

The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others: QBD 17 Dec 2002

The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A review was granted, but the court then declined to allow itself jurisdiction to interpret an international resolution of this sort, when necessarily the issues at stake were not ones of British law. A domestic court sought to assert itself as to the application of English law within the jurisdiction, but not outside it. An attempt to do so would be likely also to damage public interest in the field of international law. An order was made limiting the costs to andpound;25,000. The court considered the principle ‘whereby the court has no jurisdiction to declare the true interpretation of an international instrument which has not been incorporated into English domestic law and which it is unnecessary to interpret for the purposes of determining a person’s rights and duties under domestic law’.

Judges:

Lord Justice Simon Brown, Mr Justice Maurice Kay, Mr Justice Richards

Citations:

Times 27-Dec-2002, [2002] EWHC 2759 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
See Also – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .

Cited by:

Cited – A B and others v Leeds Teaching Hospitals NHS Trust QBD 9-May-2003
The claimants were involved in a group litigation with regard to the removal of organs without consent from deceased children. The defendant sought an order capping the costs which might be claimed.
Held: In GLO cases the desirability of . .
Cited – Jones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
See Also – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom,The Secretary of State for Foreign and Commonwealth Affairs, The Secretary of State for Defence (2) Admn 5-Dec-2002
The claimants intended to seek a judicial review requesting an interpretation of a resolution of the United Nations Security Council. They sought first, an order pre-emptively to limit their liability for costs.
Held: To make such a protective . .
Lists of cited by and citing cases may be incomplete.

Judicial Review, International, Constitutional, Jurisdiction, Costs

Updated: 28 May 2022; Ref: scu.178526

Peer International Corporation and Others v Termidor Music Publishers Ktd and Another: ChD 11 Dec 2002

The claimant company had acquired the copyrights to the works of several Cuban musicians. A law later passed by Cuba in 1960 had allowed the musicians to re-assign their copyrights.
Held: A title to property which had been given by English law could not be removed by any foreign law. There might be exemptions for occasions of national emergency or similar, but such exceptions would be for Parliament to grant. The abstract nature of copyright did not require it to be dealt with differently in this respect from other property.

Judges:

Neuberger J

Citations:

Times 02-Jan-2003

Jurisdiction:

England and Wales

Cited by:

Appeal from – Peer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
See Also – Peer International Corp and others v Termidor Music Publishers Ltd and Another ChD 25-May-2005
The claimants sought declarations as to the ownership of copyrights to music fom Cuba. Many witnesses would be required to give evidence from Cuba. Attempts to take evidence by video link from Cuba had failed. It was suggested that the judge might . .
See Also – Peer International Corporation and others v Termidor Music Publishers Ltd and others ChD 16-Nov-2006
Claim for English copyright of Cuban musical scores. . .
See Also – Peer International Corporation and others v Termidor Music Publishers and others CA 23-Nov-2007
. .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, International

Updated: 28 May 2022; Ref: scu.178695

Hatch v Baez: 1876

(United States) The plaintiff claimed that he had suffered injuries in the Dominican Republic as a result of acts done by the defendant in his official capacity of President of that Republic. The Court accepted that because the defendant was in New York, he was within the territorial jurisdiction of the State.
Held: ‘But the immunity of individuals from suits brought in foreign tribunals for acts done within their own States, in the exercise of the sovereignty thereof, it is essential to preserve the peace and harmony of nations, and has the sanction of the most approved writers on international law. It is also recognised in all the judicial decisions on the subject that have come to my knowledge ‘
and ‘The counsel for the plaintiff relies on the general principle, that all persons, of whatever rank or condition, whether in or out of office, are liable to be sued by them in violation of law. Conceding the truth and universality of that principle, it does not establish the jurisdiction of our tribunals to take cognizance of the official acts of foreign governments. We think that, by the universal comity of nations and the established rules of international law, the courts of one country are bound to abstain from sitting in judgement on the acts of another government done within its own territory. Each state is sovereign throughout its domain. The acts of the defendant for which he is sued were done by him in the exercise of that part of the sovereignty of St. Domingo which belongs to the executive department of that government. To make him amenable to a foreign jurisdiction for such acts, would be a direct assault upon the sovereignty and independence of his country. The only remedy for such wrongs must be sought through the intervention of the government of the person injured.
The fact that the defendant has ceased to be president of St. Domingo does not destroy his immunity. That springs from the capacity in which the acts were done, and protects the individual who did them, because they emanated from a foreign and friendly government.’

Citations:

(1876) 7 Hun 596

Jurisdiction:

United States

Cited by:

Cited – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, International

Updated: 26 May 2022; Ref: scu.220684

Agnew (Suing On His Own Behalf and In a Representative Capacity on Behalf of all Members of Lloyd’s Syndicates 672, 79, 1023 and 590) and Others v Lansforsakringsbolagens A B: HL 17 Feb 2000

An action relating to misrepresentation before a contract of re-insurance is, within the Lugano Convention, an action relating to a contract, rather than to insurance. Accordingly the appropriate forum for any litigation was the place where the obligation under question was to be performed rather than that of the domicile of the defendant. The assumption that it was to be treated as insurance was understandable but not justified under historical analysis.

Judges:

Lord Nicholls of Birkenhead, Lord Woolf MR, Lord Cooke of Thorndon, Lord Hope of Craighead, Lord Millett

Citations:

Times 23-Feb-2000, Gazette 02-Mar-2000, [2000] UKHL 7, [2000] 1 All ER 737, [2001] 1 AC 223

Links:

House of Lords, House of Lords, House of Lords, Bailii

Statutes:

Lugano Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1988, Civil Jurisdiction and Judgments Act 1991

Jurisdiction:

England and Wales

Citing:

Appeal from – Agnew and others v Lansforsakringsbolagens CA 31-Jul-1997
Conflict of laws. Re-insurers sought to invalidate a claim alleging misrepresentation or non-disclosure. Did the duty of disclosure continue after the contract was in place.
Evans LJ, dissenting said: ‘the reference in Article 5(1) to ‘the . .
Cited – Forsikringsaktieselskabet National (of Copenhagen) v Attorney-General HL 1925
Viscount Cave LC said that ‘by a contract of reinsurance the reinsuring party insures the original insuring party against the original loss.’ . .
Lists of cited by and citing cases may be incomplete.

Insurance, International

Updated: 23 May 2022; Ref: scu.135308

Yukos Capital Sarl v OJSC Rosneft Oil Company: CA 27 Jun 2012

The court was asked to enforce an award of a foreign court, but the claimant objected to admission of evidence as to the procedures underlying the obtaining of the judgment which might go to show unfairness.
Held: International comity and the act of state doctrine did not preclude such an examination. Judicial acts were not to be equated to acts of the state itself.
‘The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed.’

Judges:

Rix, Longmore, Davis LJJ

Citations:

[2012] EWCA Civ 855, [2013] 1 All ER 233, [2012] WLR(D) 186, [2012] 2 Lloyds Rep 208, [2013] 3 WLR 1329, [2012] 2 CLC 549, 143 Con LR 1, [2014] 1 QB 458, [2013] 1 All ER (Comm) 327

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Yukos Capital SARL v OJSC Rosneft Oil Company and Others ComC 16-Apr-2010
Application to discharge freezing order. . .
Appeal from – Yukos Capital Sarl v OJSC Rosneft Oil Company ComC 14-Jun-2011
Determination of preliminary issues in application to enforce arbitration awards. . .

Cited by:

At CA – Yukos Capital Sarl v OJSC Rosneft Oil Company ComC 3-Jul-2014
Preliminary questions relating to the entitlement of the Claimant to recover interest on principal sums awarded in four awards by arbitration tribunals with a Russian seat. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 23 May 2022; Ref: scu.461730

Horeau and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 12 Aug 2016

Renewed application for permission to bring judicial review of a consultation exercise carried out by the Foreign and Commonwealth Office as part of its British Indian Ocean Territory (BIOT) policy review.

Judges:

Andrews J

Citations:

[2016] EWHC 2102 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

International, Administrative

Updated: 23 May 2022; Ref: scu.568836

The Freedom and Justice Party and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another: Admn 5 Aug 2016

The court was asked whether members of special missions visiting the United Kingdom with the approval of the First Defendant (‘the FCO’) enjoy personal inviolability and/or immunity from criminal process pursuant to a rule of customary international law to which effect is given by the common law.

Judges:

Lloyd Jones LJ, Jay J

Citations:

[2016] EWHC 2010 (Admin)

Links:

Bailii

Jurisdiction:

England and Wales

Crime, International

Updated: 23 May 2022; Ref: scu.568008

Westland Helicopters Ltd v Arab Organisation for Industrialisation: 1995

International arbitration proceedings under a joint venture agreement had led to an award in Westland’s favour against the Organisation. The award was converted into a judgment and Westland obtained garnishee orders nisi against six London banks. Colman J was faced with a claim by an Egyptian intervener to be the same as (or a successor to) the Organisation by virtue of domestic Egyptian laws. The justification for such laws was in issue but was said by the intervener to lie in an international law principle of necessity which was in turn said to be invoked by breach by the other member states setting up the Organisation of the treaty by which it was set up. Colman J held such issues to be non-justiciable.

Citations:

[1995] QB 282

Jurisdiction:

England and Wales

Cited by:

Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 22 May 2022; Ref: scu.230258

Canada (Justice) v Khadr: 23 May 2008

Supreme Court of Canada
Civil procedure – Motion for sealing order – Documents to be adduced as fresh evidence can be filed only if subject to sealing order – Admissibility and use of documents to be determined by panel of Supreme Court hearing appeal – Motion granted with conditions.
Civil procedure – Motions to strike – Detainee and interveners arguing that detention in Guantanamo Bay violates detainee’s constitutional rights – Allegations that these arguments raise non-justiciable issues or lack factual basis not sufficient reasons to strike interveners’ factums and paragraphs from detainee’s factum at this stage – Motions dismissed.
Civil procedure – Motions to strike – Detainee and interveners arguing that detention in Guantanamo Bay violates detainee’s constitutional rights – Allegations that these arguments raise new issues rejected – Issues discussed sufficiently in courts below – Interveners to be given some latitude in light of requirement that they must present new and different perspective – Motions to strike interveners’ factums dismissed.

Judges:

McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ

Citations:

[2008] 2 SCR 143, 2008 SCC 29

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Human Rights, International

Updated: 21 May 2022; Ref: scu.634754

Oetjen v Central Leather Co: 1918

(US Supreme Court) Animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser from the revolutionary forces. The goods were brought to the United States.
Held: The assignee of the former owner failed in its claim.
Clarke J said: ‘To permit the acts of one sovereign state to be re-examined and perhaps condemned by the courts of another would very certainly ‘imperil the amicable relations between governments and vex the peace of nations.’ and ‘Every sovereign state is bound to respect the independence of every other sovereign state, and the Courts of one country will not sit in judgment on the acts of a Government of another done within its own territory.’

