Skelton v Collins: 7 Mar 1966

(High Court of Australia) Damages – Personal Injuries – Loss of earning capacity – Loss of expectation of life – Loss of amenities during reduced life span – Pain and suffering – Plaintiff rendered permanently unconscious by injuries – Basis of assessment.
Precedent – Decisions of House of Lords – Applicability – High Court – Other Australian courts.
Windeyer J said: ‘The next rule that, as I see the matter, flows from the principle of compensation is that anything having a money value which the plaintiff has lost should be made good in money. This applies to that element in damages for personal injuries which is commonly called ‘loss of earnings ‘. The destruction or diminution of a man’s capacity to earn money can be made good in money. It can be measured by having regard to the money that he might have been able to earn had the capacity not been destroyed or diminished. . what is to be compensated for is the destruction or diminution of something having a monetary equivalent . . I cannot see that damages that flow from the destruction or diminution of his capacity (to earn money) are any the less when the period during which the capacity might have been exercised is curtailed because the tort cut short his expected span of life. We should not, I think, follow the English decisions in which in assessing the loss of earnings the ‘lost years’ are not taken into account.’

Kitto, Taylor, Menzies, Windeyer and Owen JJ
(1966) 115 CLR 94, [1966] HCA 14
Austlii
Australia
Citing:
Not FollowedOliver v Ashman CA 1961
The rule that loss of earnings, in the years lost to an injured plaintiff whose life expectancy had been shortened, were not recoverable, was still good law.
Pearce LJ summarised the authorities: ‘The Law Reform Miscellaneous Provisions Act . .

Cited by:
FollowedPickett v British Rail Engineering HL 2-Nov-1978
Lost Earnings claim Continues after Death
The claimant, suffering from mesothelioma, had claimed against his employers and won, but his claim for loss of earnings consequent upon his anticipated premature death was not allowed. He began an appeal, but then died. His personal representatives . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Constitutional

Updated: 30 November 2021; Ref: scu.199760

Robertson v The Balmain New Ferry Company Ltd: PC 10 Dec 1909

High Court of Australia – The Plaintiff paid a penny on entering the wharf to stay there till the boat should start and then be taken by the boat to the other side. The Defendants were admittedly always ready and willing to carry out their part of this contract. Then the Plaintiff changed his mind, and wished to go back. The rules as to the exit from the wharf by the turnstile required a penny for any person who went though. This the Plaintiff refused to pay, and he was by force prevented from going through the turnstile. He then claimed damages for assault and false imprisonment,
Otherwise: Robinson v Balmain New Ferry Co Ltd

[1909] UKPC 1, [1909] UKPC 58, [1910] AC 295, [1909] UKLawRpAC 62
Bailii, Bailii, Commonlii
Australia
Cited by:
CitedSecretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .

Lists of cited by and citing cases may be incomplete.

Transport, Contract, Torts – Other

Updated: 29 November 2021; Ref: scu.245719

Belgian Grain and Produce Co Ltd v Cox and Co (France) Ltd: CA 1919

Although the Court had jurisdiction, ‘it ought to be exercised with great caution, which indicates that there must be something exceptional in the facts to justify the making of the order’.

Bankes, LJ Warrington and Scrutton, Ljj
[1919] WN 317
England and Wales
Cited by:
ApprovedNykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Costs

Updated: 29 November 2021; Ref: scu.181342

Teper v The Queen: PC 1952

The defendant was charged with arson of his own shop. A woman had been heard to shout to a passing motorist ‘Your place burning and you going away from the fire’.
Held: the defendant’s alibi could not be contradicted by the evidence of a policeman that he had heard the woman. The weakness of hearsay evidence is that its quality cannot be directly tested in court: ‘The truthfulness and accuracy of the person whose words are spoken by another witness cannot be tested by cross-examination and the light which his demeanour would throw on his testimony is lost.’ A statement admitted under the doctrine of res gestae with words which ‘if not absolutely contemporaneous with the action or event, [are] …. so closely associated with it, in time, place and circumstances, that they are part of the thing being done, and so an item or part of real evidence and not merely a reported statement’. However: ‘For identification purposes in a criminal trial the event with which the words sought to be proved must be so connected as to form part of the res gestae, is the commission of the crime itself . . . ‘
As to the rule that words may be proved when they form part of the res gestae, it appears to rest ‘ultimately on two propositions, that human utterance is both a fact and a means of communication, and that human action may be so interwoven with words that the significance of the action cannot be understood without the correlative words, and the dissociation of the words from the action would impede the discovery of truth. But the judicial application of these two propositions, which do not always combine harmoniously, has never been precisely formulated in a general principle.’

Lord Normand
[1952] AC 480
Citing:
CitedRegina v Gibson 1887
Evidence had been wrongly admitted. Lord Coleridge CJ said: ‘It is clear that a verdict so obtained in a civil case would not formerly have been allowed to stand, because until the passing of the Judicature Acts the rule was that if any bit of . .

Cited by:
CitedRegina v Hayter HL 3-Feb-2005
The House considered the principle that the confession of a defendant is inadmissible in a joint criminal case against a co-defendant. In a trial for murder, one party was accused of requesting a middleman to arrange for the murder by a third party. . .
ApprovedRegina v Kearley HL 3-Jun-1992
Telephone calls which were made to the defendant’s phone asking for drugs, but made after the arrest of the defendant for supplying drugs were inadmissible as hearsay. They were adduced to prove, by implication, the fact that he, as an occupier of . .
CitedGrant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Updated: 28 November 2021; Ref: scu.222549

Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor): PC 1 Dec 1975

The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable only by a panel appointed by the Governor-General. The appellants each appealed convictions by the courts complaining that Magistrates had had assigned to them cases properly only triable by High Court judges, that the system infringed the duty to provide an open system of trial, and that the review panels included non-judiciary exercising judicial duties, infringing the doctrine of separation of powers.
Held: Though the courts themselves were validly constituted, certain powers which under the Constitution were reserved to High Court judges had been wrongly assigned to magistrates. The provisions allowing hearings in camera were valid, since there was sufficient reason in the need for public safety to support them. The review panel effectively set terms of imprisonment, a function which was assigned under the Constitution to the judiciary. The creation of the panel was an attempt by the executive to exercise the duties of the judiciary, and was unconstitutional. Diplock L: ‘In the field of punishment for criminal offences, the application of the basic principle of separation of legislative, executive and judicial powers that is implicit in a constitution on the Westminster model makes it necessary to consider how the power to determine the length and the character of a sentence which imposes restrictions on the personal liberty of the offender is distributed under these three heads of power. … In the exercise of its legislative power, Parliament may, if it thinks fit, prescribe a fixed punishment to be inflicted upon all offenders found guilty of the defined offence – as, for example, capital punishment for the crime of murder. Or it may prescribe a range of punishments … What Parliament cannot do, consistently with the separation of powers, is to transfer from the judiciary to any executive body whose members are not appointed under Chapter VII of the Constitution, a discretion to determine the severity of the punishment to be inflicted upon an individual member of a class of offenders.’ Elements of the statute providing for mandatory life sentences to be imposed by lower courts were void, but the provisions were severable, and the remainder were valid for superior courts. In each case the convictions stood, but the cases were remitted to the Court of Appeal of Jamaica for re-sentence. ‘[constitutions] differ fundamentally in their nature from ordinary legislation . . . They embody what is in substance an agreement reached between representatives of the various shades of political opinion in the state as to the structure of the organs of government through which the plenitude of the sovereign power of the state is to be exercised.’ The Constitution established a regime which provided, in respect of the higher Jamaican judiciary ‘that their independence from political pressure by Parliament or by the executive in the exercise of their judicial functions shall be assured by granting to them such degree of security of tenure in their office as is justified by the importance of the jurisdiction that they exercise.’ This independence was assured by the provisions enacting that ‘They can only be removed from office upon the advice of the Judicial Committee of Her Majesty’s Privy Council in the United Kingdom given on a reference made upon the recommendation of a tribunal of inquiry consisting of persons who hold or have held high judicial office in some part of the Commonwealth.’

Diplock L, Dilhorne Viscount (Dissenting), Simon of Glaisdale L, Edmund-Davies, Fraser of Tullybelton L (dissenting)
[1976] 1 All ER 1976, [1976] 2 WLR 366, (1975) 119 SJ 864, [1976] Crim LR 124, [1977] AC 195
(Jamaica) Gun Courts Act 1974
England and Wales
Citing:
CitedAttorney General for Ontario v Attorney General for Canada PC 1924
A provincial legislature was said to have exceeded its powers and contravened the British North America Act.
Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges . .
CitedAttorney General v Antigua Times Ltd PC 1975
The Board should not seek to determine questions not directly raised in the appeal before it. . .
CitedLiyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
CitedLadore v Bennett PC 1939
Parliament cannot sidestep a restriction in the constitution by a colourable device. . .
CitedDeaton v Attorney General and Revenue Commissioners 1963
(Supreme Court of Ireland) The court looked at a law in which the choice of alternative penalties was left to the executive: ‘There is a clear distinction between the prescription of a fixed penalty and the selection of a penalty for a particular . .
CitedAttorney General for Alberta v Attorney General for Canada PC 1947
The Board considered the severability of statutory provisions viewed for constitutionality: ‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as . .
CitedAttorney General of Australia v The Queen and the Boilermakers’ Society of Australia; Kirby v The Queen and Boilermakers’ Society of Australia PC 1957
When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if . .