Judges:

Clarke J

Citations:

[1918] 246 US 297

Jurisdiction:

United States

Cited by:

Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
Cited – Princess Paley Olga v Wiesz CA 1929
The Court considered a seizure of property from the plaintiff which had then been adopted by the Russian Government and a later confiscation decree.
Held: The decree was effective to vest the goods in the Russian authorities and the adopted . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 20 May 2022; Ref: scu.316669

Underhill v Hernandez: 29 Nov 1897

(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill sought to leave. Hernandez refused the request and confined Underhill to his house, in order to coerce Underhill into continuing to operate his waterworks and repair works for the benefit of the revolutionary forces.
Fuller CJ said: ‘Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.’
and ‘The decisions cited on plaintiff’s behalf are not in point. Cases respecting arrests by military authority in the absence of the prevalence of war; or the validity of contracts between individuals entered into in aid of insurrection; or the right of revolutionary bodies to vex the commerce of the world on its common highway without incurring the penalties denounced on piracy; and the like, do not involve the questions presented here.’

Judges:

Fuller CJ

Citations:

(1897) 168 US 250, [1897] USSC 197, 18 SCt 83, 42 L Ed 456

Links:

Worldlii

Jurisdiction:

United States

Citing:

Applied – Duke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .

Cited by:

Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Buttes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 20 May 2022; Ref: scu.241344

Dubai Bank Ltd v Galadari and Others (No 5): 25 Jun 1990

A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated.

Citations:

Times 25-Jun-1990

Jurisdiction:

England and Wales

Citing:

See Also – Dubai Bank Ltd v Galadari CA 1990
A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the . .

Cited by:

See Also – Dubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Lists of cited by and citing cases may be incomplete.

Company, International

Updated: 20 May 2022; Ref: scu.241345

Williams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd: HL 1986

There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the trade marks, but the dispossessed proprietors sought to argue that the Spanish decrees should not be recognised because they were penal or confiscatory. The defence was rejected on the ground that the claimants’ case did not depend on the Spanish decrees, but arose under the general law. The House considered the rule that an English court could not be used to enforce the collection of foreign taxes. Lord Mackay looked at the authorities: ‘From the decision in the Buchanan case [1955] AC 516 counsel for the appellants sought to derive a general principle that even when an action is raised at the instance of a legal person distinct from the foreign government and even where the cause of action relied upon does not depend to any extent on the foreign law in question nevertheless if the action is brought at the instigation of the foreign government and the proceeds of the action would be applied by the foreign government for the purposes of a penal revenue or other public law of the foreign State relief cannot be given. It has to be observed that in the Buchanan case the action was being pursued by a person whose title as liquidator of the company depended on his having been appointed by a petition to the court in Scotland on behalf of the Inland Revenue, that the ground of action was that the transactions being attacked in the proceedings in Dublin were ultra vires and dishonest because there existed at the time that they were effected in Scotland a claim by the Inland Revenue which the transactions were designed to defeat, and that if no such claim existed the defendant would have been entitled to retain the subject matter of the claim. Most important there was an outstanding revenue claim in Scotland against the company which the whole proceeds of the action apart from the expenses of the action and the liquidation would be used to meet. No other interest was involved. That this was regarded as of critical importance appears from what was said in the decision on appeal by Maguire CJ, at p.533
Having regard to the questions before this House in Government of India v Taylor [1955] AC 491 I consider that it cannot be said that any approval was given by the House to the decision in the Buchanan case except to the extent that it held that there is a rule of law which precludes a state from suing in another state for taxes due under the law of the first state. No countenance was given in Government of India v Taylor , in Rossano’s case [1963] 2 QB 352 nor in Brokaw v Seatrain UK Ltd. [1971] 2 QB 476 to the suggestion that an action in this country could be properly described as the indirect enforcement of a penal or revenue law in another country when no claim under that law remained unsatisfied. The existence of such unsatisfied claim to the satisfaction of which the proceeds of the action will be applied appears to me to be an essential feature of the principle enunciated in the Buchanan case [1955] AC 516 for refusing to allow the action to succeed.’
Lord Templeman said: ‘This rule with regard to revenue laws may in the future be modified by international convention or by the laws of the European Economic Community in order to prevent fraudulent practices which damage all States and benefit no State. But at present the international law with regard to the non-enforcement of revenue and penal laws is absolute.’
Lord Templeman said that the striking out of a pleading was discretionary, and: ‘if an application to strike out involves a prolonged and serious argument, the judge should, as a general rule, decline to proceed with the argument unless he not only harbours doubts about the soundness of a pleading but, in addition, is satisfied that striking out will obviate the necessity for a trial, or will substantially reduce the burden of preparing for a trial, or the burden of the trial itself.’

Judges:

Lord Mackay of Clashfern, Lord Templeman

Citations:

[1986] AC 368, [1986] 1 All ER 129, [1986] 2 WLR 24

Jurisdiction:

England and Wales

Citing:

Cited – Peter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
Cited – Government of India v Taylor HL 1955
The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the . .

Cited by:

Cited – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

Taxes Management, International, Litigation Practice

Updated: 19 May 2022; Ref: scu.225458

Princess Paley Olga v Weisz: 1929

English courts will refrain from examining the validity of foreign executive action relating to matters within the territorial jurisdiction of the foreign state.

Citations:

[1929] 1 KB 718

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 19 May 2022; Ref: scu.219444

Dubai Bank Ltd v Galadari: CA 1990

A document created with a view to its being submitted to solicitors for advice does not, despite its purpose, attract privilege, even though the ‘pre-existing documents, and even documents on public records, have been selected by a solicitor for the purpose of advising his client and obtaining evidence and the solicitor has exercised skill and judgment in the selection.’

Judges:

Dillon LJ

Citations:

(1990) Ch 98

Jurisdiction:

England and Wales

Citing:

Cited – Chadwick v Bowman CA 1886
The true question as to whether translations of a privileged document themselves attract privilege, is whether the translations ‘really’ came into existence for the purposes of the action. ‘I think that danger would follow if the privilege against . .
See Also – Dubai Bank Ltd v Galadari (No 2) CA 1990
An ex parte Mareva injunction had been obtained. It was said that there had been material non-disclosure of important facts. The plaintiff bank had been under the control of the Galadaris between 1970 and 1985, when it was taken over by the . .

Cited by:

Cited – Brown and Another v Bennett and Others (No 3) ChD 17-Dec-2001
When a barrister was the subject of an application for a wasted costs order, it was proper to require him to disclose which non-privileged documents he had had sight of, provided that the request was not a way of trying to discover what was in . .
Cited – Sumitomo Corporation v Credit Lyonnais Rouse Limited CA 20-Jul-2001
Documents had been translated from the Japanese, for the purposes of the litigation. The claimant refused disclosure, arguing that they were privileged, and protected from disclosure, having been prepared for the court proceedings.
Held: The . .
See Also – Dubai Bank Ltd and Another v Galadari and Others ChD 19-Feb-1992
Photocopies of documents are discoverable even if they may not be themselves good evidence of the documents of which they are copies. . .
See Also – Dubai Bank Ltd v Galadari and Others (No 5) 25-Jun-1990
A British court can legitimately decide whether a foreign plaintiff company was lawfully incorporated. . .
Lists of cited by and citing cases may be incomplete.

Evidence, Legal Professions, International

Updated: 19 May 2022; Ref: scu.181214

Regina v Governor of Belmarsh Prison and Another, Ex Parte Gilligan; Regina v Governor of Exeter Prison and Another, Ex Parte Ellis: HL 1 Dec 1999

Provided there was sufficient correspondence between the offence alleged to have taken place in Ireland and a serious offence in England, it was proper to order his return to Ireland under an Irish warrant. There is no extradition treaty between the two countries, but the system was properly recorded in the 1965 Act. There was no need for identicality of the offence alleged and the comparable English offence.

Judges:

Lord Browne-Wilkinson Lord Steyn Lord Cooke of Thorndon Lord Hope of Craighead Lord Clyde

Citations:

Times 24-Nov-1999, Gazette 01-Dec-1999, [1999] UKHL 46, [1999] 3 WLR 1244, [2000] 1 All ER 113, [2001] 1 AC 84

Links:

House of Lords, Bailii

Statutes:

Backing of Warrants (Republic of Ireland) Act 1965 2(2)

Cited by:

Cited – Norris 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.

Extradition, International

Updated: 19 May 2022; Ref: scu.85278

Edmunds v Simmonds: QBD 4 Oct 2000

The claimant suffered damages in a road traffic accident in Spain caused by the respondent. A Spanish court would have allowed much lower damages. Such damages should normally be assessed in accordance with the law of the country where the accident happened, but the Act allowed other applicable law to be considered. In this case, both claimant and defendant lived in England, and the majority of damage transpired in England, and the court could and would calculate damages to English standards. The issue was a procedural one, and survived the change in law.
Gartland J said: ‘Even if I had not decided the section 12 point in the claimant’s favour, I would, unless persuaded that Spanish law did not recognise any head of damage recoverable by the claimant, have decided that quantification was purely procedural and should be carried out according to English law in any event.’

Judges:

Gartland J

Citations:

Times 21-Nov-2000, [2001] 1WLR 1003

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995 9, 11

Cited by:

Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .
Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Lists of cited by and citing cases may be incomplete.

International, Damages

Updated: 19 May 2022; Ref: scu.80259

Case Concerning East Timor (Portugal v Australia): ICJ 18 Jul 1995

Indonesia not accepting jurisdiction of International Court of Justice not bound by it. The Court refused, in the absence of Indonesia as a party, to entertain a claim brought by Portugal challenging Australia’s right to conclude a treaty with Indonesia to delimit the continental shelf in the area of the Timor Gap. Portugal’s claim was based on the proposition that it alone remained in law the administering power in respect of East Timor, despite the Portuguese authorities’ withdrawal from East Timor in 1975 followed by Indonesia’s intervention in and control of East Timor since 1975. Portugal’s claim against Australia necessarily depended upon showing that Indonesia had acquired no legal status in respect of East Timor and that Australia and Indonesia therefore had no right to enter into the Treaty. The very subject-matter of Portugal’s claim was the lawfulness of Indonesia’s conduct. But the Court also made clear that it was ‘not necessarily prevented from adjudicating when the judgment it is asked to give might affect the legal interests of a State which is not party to the case’

Citations:

Times 18-Jul-1995

Cited by:

Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 19 May 2022; Ref: scu.78931

Bunzl v Martin Bunzl International Ltd and Others: ChD 3 Aug 2000

Security for costs had been ordered against a Swiss resident claimant. Although Switzerland is not in the EU or in the EEA and therefore rules against discrimination against nationals of member states did not apply, Switzerland was still a signatory to the Brussels and Lugano Conventions for enforcement of judgments. The discretion to require security for costs was slightly wider a regards a Swiss national, but the court should still general follow the rule in Fitzgerald. Orders for security for costs against nationals of other EU member states were discriminatory.