Cited by:
CitedDirector of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
CitedBrowne v The Queen PC 6-May-1999
(St Christopher and Nevis) The appellant had been convicted of murder whilst still a youth. He had accordingly been sentenced to be detained ‘during [the Governor-General’s] pleasure; and if so sentenced he shall be liable to be detained in such . .
CitedReyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
CitedRegina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
CitedIndependent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Updated: 28 November 2021; Ref: scu.211405

Smith v Canadian Pacific Railway Company: 1963

(Canada – Saskatchan) A police officer had retired through injury and sought damages. The defendant sought to deduct his pension.
Held: His police pension was to be apportioned so that the portion attributable to his own contributions were to be ignored entirely, whereas the portion attributable to his employers’ contributions was to be taken into account.

(1963) 41 DLR (2d) 249
Canada
Cited by:
CitedParry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 23 November 2021; Ref: scu.237515

Jones v Gleeson: 1965

(Australia) When a policeman who had retired retired through injury sought damages for that injury, the pension he received as a result of his retirement was to be ignored entirely: ‘In recent years, however, the relevance or otherwise to the issue of damages of the fact that an injured person is entitled to a pension has been considered by this Court on several occasions (see Paff v. Speed; The National Insurance Co. of New Zealand, Ltd. v. Espagne, and Graham v. Baker n) and a very different view has been taken from that which is expressed in the majority judgments in Browning’s case.’

(1965) 39 ALJR 258, [1966] ALR 235
Citing:
CitedPaff v Speed 6-Apr-1961
(High Court of Australia) ‘The first consideration is what is the nature of the loss or damage which the plaintiff says he has suffered.’
Damages – Personal injuries – Matters to be considered in reduction of damages – Plaintiff policeman at . .

Cited by:
CitedParry v Cleaver CA 9-May-1967
The plaintiff policeman was hit by a car whilst he was on traffic duty. When he claimed damages in negligence the defendant sought to have deducted from his award an amount received by way of additional pension payments received which had been . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Personal Injury

Updated: 23 November 2021; Ref: scu.237511

Steedman v William R Drinkle and Another: PC 21 Dec 1915

(Saskatchewan) Land in Canada was purchased under an agreement, where the price was to be paid by one initial payment and annual instalments. If the purchaser was to default on any payment, the vendor was free to cancel the agreement and to retain, as liquidated damages, the payments already made. It was also provided that time was to be considered as of the essence of the contract. The first deferred payment was not made on the due date. The vendor gave notice cancelling the agreement. Three weeks after the due date the purchaser tendered the amount due, which was refused. He thereupon brought an action claiming specific performance and relief from forfeiture of the amount already paid.
Held: The Board upheld the decision of the Canadian Court, that the stipulation as to the retention of the sums already paid was a penalty. But the Board declined to grant specific performance.
Viscount Haldane said:
‘Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance where justice requires it, even though literal terms as to stipulation as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of the bargain’.
And ‘As to the relief from forfeiture, their Lordships think that the Supreme Court was right in holding, for the reasons assigned in the former decision of this Board, that the stipulation in question was one for a penalty, against which relief should be given on proper terms. But as regards specific performance they are of opinion that the Supreme Court was wrong in reversing the judgment of Newlands J. Courts of Equity, which look at the substance as distinguished from the letter of agreements, no doubt exercise an extensive jurisdiction which enables them to decree specific performance in cases where justice requires it, even though literal terms of stipulations as to time have not been observed. But they never exercise this jurisdiction where the parties have expressly intimated in their agreement that it is not to apply by providing that time is to be of the essence of their bargain. If, indeed, the parties, having originally so provided, have expressly or by implication waived the provision made, the jurisdiction will again attach.’

Viscount Haldane
[1915] UKPC 71, [1916] AC 275
Bailii
Canada

Commonwealth, Land, Equity

Updated: 22 November 2021; Ref: scu.423780

Regina v Rowbotham and others: 1988

Ontario Court of Appeal – ‘In our view a trial judge confronted with an exceptional case where legal aid has been refused and who is of the opinion that representation of the accused by counsel is essential to a fair trial may, upon being satisfied that the accused lacks the means to employ counsel, stay the proceedings against the accused until the necessary funding of counsel is provided.’ Although they base that upon the charter of the state, they were of the view that the trial judge had the power to do that even before the advent of the charter; in other words, under the Common Law.’