Citations:

Times 19-Sep-2000, Gazette 03-Aug-2000

European, Costs, International

Updated: 18 May 2022; Ref: scu.78741

In re Ping An Securities Ltd: 12 May 2009

(Hong Kong – Court of Final Appeal) The court approved a proposition that a plaintiff ‘must establish a goodwill (in the country or region) in a business in the supply of goods or services’ under the relevant get-up in order to maintain a claim in passing off.

Judges:

Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Mr Justice Gault NPJ

Citations:

[2009] HKCFA 48, (2009) 12 HKCFAR 808, [2009] 4 HKC 332, FACV 26/2008

Links:

Hklii

Jurisdiction:

England and Wales

Cited by:

Cited – Starbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
Lists of cited by and citing cases may be incomplete.

International, Intellectual Property

Updated: 18 May 2022; Ref: scu.566016

Jacob and Youngs Inc v Kent: 1921

Court of Appeals of New York. A building contract specified that the plumbing should use a particular type of piping. In fact the builder used a different type of piping. Cardozo J. stated: ‘In the circumstances of this case, we think the measure of the allowance is not the cost of replacement, which would be great, but the difference in value, which would be either nominal or nothing . . It is true that in most cases the cost of replacement is the measure . . The owner is entitled to the money which will permit him to complete, unless the cost of completion is grossly and unfairly out of proportion to the good to be obtained. When that is true, the measure is the difference in value. Specifications call, let us say, for a foundation built of granite quarried in Vermont. On the completion of the building, the owner learns that through the blunder of a subcontractor part of the foundation has been built of granite of the same quality quarried in New Hampshire. The measure of allowance is not the cost of reconstruction. ‘There may be omissions of that which could not afterwards be supplied exactly as called for by the contract without taking down the building to its foundations, and at the same time the omission may not affect the value of the building for use or otherwise, except so slightly as to be hardly appreciable.’

Judges:

Cardoza J

Citations:

(1921) 230 NY 239

Cited by:

Cited – Ruxley Electronics and Construction Ltd v Forsyth HL 29-Jun-1995
Damages on Construction not as Agreed
The appellant had contracted to build a swimming pool for the respondent, but, after agreeing to alter the specification to construct it to a certain depth, in fact built it to the original lesser depth, Damages had been awarded to the house owner . .
Lists of cited by and citing cases may be incomplete.

Damages, Construction, International

Updated: 18 May 2022; Ref: scu.526102

H v H (The Queen’s Proctor Intervening) (Validity of Japanese Divorce): FD 2006

The court considered the validity of a consensual form of divorce kyogi rikon in Japanese law, the most common form of divorce in Japan. The consent is by written form not judicial act but the signing must be followed by formal registration before a government official in prescribed form.
Held: The involvement of the state is not merely probative or surplusage merely proving a divorce the parties have achieved through their prior consent which of itself creates nothing. ‘No registration no divorce’ was not simply a description of the kyogi rikon but an essential element of proceedings.
Wildblood QC J deduced the following propositions: ‘(a) The power to refuse recognition should be exercised sparingly;
(b) The principle of comity is a relevant consideration;
(c) The subsection confers a residual discretion;
(d) The conduct of the parties leading up to the divorce may be a relevant factor;
(e) Motivation (such as in the exceptional circumstances of Chaudhary) may also be relevant;
(f) The consequences to the parties of a refusal of recognition may also be considered.’

Judges:

Wildblood QC J

Citations:

[2006] EWHC 2989 (Fam), [2007] 1 FLR 1318

Statutes:

Family Law Act 1986 46

Jurisdiction:

England and Wales

Cited by:

Cited – H v S FD 18-Nov-2011
The court was asked whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the Sharia Court is entitled to be afforded recognition . .
Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 18 May 2022; Ref: scu.450572

Anderson v New York Telephone Co: 1974

(New York) The court considered the role of a telephone company in a defamation action and said that ‘the telephone company’s role is merely passive.’ There was no liability for the phone company in having furnished a service to someone who used the connection to play a defamatory recording to all callers.

Citations:

(1974) 35 NY 2d 746, 361 NYS2d 913, 320 NE2d 647

Jurisdiction:

United States

Cited by:

Cited – Godfrey v Demon Internet Limited QBD 26-Mar-1999
An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in . .
Cited – Bunt v Tilley and others QBD 10-Mar-2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Lists of cited by and citing cases may be incomplete.

International, Media, Defamation

Updated: 18 May 2022; Ref: scu.277102

Abraham v United States: 1919

(US Supreme Court) Holmes J (dissenting): ‘the best test of truth is the power of the thought to get itself accepted in the competition of the market.’

Judges:

Holmes J

Citations:

(1919) 250 US 616

Jurisdiction:

United States

Cited by:

Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Lists of cited by and citing cases may be incomplete.

Media, International

Updated: 17 May 2022; Ref: scu.230248

Energy Financing Team Ltd and others v The Director of the Serious Fraud Office, Bow Street Magistrates Court: Admn 22 Jul 2005

The claimants sought to set aside warrants and executions under them to provide assistance to a foreign court investigating alleged unlawful assistance to companies in Bosnia Herzegovina.
Held: The issue of such a warrant was a serious step. The court gave guidance on the practice to be followed, but it was not correct for the details of the request to be released. The application failed.
Kennedy LJ said: ‘The warrant needs to be drafted with sufficient precision to enable both those who execute it and those whose property is affected by it to know whether any individual document or class of document falls within it. If that is done it seems to me that the specifically required will be no less than would be required for a notice under section 2(3) were it practicable to serve such a notice and although the terms of the warrant may be wide it will not simply be fishing if it is directed to support an investigation which has apparent merit.’
Crane J said: ‘a warrant should be capable of being understood by those carrying out the search and by those whose premises are being searched without reference to any other document.’
‘The remedy which is available to a person or persons affected by a warrant is to seek judicial review. It is an adequate remedy because the statutory provisions have to be read in the light of those articles of the European Convention which are now part of English law. In fact, . . if the statutory provisions are satisfied the requirements of article 8 of the Convention will also be satisfied, and at least since the implementation of the Human Rights Act an application for judicial review is not bound to fail if, for example, the applicant cannot show that the Director’s decision to seek a warrant in a particular form was irrational, but in deciding whether to grant permission to apply for judicial review the High Court will always bear in mind that the seizure of documents pursuant to a warrant is an investigative step, perhaps best reconsidered either at or even after the trial.
(10) Often it may not be appropriate, even after the warrant has been executed, to disclose to the person affected or his legal representatives all of the material laid before the district judge because to do so might alert others or frustrate the purposes of the overall inquiry, but the person affected has a right to be satisfied as to the legality of the procedure which led to the execution of the warrant, and if he or his representatives do ask to see what was laid before the district judge and to be told about what happened at the hearing, there should, so far as possible, be an accommodating response to that request. It is not sufficient to say that the applicant has been adequately protected because discretion has been exercised first by the Director and then by the district judge. In order to respond to the request of an applicant it may be that permission for disclosure has to be sought from an investigating authority abroad, and/or that what was produced or said to the district judge can only be disclosed in an edited form, but judicial control by way of judicial review cannot operate effectively unless the person or persons affected are put in a position to take meaningful advice, and if so advised to seek relief from the court. Furthermore it is no answer to say that there is no general duty of disclosure in proceedings for judicial review.’

Judges:

Kennedy LJ, Crane J

Citations:

[2005] EWHC 1626 (Admin), [2006] 1 WLR 1316

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984

Jurisdiction:

England and Wales

Citing:

Cited – Williams v Somerfield 1972
The court emphasised that a search warrant is a potentially serious invasion of the liberty of the subject, and a gross invasion of privacy. Lord Widgery also drew the distinction between authorising the obtaining of material as permitted by . .
Cited – ex parte Adegbesan 1987
The court emphasised the need for specificity in any notice given under section 9 of the 1984 Act. . .
Cited – Regina v Director of Serious Fraud Office ex parte KM and others 7-Apr-1998
A request for assistance came from the United States pursuant to the Mutual Legal Assistance Treaty of 2nd December 1996. Pill LJ, giving the first judgment stressed the need for candour and full disclosure when a warrant is being sought, quoting . .
Cited – Regina v Lewes Crown Court ex parte Hill 1991
Bingham LJ said: ‘The Police and Criminal Evidence Act governs a field in which there are two very obvious public interests. There is, first of all, a public interest in the effective investigation and prosecution of crime. Secondly, there is a . .
Cited – Regina v Secretary of State for the Home Department and Another, Ex Parte Finninvest Spa and Others QBD 23-Oct-1996
The referral of an approach from the Italian authorities for help to the Serious Fraud Office was not wrong. Where assistance is being given to an authority abroad in relation to an on-going investigation both the letter of request and the draft . .
Approved – Regina v Southwark Crown Court and Another, Ex Parte Sorsky and Defries QBD 21-Jul-1995
A search warrant should be issued on behalf of a foreign court only after a fullest consideration of the law, but it could be used to allow removal of material as evidence of foreign offences. The court heard an application to a Crown Court judge . .
Cited – Peck v The United Kingdom ECHR 28-Jan-2003
peck_ukECHR2003
The claimant had been filmed by CCTV. He had, after attempting suicide, left home with a knife, been arrested by the police and disarmed, but then sent home without charge. The CCTV film was used on several occasions to advertise the effectiveness . .
Cited – Abacha, Bagudu v The Secretary of State for the Home Department, The Federal Republic of Nigeria Interested Party Admn 18-Oct-2001
Attempts were being made by the Federal Government of Nigeria to recover moneys alleged to have been taken fraudulently from the state. They sought assistance from the UK, and the claimants sought details of that request. The statute provided that . .
Cited – Smith and Grady v The United Kingdom ECHR 27-Sep-1999
The United Kingdom’s ban on homosexuals within the armed forces was a breach of the applicants’ right to respect for their private and family life. Applicants had also been denied an effective remedy under the Convention. The investigations into . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Evans and Lord Admn 2002
The United States, in connection with the investigation of an alleged fraud, sought the assistance of the Secretary of State to obtain evidence and information from members of an English firm of accountants, who were not themselves under suspicion. . .
Cited – Kent Pharmaceuticals Ltd and others v Serious Fraud Office Admn 2002
There was to be an investigation by the SFO into allegations that some in the pharmaceutical industry were dishonestly increasing the price charged for drugs supplied to the NHS. On 27th March 2002 District Judge Nicholas Evans received written . .
Cited – Kent Pharmaceuticals Ltd, (Regina on the Application of ) v Serious Fraud Office and Another Admn 17-Dec-2003
The claimant sought judicial review of the decision of the respondent to disclose documents obtained by it from them during an investigation.
Held: The decisions to disclose material to the DoH were ‘in accordance with law’ within the meaning . .
Cited – Buck v Germany ECHR 28-Apr-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; No separate issue under Art. 6; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; Costs and expenses . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
Cited – In re S (a Child) (Identification: Restrictions on Publication) HL 28-Oct-2004
Inherent High Court power may restrain Publicity
The claimant child’s mother was to be tried for the murder of his brother by poisoning with salt. It was feared that the publicity which would normally attend a trial, would be damaging to S, and an application was made for reporting restrictions to . .

Cited by:

Mentioned – Mercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
Cited – Mercury Tax Group Ltd and Another, Regina (On the Application of) v HM Revenue and Customs and Others Admn 13-Nov-2008
The claimant sought judicial review of the lawfulness of search warrants given to the Commissioners and executed at their various offices. The Revenue had suspect the dishonest implementation of a tax avoidance scheme. The claimants said that there . .
Cited – Fitzpatrick and Others v The Commissioner of Police of The Metropolis QBD 11-Jan-2012
The claimants, two solicitors and their employer firm sought damages alleging trespass and malicious procurement by police officers in obtaining and executing search warrants against the firm in 2007 when they were investigating suspected offences . .
Cited – Global Cash and Carry Ltd, Regina (on The Application of) v Birmingham Magistrates’ Court and Others Admn 19-Feb-2013
The claimant sought an order quashing a search warrant, and for damages. The officer had said that he had evidence that the claimants were storing an distributing from the premises large quantities of counterfeit goods and drugs.
Held: The . .
Cited – Haralambous, 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 . .
Cited – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, International

Updated: 17 May 2022; Ref: scu.229058

Al-Fawwaz v Governor of Brixton Prison: QBD 20 Dec 2000

To found an extradition application, it was not sufficient that the crime should be listed as such by English law, but it was also necessary that it should be a crime of appropriate standing in the country to which extradition was sought. The crime also had to have been committed within the territory of the nation which sought extradition. Here, the USA sought extradition in respect to of offences which had not been committed in the USA, of people who had had no connection with the USA.

Citations:

Times 20-Dec-2000, [2000] EWHC Admin 424

Links:

Bailii

Statutes:

Extradition Act 1989 1(3)

Jurisdiction:

England and Wales

Cited by:

Appeal from – In Re Khalid Al-Fawwaz (Application for a Writ of Habeas Corpus) (on Appeal From a Divisional Court of the Queen’s Bench Division) HL 17-Dec-2001
The fact that a crime for which extradition was sought was extra-territorial one to the country making the request, was not enough to counter the application. The schedule required the person to be ‘accused or have been convicted of an extradition . .
Lists of cited by and citing cases may be incomplete.

Extradition, International

Updated: 17 May 2022; Ref: scu.77720

Ace Insurance Sa-Nv v Zurich Insurance Company and Another: QBD 6 Sep 2000

The doctrine of ‘forum non conveniens’ could be used to prevent the prosecution in the UK in respect of a matter agreed to be conducted in Texas, even though the proper applicable law was that England. The Act did not restrict the application of the doctrine in this way even for a non-contracting state, where the parties were subject to an express agreement or provision to this effect.

Citations:

Times 06-Sep-2000

Statutes:

Civil Jurisdiction and Judgments Act 1982

Cited by:

Appeal From – Ace Insurance Sa/Nv v Zurich Insurance Co and Another CA 2-Feb-2001
The doctrine of forum non conveniens could be used to prevent the prosecution in the UK in respect of a matter agreed to be conducted in Texas, even though the proper applicable law was that England. The Act did not operate to restrict the . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 17 May 2022; Ref: scu.77626

In re English, Scottish and Australian Chartered Bank: 1893

Vaughan Williams J said: ‘One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to govern the liquidation; and let the other courts act as ancillary, as far as they can, to the principal liquidation. But although that is so, it has always been held that the desire to assist in the main liquidation – the desire to act as ancillary to the court where the main liquidation is going on – will not ever make the court give up the forensic rules which govern the conduct of its own liquidation.'(

Judges:

Vaughan Williams J

Citations:

[1893] 3 Ch 385

Cited by:

Cited – Cape Plc and Others, Re Companies Act 1985 ChD 16-Jun-2006
The court was asked to sanction a scheme of arrangements, and particularly to approve a proposed scheme which itself contained the power to make amendments to the scheme.
Held: The court did have power to sanction such a proposed scheme of . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Company, Insolvency, International

Updated: 17 May 2022; Ref: scu.244199

Keeble v United States: 1971

(US Supreme Court) Brennan J said: ‘Moreover, it is no answer to petitioner’s demand for a jury instruction on a lesser offense to argue that a defendant may be better off without such an instruction. True, if the prosecution has not established beyond a reasonable doubt every element of the offense charged, and if no lesser offense instruction is offered, the jury must, as a theoretical matter, return a verdict of acquittal. But a defendant is entitled to a lesser offense instruction – in this context or any other – precisely because he should not be exposed to the substantial risk that the jury’s practice will diverge from theory. Where one of the elements of the offense charged remains in doubt, but the defendant is plainly guilty of some offense, the jury is likely to resolve its doubts in favor of conviction. In the case before us, for example, an intent to commit serious bodily injury is a necessary element of the crime with which petitioner was charged, but not of the crime of simple assault. Since the nature of petitioner’s intent was very much in dispute at trial, the jury could rationally have convicted him of simple assault if that option had been presented. But the jury was presented with only two options: convicting the defendant of assault with intent to commit great bodily injury, or acquitting him outright. We cannot say that the availability of a third option – convicting the defendant of simple assault – could not have resulted in a different verdict.’

Judges:

Brennan J

Citations:

(1971) 412 US 205

Jurisdiction:

United States

Cited by:

Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 17 May 2022; Ref: scu.243350

Pelman v McDonald’s Corporation: 1993

(United States District Court, S.D. New York,) Customers sued McDonald’s for the excess sale of fatty fast food products to children.
Held: The action was dismissed. the defendants owed no duty to warn consumers of the products’ well-known attributes, setting out the causes of action alleged by the plaintiffs, two of which were expressed in these terms: ‘Count III sounds in negligence, alleging that McDonalds acted at least negligently in selling food products that are high in cholesterol, fat, salt and sugar when studies show that such foods cause obesity and detrimental health effects. Count IV alleges that McDonalds failed to warn the consumers of McDonalds’ products of the ingredients, quantity, qualities and levels of cholesterol, fat, salt and sugar content and other ingredients in those products, and that a diet high in fat, salt, sugar and cholesterol could lead to obesity and health problems.’ As to count III, at ‘It is well-known that fast food in general, and McDonalds’ products in particular, contain high levels of cholesterol, fat, salt and sugar, and that such attributes are bad for one. . . If a person knows or should know that eating copious orders of super- sized McDonalds’ products is unhealthy and may result in weight gain (and its concomitant problems) because of the high levels of cholesterol, fat, salt and sugar, it is not the place of the law to protect them from their own excesses. Nobody is forced to eat at McDonalds. As long as a consumer exercises free choice with appropriate knowledge, liability for negligence will not attach to a manufacturer. […] Plaintiffs have failed to allege in the Complaint that their decisions to eat at McDonalds several times a week were anything but a choice freely made and which now may not be pinned on McDonalds.’

Judges:

District Judge Sweet

Citations:

237 F.Supp.2d 512 (S.D.N.Y.2003).

Jurisdiction:

United States

Cited by:

Cited – McTear 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.

International, Negligence, Consumer

Updated: 17 May 2022; Ref: scu.226711

Paugh v RJ Reynolds Tobacco Company: 1993

(United States District Court, N.D.Ohio, E.D) A tobacco company was sued in negligence.
Held: ‘The dangers posed by tobacco smoking have long been within the ordinary knowledge common to the community. In fact, tobacco is specifically mentioned in the Restatement (Second) of Torts as an example of a product which is not defective merely because the effects of smoking may be harmful. Rest. (2d) of Torts -402A(i).’ and ‘[E]specially in light of the Sixth Circuit’s holding in Roysdon, this Court finds that the better-reasoned decisions are those finding the dangers of smoking to have been common knowledge. Much as in the case of alcohol, users of tobacco products have made a consumer choice in the face of health risks that are common to ordinary knowledge . . That some ignore or underestimate these risks has little bearing on the extent to which knowledge of the dangers [is] salient within the community. Therefore, because the risks posed by smoking are an inherent characteristic of cigarettes, and because knowledge of these risks has been common to the community since well before 1966, Paugh’s allegations are insufficient to support her claim for damages caused by a product in an ‘unsafe and defective’ condition. . .’

Citations:

834 F.Supp. 228 (N.D.Ohio 1993)

Jurisdiction:

United States

Cited by:

Cited – McTear 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.