Judges of Appeal Martin, Corey and Grange
(1988) 41 CCC,(3d) 1
Cited by:
CitedRegina v Dadshani 8-Feb-2008
Ontario – Superior Court of Justice – proceeding in the nature of a Rowbotham or Fisher application to secure state funding for the defences of the accused who are facing charges of first degree murder. . .
CitedP, Regina v Misc 18-Mar-2008
Crown Court at Harrow – The Court stayed the criminal proceedings because the defendant was unable to retain counsel because of what was said to be a failure to provide adequate legal aid fees in criminal confiscation proceedings. . .
CitedIn re Brownlee for Judicial Review SC 29-Jan-2014
The appellant challenged the course taken in his criminal trial after his legal team had withdrawn citing professional embarassment. No replacement team could be found willing to act in a complicated sentencing matter because of the reduced fixed . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Aid, Criminal Practice

Updated: 21 November 2021; Ref: scu.541393

General Construction Ltd v Chue Wing and Co Ltd and Another: PC 15 Oct 2013

(Mauritius) A high crane had fallen during a storm onto a neighbouring building. The court considered whether under the Mauritian law of faute the accident had occurred through force majeure.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Carnwath, Lord Toulson
[2013] UKPC 30
Bailii

Commonwealth, Negligence

Updated: 21 November 2021; Ref: scu.516493

Wang v Commissioner of Inland Revenue: PC 19 Oct 1994

(Hong Kong) At first instance the judge found that the deputy commissioner lacked jurisdiction to make two determinations since he had not done so within a reasonable time required by the imperative language of the statute. The Court of Appeal reversed the decision.
Held: The delay on a Commissioners decision took it outside the allowable ‘reasonable time’ but the decision remained valid. The Board considered the distinction between two types of regulatory requirements, (1) requirements of a purely regulatory character where a failure to comply would never invalidate the act, and (2) requirements where a failure to comply would not invalidate an act provided that there was substantial compliance.
Lord Slynn of Hadley said: ‘their Lordships consider that when a question like the present one arises – an alleged failure to comply with a time provision – it is simpler and better to avoid these two words ‘mandatory’ and ‘directory’ and to ask two questions. The first is whether the legislature intended the person making the determination to comply with the time provision, whether a fixed time or a reasonable time. Secondly, if so, did the legislature intend that a failure to comply with such a time provision would deprive the decision maker of jurisdiction and render any decision which he purported to make null and void?
In the present case the legislature did intend that the Commissioner should make his determination within a reasonable time . . If the Commissioner failed to act within a reasonable time he could be compelled to act by an order of mandamus. It does not follow that his jurisdiction to make a determination disappears the moment a reasonable time has elapsed. If the court establishes the time by which a reasonable time is to be taken as having expired, which will depend on all the circumstances, including factors affecting not only the taxpayer but also the Inland Revenue, it would be surprising if the result was that the commissioner had jurisdiction to make the determination just before but not just after that time. Their Lordships do not consider that that is the effect of a failure to comply with the obligation to act within a reasonable time in the present legislation. Such a result would not only deprive the government of revenue, it would also be unfair to other taxpayers who need to shoulder the burden of government expenditure; the alternative result (that the commissioner continues to have jurisdiction) does not necessarily involve any real prejudice for the taxpayer in question by reason of the delay.’

Lord Slynn of Hadley
Gazette 19-Oct-1994, [1994] 1 WLR 1286, [1995] 1 All ER 367
England and Wales
Citing:
FollowedLondon and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .

Cited by:
CitedCharles v The Judicial and Legal Service Commission and The Disciplinary Tribunal PC 19-Jun-2002
PC (Trinidad and Tobago) Disciplinary proceedings had commenced against the appellant, the chief magistrate, but the time limits had not been followed. The appellant argued that the time limits were mandatory. . .
CitedRegina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
CitedNorth Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
CitedAbdi, Regina v CACD 31-Jul-2007
The appellant had been convicted of a sexual assault on a boy, and recommended for deportation on completion of his sentence. He had not however been served with notice of the possibility of such an order, as required by section 6 of the 1971 Act, . .

Lists of cited by and citing cases may be incomplete.

Income Tax

Updated: 20 November 2021; Ref: scu.90290

Pricewaterhousecoopers v Saad Investments Company Ltd: PC 10 Nov 2014

(Bermuda) The Board was asked as to the interpretation of Bermudan statutes, and whether the the respondents’ auditors had standing to challenge the winding up order in answer to an appliation by the liquidators.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2014] UKPC 35, [2014] WLR(D) 475
Bailii, WLRD, Bailii Summary
England and Wales
Cited by:
See AlsoSingularis Holdings Ltd v Pricewaterhousecoopers PC 10-Nov-2014
(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers. . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 November 2021; Ref: scu.538670

Macmillan and Company Limited v K and J Cooper: PC 14 Dec 1923

(Bombay)

[1923] UKPC 90
Bailii
England and Wales
Citing:
CitedWalter v Lane HL 6-Aug-1900
Reporter of Public Speech Owns Copyright I
A reporter attended a speech by Lord Rosebery. His report of the speech was republished in the Times after another journalist who had not been present published a verbatim copy. He claimed a copyright in the work he produced.
Held: The first . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 19 November 2021; Ref: scu.422801

MacFoy v United Africa Company Limited (West Africa): PC 27 Nov 1961

Service Outside Rules – Irregular not a Nullity

The act of delivery of a statement of claim in the long vacation of the Supreme Court of Sierra Leone was only voidable and not void; it was only an irregularity and not a nullity.
Lord Denning said: ‘The defendant here sought to say, therefore, that the delivery of the statement of claim in the long vacation was a nullity and not a mere irregularity. This is the same as saying that it was void and not merely voidable. The distinction between the two has been repeatedly drawn. If an act is void, then it is in law a nullity. It is not only bad, but incurably bad. There is no need for an order of the court to set it aside. It is automatically null and void without more ado, though it is sometimes convenient to have the court declare it to be so. And every proceeding which is founded on it is also bad and incurably bad. You cannot put something on nothing and expect it to stay there. It will collapse.’ No Court had ever attempted to lay down a decisive test for distinguishing between nullities and irregularities, but a useful one was whether, if ‘the other side waived the flaw in the proceedings or took some fresh step after knowledge of it . . [c]ould he afterwards in justice complain of the flaw?’ If the other side could complain despite the subsequent step, the ‘flaw’ was a nullity.

Lord Denning
[1961] UKPC 49, [1962] AC 152, [1961] 3 All ER 1169
Bailii
Commonwealth

Litigation Practice

Updated: 19 November 2021; Ref: scu.445332

Cukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd: PC 29 Jul 2013

(British Virgin Islands)

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath
[2013] UKPC 25
Bailii
Citing:
See AlsoCukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 5-May-2009
(British Virgin Islands) Shares in two companies incorporated under the BVI Business Companies Act 2004, Cukurova Finance International Ltd and Cukurova Telecoms Holdings Ltd were provided as security under two sets of equitable mortgages, one set . .
See AlsoCukurova Finance International Ltd and Others v Alfa Telecom Turkey Ltd PC 23-May-2012
(British Virgin Islands) Interlocutory issue as to who should manage the affairs of the Turkcell mobile telephone business pending the Board’s final adjudication (after a hearing which should take place this autumn) on the rights and wrongs of what . .
See AlsoCukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 30-Jan-2013
(British Virgin Islands) The claimant sought to recover shareholdings given in charge.
Held: There was an event of default, which entitled ATT to accelerate the loan and to appropriate – or forfeit – the charged shares, but that relief against . .
See AlsoCukurova Finance International Ltd and Another v Alfa Telecom Turkey Ltd PC 9-Jul-2013
British Virgin Islands . .

Cited by:
CitedCukurova Holding As v Sonera Holding Bv PC 13-May-2014
(British Virgin Islands) The appellant sought to have set aside the Final Decision of an arbitrator. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 18 November 2021; Ref: scu.514149

Lower Hutt City Council v Bank: 1974

(New Zealand Court of Appeal) The court was asked about the validity of a decision of a local council where it was said that a councillor had already made up his mind: ‘It cannot be doubted that one of the cardinal principle of natural justice, and one of very wide application, is that in the absence of statutory authority or consensual agreement or the operation of necessity, no man can be a judge in his own cause. But again, the extent to which this fundamental principle applies must be governed by the relevant circumstances, including, especially, the statutory provisions relating to the function. It is a patent consequence of the rule that no man can be a judge in his own cause that where the circumstances reasonably indicate the likelihood of bias on the part of the adjudicator, he will, unless one of the exceptions stated above apply, be disqualified. It is now necessary to see, in the light of the applicable circumstances, to what extent these rules apply to a council dealing with objections to a proposed street stopping. It is obvious that before a council reaches the stage of deciding to put in motion the machinery for stopping, much investigation will have been undertaken and many decisions made. There will have been a resolution passed by the council. A fair minded and responsible person might well think that when a council have reached that stage of decision, a real likelihood of bias must be seen to be present, because the council must to a large extent have pre-determined the issue. Nevertheless, the Legislature, well-knowing this, has designedly left it to councils to determine at the next stage whether objections should be sustained. So something less than the scrupulous state of impartiality and its appearance required of Courts of justice is required of councils in these circumstances. We think that the state of impartiality which is required is the capacity in a council to preserve a freedom, notwithstanding earlier investigations and decisions, to approach their duty of inquiring into and disposing of the objections without a closed mind, so that if considerations advanced by objectors bring them to a different frame of mind they can, and will go back on their proposals … ‘