International, Negligence

Updated: 17 May 2022; Ref: scu.226710

Cruz-Vargas v R J Reynolds Tobacco Company: 2003

(United States Court of Appeals, 1st Circuit) Relatives of a deceased smoker brought a negligence and strict liability suit against a tobacco company, alleging that it was responsible for his death. The action was brought in the District Court for the District of Puerto Rico. There was evidence that ‘the average consumer in Puerto Rico during the 1950’s, during the 1960’s’ was aware both of health risks, such as cancer and cardiovascular disease, associated with smoking and that ‘smoking was or could be difficult to quit’. In discussing the evidence regarding common knowledge, the Court of Appeals said: ‘This case calls for us to evaluate application of the common knowledge doctrine in the context of tobacco litigation. The doctrine stems from the principle that a manufacturer cannot be held liable under either strict liability or negligence for failure to warn of a danger commonly known to the public. See, e.g., Guevara v Dorsey Labs., Div. of Sandoz, Inc., 845 F 2d 364, 367 (1st Cir. 1988) (‘The duty to warn in general is limited to hazards not commonly known to the relevant public’); Aponte Rivera v Sears Roebuck, 44 P.R. Offic. Trans. 7, 144 D.P.R. 830 (1998) (‘[A] manufacturer need not warn of a hazard if the average consumer ordinarily has knowledge of the dangers of the product.’). […]
A products liability plaintiff alleging failure to warn must prove
‘(1) the manufacturer knew, or should have known of the risk inherent in the product; (2) there were no warnings or instructions, or those provided were inadequate; (3) the absence of warnings made the product inherently dangerous; (4) the absence of adequate warnings or instructions was the proximate cause of plaintiff’s injury.’
Aponte Rivera, 44 P.R. Offic. Trans. at 6. Under the common knowledge doctrine, however, a defendant neither breaches a duty nor causes the product to be inherently dangerous when the allegedly omitted warning concerns a danger of which the public is well aware. […]
The crux of appellants’ entreaty on appeal is that neither the strict liability nor the negligence claim requires any affirmative showing, and thus the burden rested entirely on Reynolds. Whether or not this is a correct view of the law, after searching the record we have found no evidence which supports appellants’ allegations that there was a lack of common knowledge and thus we are compelled to find that Reynolds met its burden in any event.’
(5) In Roysdon v R.J. Reynolds Tobacco Company 849 F.2d 230 (6th Cir. 1988), a smoker and his wife brought an action against a tobacco manufacturer to recover for disease allegedly caused by smoking. The United States Court of Appeals, Sixth Circuit, inter alia affirmed the dismissal by the United States District Court for the Eastern District of Tennessee of the plaintiffs’ failure to warn claim. At p.236, para.10, the Court of Appeals said:
‘[T]he district court took judicial notice that ‘tobacco has been used for over 400 years and that its characteristics have also been fully explored. Knowledge that cigarette smoking is harmful to health is widespread and can be considered part of the common knowledge of the community.’
Roysdon, 623 F.Supp. at 1192. Remembering that this action was limited to the ten years preceding the filing of this complaint [on 5 July 1984], we think this approach was appropriate. The extensive information regarding the risks of smoking available to the public during that time precluded the existence of a jury question as to whether cigarettes are unreasonably dangerous. We find that whether there was knowledge regarding Mr Roysdon’s specific medical problem is irrelevant in light of the serious nature of the other diseases known at that time to be caused by cigarette smoking.’

Citations:

[2003] 348 F3d 271 (1st Cir.2003)

Cited by:

Cited – McTear 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.

Negligence, International

Updated: 17 May 2022; Ref: scu.226222

California v Green: 1970

(US Supreme Court) There was no violation of the Sixth Amendment when the defendant was convicted of supplying marijuana on the basis of pre-trial statements of a witness who gave evidence at the trial and who was subject to full and effective cross-examination.

Citations:

(1970) 399 US 149

Jurisdiction:

United States

Cited by:

Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 16 May 2022; Ref: scu.222102

Curtin v Barton: 1893

(New York) ‘When a court with competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the protection of private rights should not be defeated or embarrassed by questions relating to the title of the judge who presides in the court, to his office.’

Citations:

(1893) 139 NY 505

Cited by:

Cited – Fawdry and Co (A Firm) v Murfitt CA 14-May-2002
The judge at first instance who was ticketed to sit as a judge in the Technology and Construction Court, had been asked to sit as a judge of the High Court to take this case. The appellant said she was acting outside her powers.
Held: The . .
Cited – Baldock v Webster and Others CA 21-Dec-2004
The claimant alleged negligence against his solicitors in having failed to challenge an order made ultra vires by a county court judge.
Held: The common law doctrine of de facto jurisdiction validated the decision of the judge. The recorder . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 16 May 2022; Ref: scu.221428

Simon Engineering Plc and Another v Butte Mining and Another (No 2): ComC 27 Feb 1995

Procedure – Interlocutory injunction – anti-suit injunction – injunction to prevent appeal in the US from being pursued – foreign court pronounced itself to be without jurisdiction – natural forum – foreign proceedings oppressive

Judges:

Rix J

Citations:

[1996] 1 Lloyd’s Rep 91

Jurisdiction:

England and Wales

Litigation Practice, International

Updated: 16 May 2022; Ref: scu.182569

in Re M (Abduction: Habitual Residence): CA 1996

The court accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility.

Citations:

[1996] 1 FLR 887

Jurisdiction:

England and Wales

Citing:

Approved – In re S (Minors) (Child Abduction: Wrongful Retention) FD 1993
The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father . .

Cited by:

Cited – A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
Cited – Re B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .
Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 16 May 2022; Ref: scu.588978

Cowley v Pulsifer: 1884

(United States – Supreme Court of Massachusetts) The court discussed the advantage nevertheless of having proceedings in public. Holmes J said: ‘The general advantage to the country in having these proceedings made public more than counterbalances the inconveniences to the private persons whose conduct may be the subject of such proceedings.
. . The chief advantage to the country to which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice.
. . It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.’
and ‘If these [the principles of open justice] are not the only grounds upon which fair reports of judicial proceedings are privileged, all will agree that they are not the least important ones. And it is clear that they have no application whatever to the contents of a preliminary written statement of a claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of a private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity.’
and . . ‘It may be objected that our reasoning tacitly assumes that papers properly filed in the clerk’s office are not open to the inspection of the public. We do not admit that this is true, or that the reasons for the privilege accorded to the publication of proceedings in open court would apply to the publication of such papers, even if all the world had access to them. But we do not pause to discuss the question, because we are of opinion that such papers are not open to public inspection.’

Judges:

Holmes J

Citations:

(1884) 137 Mass 392

Cited by:

Cited – Flood v Times Newspapers Ltd SC 21-Mar-2012
The defendant had published an article which was defamatory of the claimant police officer, saying that he was under investigation for alleged corruption. The inquiry later cleared him. The court was now asked whether the paper had Reynolds type . .
Lists of cited by and citing cases may be incomplete.

International, Defamation

Updated: 15 May 2022; Ref: scu.452427

Hoeppner v Dunkirk Printing: 1929

It was held to be defamatory to impute incompetence to a football coach: ‘While the articles complained of fail to charge the plaintiff with the commission of any crime, or to attack his moral character, the fair inference to be drawn from the language used is that the plaintiff is an inefficient coach, and has failed to properly instruct the team in modern play and in the technique of the game, so that they could successfully meet and compete with other teams in their class . . The law recognises one’s right to live and that the majority of people are compelled to earn a living.’

Citations:

227 NYAD 130 (1929)

Cited by:

Cited – Dee v Telegraph Media Group Ltd QBD 28-Apr-2010
The newspaper sought summary judgment in its defence of the defamation claim. The article labelled the claimant as the world’s worst professional tennis player. The paper said he had no prospect of succeeding once the second article in the same . .
Lists of cited by and citing cases may be incomplete.

International, Defamation

Updated: 15 May 2022; Ref: scu.408775

In Re Oriental Inland Steam Company ex parte Scinde Railway Company: CA 1874

The liquidator obtained an order requiring a creditor who had attached assets in India to return them to the company in liquidation.
Sir W M James LJ said: ‘The winding-up is necessarily confined to this country. It is not immaterial to observe, that there could now be no possibility, having regard to the decision of the Supreme Court of Calcutta, in Bank of Hindustan v. Premchand, which we must take to be quite right, of treating this case as if there were an auxiliary winding-up in India. If this is so with regard to a company domiciled in England, but having its business and assets in India, there would be no ground for the contention on the part of the Appellants that they would obtain an equitable and rateable distribution of the assets between the creditors. All the assets there would be liable to be torn to pieces by creditors there, notwithstanding the winding-up, and there would be an utter incapacity of the Courts there to proceed to effect an equitable distribution of them. The English Act of Parliament has enacted that in the case of a winding-up the assets of the company so wound up are to be collected and applied in discharge of its liabilities. That makes the property of the company clearly trust property. It is property affected by the Act of Parliament with an obligation to be dealt with by the proper officer in a particular way. Then it has ceased to be beneficially the property of the company; and, being so, it has ceased to be liable to be seized by the execution creditors of the company.
There may, no doubt, be some difficulty in the way of dealing with assets and creditors abroad. The Court abroad may sometimes not be disposed to assist this Court, or take the same view of the law as the Courts of this country have taken as to the proper mode of dealing with such companies, and also with such assets. If so, we must submit to these difficulties when they occur.
In this particular case there is no such difficulty. There were assets fixed by the Act of Parliament with a trust for equal distribution amongst the creditors. One creditor has, by means of an execution abroad, been able to obtain possession of part of those assets. The Vice-Chancellor was of opinion that this was the same as that of one cestui que trust getting possession of the trust property after the property had been affected with notice of the trust. If so, that cestui que trust must bring it in for distribution among the other cestuis que trust. So I, too, am of opinion, that these creditors cannot get any priority over their fellow-creditors by reason of their having got possession of the assets in this way. The assets must be distributed in England upon the footing of equality.’
Sir G Mellish LJ said: I quite agree that the 87th section of the Act of 1862, providing that no action shall be brought without the leave of the Court, and the 163rd section, enacting that no execution shall issue, apply only to the Courts in this country. Of course, Parliament never legislates respecting strictly foreign Courts. Nor is it usually considered to be legislating respecting Colonial Courts or Indian Courts, unless they are expressly mentioned. Still, that appears to me not to prevent the general application to this case of the principles which have been established in cases of bankruptcy.
No doubt winding-up differs from bankruptcy in this respect, that in bankruptcy the whole estate, both legal and beneficial, is taken out of the bankrupt, and is vested in his trustees or assignees, whereas in a winding-up the legal estate still remains in the company. But, in my opinion, the beneficial interest is clearly taken out of the company. What the statute says in the 95th section is, that from the time of the winding-up order all the powers of the directors of the company to carry on the trade or to deal with the assets of the company shall be wholly determined, and nobody shall have any power to deal with them except the official liquidator, and he is to deal with them for the purpose of collecting the assets and dividing them amongst the creditors. It appears to me that that does, in strictness, constitute a trust for the benefit of all the creditors, and, as far as this Court has jurisdiction, no one creditor can be allowed to have a larger share of the assets than any other creditor.
Then it is said that the assets are subject to the law of the place where they are. I quite agree that if the law of the place where they are had given a charge of that nature on the assets prior to the time when the petition for winding-up was presented, or possibly prior to the time when the winding-up order was made, and a judgment, for instance, had been put on the register, that might, by the law of Bombay, have constituted a charge on the property of the company, and then the trust for the benefit of the creditors would have been subject to that charge. But here there is no allegation that the judgment in Bombay, any more than a judgment here, simply qua judgment, operates as any charge at all. It is quite clear that it does not, and that until the execution and attachment have issued and been executed, there is no actual charge on the property. That charge is subsequent to the creation of the trust, and is made by the particular Appellants here with full notice of the trust.
The consequence necessarily follows, that in this Court these creditors cannot be allowed by such means to obtain priority; and that they must give up, for the benefit of the creditors, what they have so obtained.’

Judges:

Sir W M James LJ, Sir G Mellish LJ

Citations:

(1874) LR 9 Ch App 557

Jurisdiction:

England and Wales

Cited by:

Cited – Harms Offshore AHT Taurus Gmbh and Co KG v Bloom and Others CA 26-Jun-2009
The court had granted to the liquidators of a company a mandatory injunction requiring the appellant German companies to attempt to obtain the release of assets from attachment by the court in new York.
Held: The appeal was dismissed. The . .
Cited – In re Nortel Companies and Others SC 24-Jul-2013
The court was asked as to the interrelationship of the statutory schemes relating to the protection of employees’ pensions and to corporate insolvency.
Held: Liabilities which arose from financial support directions or contribution notices . .
Lists of cited by and citing cases may be incomplete.