McCarthy P
[1974] 1 NZLR 545
England and Wales
Cited by:
CitedIsland Farm Development Ltd, Regina (on the Application of) v Bridgend County Borough Council Admn 25-Aug-2006
The claimant applied for a review of a decision by the respondent council not to sell it land.
Held: The challenge failed. The councillors had acted in accordance with advice given to them by officers, and ‘the committee was concerned only to . .
CitedPartingdale Lane Residents’ Association, Regina (on the Application of) v Barnet London Borough Council Admn 2-Apr-2003
Complaint was made that a Councillor had closed his mind to any arguments and had predetermined the decision on a proposed road re-opening order.
Held: The application was allowed. Councillor Coleman had himself gone beyond a legitimate . .

Lists of cited by and citing cases may be incomplete.

Local Government

Updated: 17 November 2021; Ref: scu.244705

The Bulli Coal Mining Company v Patrick Hill Osbourne and Another: PC 1899

(New South Wales)

[1899] AC 351, [1899] UKPC 13
Bailii
Australia
Cited by:
CitedBeaman v ARTS Ltd CA 1949
The italian plaintiff had left Egland in 1935 leaving certain valuables with the defendants for safe keeping. During the war, the property was released to the authorities as alien property, who, informed by the defemdant that they were of no value, . .
MentionedSecretary of State for Communities and Local Government and Another v Welwyn Hatfield Borough Council SC 6-Apr-2011
The land-owner had planning permission to erect a barn, conditional on its use for agricultural purposes. He built inside it a house and lived there from 2002. In 2006. He then applied for a certificate of lawful use. The inspector allowed it, and . .

Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 17 November 2021; Ref: scu.194818

Half Moon Bay Limited v Crown Eagle Hotels Limited: PC 20 May 2002

Strips of land lay between the two hotels operated by the parties. Restrictive covenants had been entered into by the respondent’s predecessors in title. The claimant brought proceedings to enforce the restrictions on the use of the land. An earlier case had been compromised on condition that the covenants be entered on the registers. This had not happened, and the land had been sold on twice to the present owners.
Held: Questions of annexation only arose on a transfer of the property benefited. The burden of a covenant does not run with freehold land at common law. A negative covenant may be enforced against a successor in title in equity, but only for the benefit of land of the covenantee or his successor in title. An original covenantee, therefore, cannot enforce such a covenant against a successor in title of the covenantor unless he retains the ownership of land which is capable of enjoying the benefit of the covenant. Jamaica adopted a Torrens style for land registration. The registration of the covenants after the land had been transferred was ineffective, since they ceased to bind the land on transfer unless registered.

Lord Nicholls of Birkenhead, Lord Browne-Wilkinson, Lord Millett, Sir Murray Stuart-Smith, Sir Christopher Staughton
[2002] UKPC 24, (Appeal No 31 of 2000)
PC, PC, PC, Bailii
Restrictive Covenants (Discharge and Modification) Act 1960 (Jamaica)
England and Wales
Citing:
CitedLondon County Council v Allen 1914
A landowner applied to the plaintiffs for their sanction to a new street scheme. It was given but subject to his covenant to keep certain land unbuilt upon. He gave the covenant. The plaintiffs themselves had no land in the area capable of . .

Lists of cited by and citing cases may be incomplete.

Registered Land, Land, Commonwealth

Updated: 15 November 2021; Ref: scu.171198

French v Public Prosecutor of The Central Department of Investigation and Prosecution In Lisbon Portugal: PC 13 Jun 2013

(Gibraltar) Mr French appealed against refusal of his request to have set aside an order for his extradition under a European Arrest Warrant. He argued that (in general) the court had failed to deal with the matter within the mandatory time limits.
Held: The appeal failed. The submissions were unsound: ‘Section 12(6) of the Act clearly identifies the consequence of a failure to decide whether to execute the warrant within 60 days of a person’s arrest. The consequence is not his entitlement to release. It is that an obligation is cast upon the court to make a direction to the Governor. The subsection does not precisely identify the time within which the court’s direction should be made but it is reasonable for the appellant to assert, including by reference to Article 17(4) of the Decision, that it should be made immediately. On that basis the court committed what, in the light of the time-scale, was a minor breach of its obligation to make the direction. But, again, there is nothing in section 12(6) to indicate that the consequence of its breach was the appellant’s entitlement to release.’

Lord Hope, Lady Hale, Lord Kerr, Lord Wilson, Lord Hughes
[2013] UKPC 16
Bailii
Citing:
CitedCriminal proceedings against Pupino ECJ 16-Jun-2005
ECJ (Grand Chamber) Police and judicial cooperation in criminal matters – Articles 34 EU and 35 EU – Framework Decision 2001/220/JHA – Standing of victims in criminal proceedings – Protection of vulnerable . .
CitedAssange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
ApprovedDundon v The Governor of Cloverhill Prison 19-Dec-2005
(Supreme Court of Ireland) The UK had issued a European arrest warrant in relation to the appellant. On 11 February 2004 he was arrested in Ireland and remanded in custody. 93 days later, following various adjournments of which some had been at his . .
CitedChahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Extradition

Updated: 14 November 2021; Ref: scu.510850

Rex v Earl of Crewe, Ex parte Sekgome: CA 2 May 1910

By an Order in Council, dated May 9,1891, made ‘in exercise of the powers by the Foreign Jurisdiction Act, 1890, or otherwise in Her Majesty vested,’ the High Commissioner for South Africa was authorized to exercise in the Bechuanaland Protectorate the powers of Her Majesty, and to do all such things ‘as are lawful,’ and to provide by proclamation for the administration of justice and generally for the peace, order, and good government of all persons within the Protectorate, including the prohibition and punishment of all acts tending to disturb the public peace.
One Sekgome, who claimed to be the chief of ‘a native tribe in the Protectorate’, was detained in custody at a place within the Protectorate by virtue of a proclamation authorizing his detention, and expressed to have been made by the High Commissioner, under the powers conferred on him by the Order in Council, on the ground that the detention of Sekgome was necessary for the preservation of peace within the Protectorate.
On an application by Sekgome for a writ of habeas corpus to the Secretary of State for the Colonies:
Held (affirming an order of the Divisional Court dismissing the application), that the Protectorate was a foreign country in which His
Majesty had jurisdiction within the meaning of the Foreign Jurisdiction
Act, 1890; that the proclamation was validly made under the powers conferred by the Order in Council; and that the detention of Sekgome was, therefore, lawful.
Held, also, by Vaughan Williams and Kennedy L.JJ., that the Protectorate was not a ‘foreign dominion of the Crown ‘ within s. 1 of
the Habeas Corpus Act, 1862.
Quaere, whether, in any event, the Secretary of State for the Colonies was a person having the custody of Sekgome to whom a writ of habeas corpus could be issued.
The Bechuanaland Protectorate in South Africa was ‘under His Majesty’s dominion’ in the sense of power and jurisdiction, but is not under his dominion in the sense of territorial dominion. A protectorate is a foreign country whose governance is an act of state.
A writ of habeas corpus would run to such a territory, and ‘may be addressed to any person who has such control over the imprisonment that he could order the release of the prisoner’.

Vaughan Williams, Farwell LJJ
[1910] 2 KB 576, [1910] UKLawRpKQB 78
Commonlii
England and Wales
Citing:
DistinguishedSprigg v Sigcau PC 26-Feb-1897
(Cape of Good Hope) . .

Cited by:
CitedSecretary 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 . .
CitedBelhaj 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.

Commonwealth, Constitutional, Litigation Practice

Leading Case

Updated: 14 November 2021; Ref: scu.470681

JMMB Merchant Bank Ltd v The Real Estate Board: PC 20 Apr 2015

(Jamaica) The Board was asked ‘ two issues, namely (i) whether a charge in favour of the Real Estate Board (‘the REB’) is valid only if it has been registered under section 93 of the Companies Act 2004; and (ii) to what extent (if at all) does a charge in favour of a regulated financial institution rank pari passu with the REB’s charge.’

Lady Hale
Lord Sumption, Lord Carnwath, Lord Hughes, Lord Hodge
[2015] UKPC 16
Bailii
England and Wales

Land, Company

Updated: 12 November 2021; Ref: scu.545684

Vizcaya Partners Ltd v Picard and Another: PC 3 Feb 2016

No Contractual Obligation to Try Case in New York

(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The appeal was allowed. There was no basis in the evidence for the assertion that there was a contractual term that Vizcaya submitted to the New York jurisdiction. The jurisdiction agreement would be governed by New York law, and what disputes to which it is applicable would be a question of interpretation governed by the applicable law. But there was no evidence of any rules of interpretation under New York law which could lead the Gibraltar court to the conclusion that any implied submission under the clause would apply to avoidance proceedings.