Insolvency, International

Updated: 15 May 2022; Ref: scu.375968

Prosecutor v Furundzija: ICT 10 Dec 1998

The status of the prohibition on State torture as a rule of jus cogens has the consequence that at the inter-State level, any legislative, administrative or judicial act authorising torture is illegitimate. Furthermore, the prohibition on State torture imposes obligations owed by States erga omnes, to all other States which have a corresponding right and interest in compliance.
(International Criminal Tribunal for the Former Yugoslavia The Hague) The jus cogens character of the prohibition on torture means that it enjoys a higher rank in the international hierarchy than treaty law and even ‘ordinary’ customary rules with the consequence that no derogation from the rule by States can be permitted, whether through international treaties or local or special customs or even general customary rules not endowed with the same normative force. The prohibition of torture is an absolute value from which nobody must deviate.
‘Furthermore, the prohibition of torture imposes upon states obligations erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has a correlative right. In addition, the violation of such an obligation simultaneously constitutes a breach of the correlative right of all members of the international community and gives rise to a claim for compliance accruing to each and every member, which then has the right to insist on fulfilment of the obligation or in any case to call for the breach to be discontinued.’

Citations:

Case No. IT – 95- 17/T 10, (1998) 38 ILM 317

Links:

ICT

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Prosecutor v Furundzija 1-Apr-1999
(International Criminal Tribunal for the Former Yugoslavia) The court described the main features of the law against torture: ‘There exists today universal revulsion against torture: as a USA Court put it in Filartiga v. Pena-Irala, ‘the torturer . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights

Updated: 15 May 2022; Ref: scu.272824

North Sea Continental Shelf cases: ICJ 1969

The court described the process by which a treaty rule may become a rule of customary law: ‘It would in the first place be necessary that the provisions concerned should, at all events potentially, be of a fundamentally norm-creating character such as could be regarded as forming the basis of a general rule of law . . With respect to the other elements usually regarded as necessary before a conventional rule can be considered to have become a general rule of international law, it might be that, even without the passage of any considerable period of time, a very widespread and representative participation in the convention might suffice of itself, provided it included that of States whose interests were specially affected. . .
Although the passage of only a short period of time is not necessarily, or of itself, a bar to the formation of a new rule of customary international taw on the basis of what was originally a purely conventional rule, an indispensable requirement would be that within the period in question, short though it may be, State practice, including that of States whose interests are specially affected, should have been both extensive and virtually uniform in the sense of the provision invoked; – and should moreover have occurred in such a way as to show a general recognition that a rule of law or legal obligation is involved.’

Citations:

[1969] ICJ Rep. 3

Cited by:

Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 15 May 2022; Ref: scu.272828

Societe D’Informatique Service Realisation Org v Ampersand Software Bv: CA 29 Sep 1993

Foreign judgment registered here despite claim that it was obtained by fraud.

Citations:

Gazette 29-Sep-1993

Jurisdiction:

England and Wales

Cited by:

Reference from – Societe D’Informatique Service Realisation Organisation v Ampersand Software Bv ECJ 25-Sep-1995
Court’s refusal to stay enforcement of foreign court order cannot be appealed against. Different jurisdictions not to be used to get advantage on enforcement. . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 15 May 2022; Ref: scu.89366

Society of Lloyd’s v White and others: QBD 14 Apr 2000

A court in England could issue an injunction preventing parties continuing an action in Australia even though the court there had accepted jurisdiction. The contract contained an exclusive jurisdiction clause for dispute to be settled here, and the Australian court did not appear to have considered relevant English court decisions. Such an action must be speedy, and made with respect for the foreign court.

Citations:

Times 14-Apr-2000

Jurisdiction:

England and Wales

Jurisdiction, International

Updated: 15 May 2022; Ref: scu.89382

Skrine and Co (a Firm) and others v Euromoney Publications plc and others: QBD 10 Nov 2000

The court was asked to strike out parts of a defemation pleading alleging that (i) the Malaysian Prime Minister had acted in a manner intended and/or calculated to interfere with the independent judiciary; (ii) Malaysian judges applied the law of defamation to penalise dissent and stifle freedom of expression; and (iii) the claimants’ insurers only paid the original plaintiffs ‘exorbitant sums by way of ostensible damages and costs because they apprehended that the claimants would not have received a fair trial at the hands of Malaysia’s internationally discredited legal system.’
Held: An English court should not be asked to judge the propriety of the actions of the judiciary of a friendly foreign state. This would put such friendly relations at risk and an English judge could have no way of making such a judgment. It was not a breach of an applicant’s civil rights to enforce a properly made contribution order made there against a citizen here, since under the Act only an award which was just and equitable in all the circumstances could be made. The defence of fair comment could still be tried fairly.

Judges:

Morland J

Citations:

Times 10-Nov-2000, Gazette 23-Nov-2000, [2001] EMLR 16

Statutes:

Civil Liability (Contributions) Act 1978

Jurisdiction:

England and Wales

Citing:

Cited – Buttes Oil and Gas Co v Hammer (No 3) HL 1982
The House considered a dispute between two Us oil companies about the right to exploit an oil field in the Gulf. Each claimed to have a concession granted by the ruler of a Gulf state. Each state claimed that the oil field was within its territorial . .

Cited by:

Cited – Al-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Lists of cited by and citing cases may be incomplete.

International, Human Rights, Defamation

Updated: 15 May 2022; Ref: scu.89300

Emesa Sugar (Free Zone) Nv v Aruba (No 2) Case C-17/98): ECJ 29 Feb 2000

A national court had jurisdiction to make an order against a Non-EC body in order to prevent an imminent infringement of community law, provided that the court had proper and serious doubts about the implementation of the community law, the matter was urgent, and the national court made proper allowance for the Community’s interests.

Citations:

Times 29-Feb-2000

Jurisdiction:

European

International

Updated: 15 May 2022; Ref: scu.80309

As Latvijas Krajbanka v Antonov: ComC 27 May 2016

The bank claimed undr Latvian Law. The defendant though aware of proceedings had failed to comply with court for dicovery, and had not attended the trial. He had been found to have exaggerated the value of a yacht given in security for a loan.
Held: The application had been dishonest and in reckless disregard of the fact that the transaction was not in the interests of the Bank. Similar findings applied to seven other very substantial advances totalling over US$30 million.

Judges:

Leggatt J

Citations:

[2016] EWHC 1262 (Comm), 2014 FOLIO 861 and 761

Links:

Bailii, Judiciary

Jurisdiction:

England and Wales

Banking, International

Updated: 15 May 2022; Ref: scu.564921

Illinois Central Railroad Co v McKendree: 1906

(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that the same line was fixed as to intrastate shipments by legislation of the state through which it passed. Day J said: ‘It is urged by the government that it was not the intention of the Secretary to make provision for intrastate commerce, as the recital of the order shows an intention to adopt the state line, when the state by its legislature has passed the necessary laws to enforce the same completely and strictly. But the order in terms applies alike to interstate and intrastate commerce. . . . We do not say that the state line might not be adopted in a proper case, in the exercise of federal authority, if limited in its effect to interstate commerce coming from below the line, but that is not the present order, and we must deal with it as we find it. Nor have we the power to so limit the Secretary’s order as to make it apply only to interstate commerce, which it is urged is all that is here involved. For aught that appears upon the face of the order, the Secretary intended it to apply to all commerce, and whether he would have made such an order, if strictly limited to interstate commerce, we have no means of knowing. The order is in terms single, and indivisible.’

Judges:

Day J

Citations:

(1906) 203 US 514

Cited by:

Cited – The Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
Cited – Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional

Updated: 14 May 2022; Ref: scu.259758

The Employers’ Liability Cases: 1908

(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was controversial.
Held: (Majority) The statute was unconstitutional. White J said: ‘Of course, if it can be lawfully done, our duty is to construe the statute so as to render it constitutional. But this does not imply, if the text of an act is unambiguous, that it may be rewritten to accomplish that purpose. Equally clear is it, generally speaking, that where a statute contains provisions which are constitutional and ethers which are not, effect may be given to the legal provisions by separating them from the illegal. But this applies only to a case where the provisions are separable and not dependent one upon the other, and does not support the contention that that which is indivisible may be divided. Moreover, even in a case where legal provisions may be severed from those which are illegal, in order to save the rule applies only where is is plain that Congress would have enacted the legislation with the unconsitutional provisions eliminated. All these principles are so clearly settled as not to be open to controversy. They were all, after a full review of the authorities, restated and reapplied in a recent case. Illinois Central Railroad v. McKendree, 203 U.S. 514, and authorities cited there.’

Judges:

White J

Citations:

(1908) 207 US 463

Citing:

Cited – Illinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .

Cited by:

Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
Cited – Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith HL 12-Jul-1990
Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional

Updated: 14 May 2022; Ref: scu.259759

Princess Olga v Weisz: 1929

Recovery was sought of items where the possessor claimed title through the Soviet State.
Held: The claim failed. the court recognised that the Soviet Republic had acquired good title to the movables in question (as well as possession of them), so as to be able to convey ownership of them to the defendants. A foreign state can bring here proceedings which qualify as patrimonial claims.

Citations:

[1929] 1 KB 718

Cited by:

Cited – Iran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 14 May 2022; Ref: scu.258522

Whitney v California: 1927

(United States) Brandeis J considered that the risk of mis-reporting of court proceedings was in fact a reason for more court reporting: ‘If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.’

Judges:

Brandeis J

Citations:

(1927) 274 US 357

Jurisdiction:

United States

Cited by:

Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Lists of cited by and citing cases may be incomplete.

International, Media

Updated: 14 May 2022; Ref: scu.245944

Re Sandrock and Others: 1945

(British Military Court in Holland ) It was submitted that this military court was a court constituted under an Order in Council and was accordingly a domestic court applying English Law.

Citations:

(1945) 13 ILR 297

Cited by:

Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Lists of cited by and citing cases may be incomplete.

International, Crime

Updated: 14 May 2022; Ref: scu.239966

JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry: 1989

Citations:

[1989] Ch 72

Jurisdiction:

England and Wales

Cited by:

Appeal from – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Lists of cited by and citing cases may be incomplete.

International, Contract

Updated: 14 May 2022; Ref: scu.239961

Sayce v Ameer Ruler Sadig Mohommed Abbasi Bahawalpur State: CA 1952

The court upheld a decision that the defendant was the ruler of Bahawalpur State which had been an independent state prior to the passing of the Indian Independence Act 1947 and the accession of that State to the Dominion of Pakistan. It was decisive that the British government had stated in a letter first that the State of Bahawalpur was not a part of His Majesty’s Dominions and that the defendant, within the limitations imposed by the arrangements contained in the establishment of Pakistan was a sovereign ruler of a State.

Citations:

[1952] 2 QB 390

Jurisdiction:

England and Wales

Cited by:

Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 14 May 2022; Ref: scu.235347

Janson v Driefontein Consolidated Mines: 1902

Lord MacNaghten said: ‘the law recognises a state of peace and a state of war, but . . it knows nothing of an intermediate state which is neither the one thing nor the other – neither peace nor war.’

Judges:

Lord Macnaghten

Citations:

[1902] AC 484

Jurisdiction:

England and Wales

Cited by:

Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 13 May 2022; Ref: scu.230006

United States v Rabinowitz: 1950

(US Supreme Court) Justice Frankfurter said: ‘It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people.’

Judges:

Justice Frankfurter

Citations:

339 U S 56 (1950)

Jurisdiction:

United States

Cited by:

Quoted – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 13 May 2022; Ref: scu.228362

The Jassy: 1906

The plaintiff took process by way of arrest in a damages action in rem against a vessel which was the property of a foreign state.
Held: The action was dismissed. No waiver of the state’s privilege could be assumed even though agents of the state, under a misapprehension, and in order to procure the release of the vessel, had given an undertaking to put in bail and had entered an absolute appearance. The action was dismissed.

Citations:

[1906] P 270

Cited by:

Cited – Aziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
Cited – Baccus SRL v Servicio Nacional Del Trigo CA 1956
The defendant organisation carried on business from Spain and was sued in England for damages for breach of a commercial contract. An appearance was entered by their solicitors in London and a consent order made for security for the organisation’s . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 13 May 2022; Ref: scu.227916

El Al Israeli Airlines Ltd v Danielowitz: 1994

(Israel) A free society respects individual differences, and ‘Only the worst dictatorships try to eradicate those differences.’

Judges:

Justice Barak

Citations:

[1994] Isrl LR 478

Cited by:

Cited – Regina v Secretary of State for Education and Employment and others ex parte Williamson and others HL 24-Feb-2005
The appellants were teachers in Christian schools who said that the blanket ban on corporal punishment interfered with their religious freedom. They saw moderate physical discipline as an essential part of educating children in a Christian manner. . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 13 May 2022; Ref: scu.223033

Cheney Brothers v Doris Silk Corporation: 1929

Judge Learned Hand refused to enjoin copying of designs for silk fabrics. If a ‘writing’ is within the scope of the constitutional clause, and Congress has not protected it, whether deliberately or by unexplained omission, it can be freely copied.

Citations:

[1929] 35 F 2d 279

Cited by:

Cited – Cadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Lists of cited by and citing cases may be incomplete.

International, Intellectual Property

Updated: 12 May 2022; Ref: scu.182301

International News Service v Associated Press: 1918

The Supreme Court introduced the concept of ‘unfair competition’.

Citations:

[1918] 248 US 215

Jurisdiction:

United States

Cited by:

Cited – Cadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, International

Updated: 12 May 2022; Ref: scu.182303

Coupland v Arabian Gulf Oil Co: QBD 1983

The plaintiff employee, injured whilst working for the defendant in Libya, sued in contract and tort. The judge held that Libyan law was the proper law of the contract, but that this was of no relevance to the claim in tort which could proceed here if the plaintiff could satisfy the double actionability rule. The defendant argued that the English double actionability rule should not be applied because there was a Libyan contract.
Hodgson J said: ‘It is clear that the ordinary rule in tort is that the law of the place where the action is being brought – the lex fori – is the law to be applied. To find an exception to that rule one has to find as issue, which is decided differently by the two jurisprudences, which is capable of being segregated and which can then be decided by an application of what, in effect by the back door, is the proper law of that issue. But before one can do that one has to have some substantial difference between the two systems of law. In this case (as I have demonstrated) the only possible candidate for segregation would be the rule in Libyan law that social security benefits are not deductible from an award of general damages. But that contention is not advanced by Mr Hartley Booth for the plaintiff (and properly so it seems to me), for that rule is, in my judgment, a rule for the quantification of damage and not a rule dealing with a head of damage. And if it is a rule dealing with the quantification of damage, then it is for the law of this country to prevail.’

Judges:

Hodgson J

Citations:

[1983] 1 WLR 1136

Jurisdiction:

England and Wales

Cited by:

Cited – Roerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
Cited – Ernst Kastner v Marc Jason, Davis Sherman, Brigitte Sherman CA 2-Dec-2004
The parties had agreed that their dispute should be resolved before the Jewish Beth Din according to Jewish substantive and procedural law. K was granted an interim freezing order. The defendant sold the asset, and K sought to assert a charge.
Cited – Cox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
Lists of cited by and citing cases may be incomplete.

Benefits, International, Damages

Updated: 12 May 2022; Ref: scu.180552

Sithole and Others v Thor Chemical Holdings Ltd and Another: CA 3 Mar 1999

A defendant wishing to plead forum non conveniens and applying for leave to appeal against summary judgment did not submit to jurisdiction merely by giving notice of intention to defend, and must do so to preserve his rights if the initial application failed.

Citations:

Gazette 03-Mar-1999, Times 15-Feb-1999

Jurisdiction:

England and Wales

International

Updated: 11 May 2022; Ref: scu.89284

Fracis Times and Co v Carr: CA 1901

To accept that a foreign judgment was in rem, the judgment must relate to an item within (actually or constructively) the jurisdiction of the court issuing the judgment at the time the order was made.

Judges:

Williams LJ

Citations:

82 LT 698, 16 TLR 405

Jurisdiction:

England and Wales

Cited by:

Appeal from – Carr v Fracis Times and Co HL 1902
The House considered a claim following seizure of ammunition by British officers in Muscat under the authority of a proclamation of the absolute ruler, the Sultan of Muscat, whose word was law.
Held: The appeal succeeded. To found an action . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 11 May 2022; Ref: scu.634757

Regina v Secretary of State for Home Affairs, Ex parte O’Brien: CA 1923

Mr O’Brien had been arrested in London under regulation 14B of the Restoration of Order in Ireland Regulations 1920 and deported to Ireland there to be interned until further order. A writ of habeas corpus was sought as against the governor of Mountjoy prison.
Held: The court accepted the affidavit evidence of the Home Secretary to the effect that Mr O’Brien was under the control of the governor that the governor was an official of the Irish Free State and not subject to the orders or directions of the Home Secretary or the British government. However, the writ of habeas corpus should issue. This was because the arrangements which existed between the Irish Free State and the United Kingdom provided grounds for believing that the Home Secretary could obtain the return of Mr O’Brien.
A statement had been made in the House of Commons on 19 March 1923 that the Irish Free State had given the British government a number of undertakings, one of which was to the effect that if it was decided that any person should not have been deported he would be released. There was therefore a reasonable prospect that the Home Secretary could exert sufficient control over the custody of Mr O’Brien to justify the issue of the writ.
Scrutton LJ said that if the court is satisfied that the body whose production is asked is not in the custody, power or control of the person to whom it is sought to address the writ, a writ of habeas corpus is not the proper remedy.

Judges:

Bankes, Scrutton, Atkin LJJ

Citations:

[1923] 2 KB 361

Jurisdiction:

England and Wales

Cited by:

Appeal from – Secretary of State for Home Affairs v O’Brien HL 1923
The Crown has no right of appeal against the grant of a discharge of a prisoner on a writ of habeas corpus.
The Home Secrtary appealed against the issue of a writ of habeas corpus against him in respect of a prisoner held in Mountjoy prison in . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 11 May 2022; Ref: scu.470684

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh: 7 Apr 1995

Austlii (High Court of Australia) International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.
Immigration – Application for permanent entry – Applicant – Married man with children in Australia – Policy requirement that applicants be of good character – Applicant convicted and imprisoned before application dealt with – Application refused because of conviction – Convention requiring governmental actions concerning children to give primary consideration to best interests of child – Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention – Convention on Rights of Child, Art 3 – Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).

Judges:

Deane, Toohey, Gaudron, McHugh JJ

Citations:

(1995) 128 ALR 353, [1995] HCA 20, (1995) 69 ALJR 423, (1995) 183 CLR 273

Links:

Austlii

Cited by:

Cited – ZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Human Rights, International, Immigration

Updated: 11 May 2022; Ref: scu.428473

Molins Plc v G D Spa: CA 29 Mar 2000

In a case where the national court which would deal with a matter was the court first seised of the matter, a stay could only be awarded where the proceedings until the proceedings were definitively pending in that court. Documents could be served by fax only if the party being served had explicitly consented to service by fax. Publication of a fax number on stationery was not sufficient to amount to consent. This rule contrasts directly with that applied to service by post.
Aldous LJ: ‘I have no doubt that service is a requirement of Italian law before proceedings become definitively pending before an Italian court. I accept that irregular service can under Italian law be validated either by appearance or an order of the judge and that such validation would be retrospective; but until such validation has been achieved the Italian court cannot be seised, as during the interim period the proceedings could not be definitively pending before the Italian court.’ and ‘In my view, seisin cannot depend upon what will happen in the future. This court is concerned to decide whether proceedings in Italy were definitively pending prior to 30 July 1999, the date when the English court was seised of the cause of action. As of that date no validation had taken place.
nce it is established, as it is, that service is required for proceedings to be definitively pending under Italian law, then the decision as to whether service took place depends upon whether service was effected as required by article IV of the Protocol to the Brussels Convention.’

Judges:

Aldous, Potter and Nourse LJJ

Citations:

Times 29-Mar-2000, [2000] 1 WLR 1741

Statutes:

Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Comercial Matters 1965 Cmd 3986

Jurisdiction:

England and Wales

Citing:

Appeal from – Molins Plc v G D Spa ChD 24-Feb-2000
In a dispute between an Italian company and British one, each sought to have the case heard in its own country. The British company asserted that the case begun in Italy had been begun after at best misrepresentation by the other company, and sought . .

Cited by:

Cited – Nussberger and Another v Phillips and Another (No 4) CA 19-May-2006
A claim was issued in London in December 2004, and then served in part in Switzerland in January 2005. One copy was removed from the bundle by a Swiss official, seeing that it had been marked ‘Nor for service out of the jurisdiction.’ That marking . .
Cited – Brown and Others v InnovatorOne Plc and Others ComC 19-Jun-2009
The claimants served proceedings by fax. The defendants denied that it was effective saying that they had not confirmed that they were instructed to accept service or that as required by the rules they had confirmed that they would accept service by . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Updated: 11 May 2022; Ref: scu.83799

Masters and Others v Leaver: CA 2 Sep 1999

A judgment obtained by default against a bankrupt in a foreign jurisdiction, was not sufficient evidence of itself, to establish that the debt which it proved had been obtained or created by fraud, or by a fraud to which they were a party. The party had been debarred from defending himself, and a finding on those terms could not mean that the debt should survive a bankruptcy here.

Citations:

Gazette 02-Sep-1999, Times 05-Aug-1999

Statutes:

Insolvency Act 1986 281 (3)

Jurisdiction:

England and Wales

Insolvency, International

Updated: 10 May 2022; Ref: scu.83466

In Re K (A Minor) (Removal From Jurisdiction: Practice): CA 2 Sep 1999

Hearings involving the temporary removal of a child to a non-Convention country needed full preparation, and must be heard by a Family Division judge. The magnitude of the risks and the irretrievable consequences required this. Care should be taken to implement the fullest safeguards, and if necessary expert evidence on the practicality of enforcing such safeguards in that country in the case of breach.

Citations:

Gazette 02-Sep-1999

Statutes:

Convention on the Civil Aspects of International Child Abduction 1980

Jurisdiction:

England and Wales

Children, International

Updated: 10 May 2022; Ref: scu.81971

In Re M and Another (Restraint Order: External Confiscation Order): CA 24 Aug 1998

Where a foreign court had made criminal confiscation order, and sought to enforce it against a party here, and the order enforcing that restraint order had been discharged by the High Court, the Court of Appeal had jurisdiction to hear an appeal against discharge.

Citations:

Times 24-Aug-1998

Statutes:

Criminal Justice Act 1988, Criminal Justice Act 1988 (Designated Countries and Territories) Order 1991 (1991 No 2873)

Jurisdiction:

England and Wales

International

Updated: 10 May 2022; Ref: scu.82039

England v Smith: CA 8 Dec 1999

A liquidator of an Australian company sought damages from a ‘world-wide’ company Arthur Andersen’ and sought in particular to examine a partner in the UK. Examination was at first refused since an English court would not make a similar order. That erred in taking a restrictive view of English insolvency practice. ‘Insolvency Law’ did not exclude other considerations such as the need for comity as shown in the section. Australian law applied to the examination of an accountant connected with insolvent Australian company.

Citations:

Gazette 08-Dec-1999, [2001] Ch 419

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Cited by:

Cited – McGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Lists of cited by and citing cases may be incomplete.

Company, International

Updated: 10 May 2022; Ref: scu.80333

Dubai Islamic Bank Pjsc v Paymentech Merchant Services Inc: QBD 24 Nov 2000

The place of arbitration, the juridical seat, was necessarily and inherently established at the time when an arbitration began, and could not subsequently be moved, save with the consent of the parties. Until the point where the arbitration commenced, the juridical seat could be established as required under the Act by looking at all the circumstances, but to allow it to be reviewed and changed after commencement would allow it to become peripatetic.

Citations:

Gazette 07-Dec-2000, Times 24-Nov-2000

Statutes:

Arbitration Act 1996 67 68 69

Arbitration, International

Updated: 10 May 2022; Ref: scu.80152

Application Of The Convention On The Prevention And Punishment Of The Crime Of Genocide (Bosnia And Herzegovina V. Serbia And Montenegro): ICJ 3 May 1993

The ICJ Court may make interim orders despite doubts on status of parties and facts.

Citations:

Times 03-May-1993

Links:

ICJ

Statutes:

Convention On The Prevention And Punishment Of The Crime Of Genocide 48

Human Rights, International

Updated: 10 May 2022; Ref: scu.79497

Britten Norman Ltd (In Liquidation) v State Ownership Fund of Romania and Another: ChD 27 Jul 2000

A letter of guarantee specified no place of payment. The debtor’s obligation to seek out the creditor had no relevance in this situation, and the stipulation of an account in Romania for the payment was merely administrative. The obligation to pay crystallised only when the demand was made in accordance with the contract, and the place for payment was the place where the demand was made.

Citations:

Gazette 27-Jul-2000, Times 03-Aug-2000

Jurisdiction:

England and Wales

International, Arbitration

Updated: 10 May 2022; Ref: scu.78658

L Albert and Son v Armstrong Rubber Co: 1949

(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove the earnings he would have received from the machines had they been in conformity with the contract. Nor did the defendant prove that the plaintiff would not have recovered his expenditure had the contract been performed. It appears that it was a case where it was difficult to know what the result of the contract would have been.
Held: Learned Hand CJ discussed a plaintiff’s choice of damages claim for breach of contract: ‘In cases where the venture would have proved profitable to the promisee there is no reason why he should not recover his expenses. On the other hand, on those occasions in which the performance would not have covered the promisee’s outlay, such a result imposes the risk of the promisee’s contract upon the promisor. We cannot agree that the promisor’s default in performance should under this guise make him an insurer of the promisee’s venture; yet it does not follow that the breach should not throw upon him the duty of showing that the value of the performance would in fact have been less than the promisee’s outlay. It is often very hard to learn what the value of the performance would have been; and it is a common expedient, and a just one, in such situations to put the peril of the answer upon that party who by his wrong has made the issue relevant to the rights of the other. On principle, therefore, the proper solution would seem to be that the promisee may recover his outlay in preparation for the performance, subject to the privilege of the promisor to reduce it by as much as he can show that the promisee would have lost, if the contract had been performed.’

Judges:

Learned Hand CJ

Citations:

(1949) 178 F. 2d 182

Jurisdiction:

United States

Cited by:

Cited – Parker and Another v SJ Berwin and Co and Another QBD 17-Dec-2008
The claimants sought damages from their former solicitors. They set out to purchase a football club, expending substantial sums for the purpose, relying on the defendants’ promised provision of service in finding and arranging the funding. They said . .
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Cited – Bowlay Logging Limited v Domtar Limited 1978
(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted . .
Cited – C and P Haulage v Middleton CA 27-Jun-1983
The parties entered into an agreement allowing the defendant to occupy the plaintiff’s land. They had disputed whether it was a licence or a lease. The occupier had expended sums on improving the premises, but had then been summarily ejected. He now . .
Lists of cited by and citing cases may be incomplete.

International, Contract, Damages

Updated: 10 May 2022; Ref: scu.278876

El Al Israel Airlines Ltd v Tsui Yuan Tseng: 16 Sep 1997

(US Supreme Court) The Warsaw Convention should be applied in a consistent manner internationally, without reference to the local laws of the high contracting parties.

Citations:

(1999) 525 US 155, 919 FSupp 155, 147 ALRFed 783, 65 USLW 2817, 142 L Ed 2d 576, 119 SCt 662, 122 F3d 99

Links:

USSC

Statutes:

Warsaw Convention 29

Jurisdiction:

England and Wales

Cited by:

Cited – Barclay v British Airways Plc CA 18-Dec-2008
The claimant sought damages for personal injury. The airline said that the injury was not the result of an accident within article 17.1. She was walking down the aisle and slipped.
Held: The appeal was dismissed. The meaning of ‘accident’ . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Transport, International

Updated: 10 May 2022; Ref: scu.279097

Minquiers and Ecrehos (France v United Kingdom) (1951-1953): ICJ 17 Nov 1953

The Treaty of Calais of 1360 contained a clause confirming that the King of England shall have and hold all the islands which he ‘now holds’

Citations:

[1953] ICJ Rep 47

Links:

ICJ

Cited by:

Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional

Updated: 09 May 2022; Ref: scu.228076

Crawford v Washington: 2004

(US Supreme Court) The Court examined the historical background to the Sixth Amendment.
Held: The principal evil against which it was directed ‘was the civil-law mode of criminal procedure, and particularly its use of ex parte examinations as evidence against the accused.’ Hence it was aimed at an accuser who made a formal statement to government officers.

Judges:

Scalia J

Citations:

(2004) 541 US 36

Jurisdiction:

United States

Cited by:

Cited – D (A Minor), Regina (on the Application of) v Camberwell Green Youth Court HL 27-Jan-2005
The defendant challenged the obligatory requirement that evidence given by a person under 17 in sex or violent offence cases must normally be given by video link.
Held: The purpose of the section was to improve the quality of the evidence . .
Lists of cited by and citing cases may be incomplete.

International, Criminal Practice

Updated: 09 May 2022; Ref: scu.222103

Government of India v Quattrocchi: CA 20 Jan 2004

The defendant faced trial in India. The prosecutor obtained an order here restraining disposal of assets here pending the outcome of the criminal trial.
Held: Where the conditions were met, an order could properly be made. The defendant, having been accused of fraud, had transferred 3 million pounds to a bank in England. Proceedings had been instituted and by a designated country. A confiscation would be available to the court in India, and a restraint order was proper here.

Judges:

Lord Philips of Worth Matravers, NT, Buxton, Keene LJJ

Citations:

Times 28-Jan-2004

Statutes:

Criminal Justice Act 1988 76

Jurisdiction:

England and Wales

Criminal Practice, International

Updated: 09 May 2022; Ref: scu.193418

The Case of the SS “Lotus”: PCIJ 1927

Jurisdiction is primarily territorial in both international and domestic law: ‘the first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts ‘outside their territory’, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable.’

Citations:

(1927) PCIJ Series A – No 10

Jurisdiction:

England and Wales

Cited by:

Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 09 May 2022; Ref: scu.591914

F Hoffmann-La Roche Ltd v Empagran SA: 14 Jun 2004

United States Supreme Court – the Supreme Court reflected on matters of comity in relation to US competition law in the Sherman Act, saying that a state has jurisdiction to prescribe law with respect to ‘(a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory’.
Breyer JA said: ‘this court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. . . This rule of construction reflects principles of customary international law – law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of Foreign Relations Law of the United States sections 403(1), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another state); Murray v Schooner Charming Betsy, 2 Cranch 64, 118 (1804) (‘[A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains’);
This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmony-a harmony particularly needed in today’s highly interdependent commercial world.
No one denies that America’s antitrust laws, when applied to foreign conduct, can interfere with a foreign nation’s ability independently to regulate its own commercial affairs. But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused.
But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiff’s claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation’s ability independently to regulate its own commercial affairs. But, unlike the former case, the justification for that interference seems insubstantial. See Restatement section 403(2) (determining reasonableness on basis of such factors as connections with regulating nation, harm to that nation’s interests, extent to which other nations regulate, and the potential for conflict). Why should American law supplant, for example, Canada’s or Great Britain’s or Japan’s own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies?’

Citations:

159 L Ed 2d 226, [2004] USSC 238, 542 US 155, 124 SCt 2359

Links:

Worldlii

Jurisdiction:

United States

Cited by:

Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Lists of cited by and citing cases may be incomplete.

International

Updated: 09 May 2022; Ref: scu.591915