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2016] UKPC 5, [2016] Bus LR 413, [2016] WLR(D) 70
Bailii, WLRD
Foreign Judgments (Reciprocal Enforcement) Act 1933 4(2)
England and Wales
Citing:
CitedCopin v Adamson CA 1875
The plaintiff sought to enforce here a judgment obtained in France against the defendant, who now pleaded that he was not a native of and had not lived in France. He had not been served with any process or had any involvement in or knowledge of the . .
CitedFeyerick v Hubbard 1902
A contract between a British subJect and resident and a foreigner provided for the contact to be governed by the courts of Belgium.
Held: The clause was enough to give the Belgian courts jurisdiction and for the finding to be effective though . .
CitedSchibsby v Westenholz CA 1980
The parties were both Danish, the plaintiffs resident in France and the defendants in London. The plaintiffs now sought to enforce a judgment obtained against the defendangt in France in default of their appearance. The defendants had no property in . .
CitedVallee And Others v Dumergue CExC 6-Jul-1849
A provision in the constitution of a company regulated proceedings against shareholders. The plaintiff liquidators sought enforcement in England of a French judgment against a shareholder for his contribution to the debts of the company. The . .
CitedThe Bank of Australasia v Harding 1850
The members, resident in England, of a company formed for the purpose of carrying on business in a place out of England, are bound, in respect of the transactions of that company, by the law of thc country in which the business is carried on . .
CitedThe Bank of Australasia v Nias 1851
By an Act of the Colonial Legislature of New South Wales, it was provided tbat a banking company should sue and be sued in the name of its chairman, arid that execution on any judgment against the oompany might be issued against the property of any . .
CitedSirdar Gurdyal Singh v The Rajah of Faridkote PC 28-Jul-1894
(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote . .
CitedBlohn v Desser 1962
The plaintiff had obtained a default judgment in Austria against an Austrian partnership, and sought to enforce it in England against an English resident who was a sleeping partner in the firm. Her name was registered as a partner in the commercial . .
CitedVogel v RA Kohnstamm Ltd 1973
Enforcement at common law wa sought of an Israeli default judgment in favour of an Israeli buyer of leather against an English company. The plaintiffs argued that the defendants were resident in Israel or had by implication agreed to submit . .
CitedRubin and Another v Eurofinance Sa and Others SC 24-Oct-2012
The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in . .
CitedMattar and Saba v Public Trustee 1952
Alberta Appellate Division – The court denied enforcement of a Quebec judgment on promissory notes, and held that an agreement to submit to the jurisdiction of a foreign court is not to be implied from the fact that the defendant has entered into a . .
CitedSfeir and Co v National Insurance Co of New Zealand 1964
The court was asked as to the enforceability of a Ghanaian judgment on a marine insurance contract under the 1920 Act.
Held: Mocatta J accepted that ‘an implied submission or agreement to submit can satisfy the words of [section 9(2)(b)]’. But . .
CitedAdams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .
CitedJamieson v Northern Electricity Supply Corp (Private) Ltd 1970
It was argued that there had been an implied submission to the Zambian courts by an employee because the contract of employment was entered into in, and to be performed in Zambia, and assumed to be governed by Zambian law, and that a Azambian . .
CitedDunbee Ltd v Gilman and Co, (Australia) Pty Ltd 1968
New South Wales Court of Appeal -The court was asked to enforce an English default judgment. The judgment debtor had ‘agree[d] to submit to the jurisdiction’ of the English court by virtue of a contractual provision that the agreement was ‘governed . .
CitedSirdar Gurdyal Singh v The Rajah of Faridkote PC 28-Jul-1894
(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote . .
CitedVita Food Products Inc v Unus Shipping Co Ltd PC 30-Jan-1939
(Nova Scotia) Goods were shipped from Newfoundland under a bill of lading which contained an exemption for loss caused by the servants of the carrier. This exemption was void by the law of Newfoundland, whose legislature had enacted the Hague Rules, . .
CitedLuxor (Eastbourne) v Cooper HL 1941
The vendor company had instructed agents to sell properties on its behalf and had agreed to pay commission on completion of the sale. The sale was agreed with a prospective purchaser introduced by the agents. Before the sale was completed, the . .
CitedSA Consortium General Textiles v Sun and Sand Agencies Ltd CA 1978
The expression ‘agreed . . to submit to the jurisdiction’ in the 1933 Act meant ‘expressed willingness or consented to or acknowledged that he would accept the jurisdiction of the foreign court. It does not require that the judgment debtor must have . .
CitedKing v Brandywine Reinsurance Company CA 10-Mar-2005
Excess of Loss reinsurance. In the civil courts of England and Wales is that (with one obvious exception) expert evidence on the domestic law is inadmissible. . .
CitedEmmott v Michael Wilson and Partners Ltd CA 12-Mar-2008
The court considered the implication of the obligation of confidentiality in banking contracts or in arbitration agreements. It is ‘really a rule of substantive law masquerading as an implied term’. . .
CitedSociete Generale, London Branch v Geys SC 19-Dec-2012
The claimant’s employment by the bank had been terminated. The parties disputed the sums due, and the date of the termination of the contract. The court was asked ‘Does a repudiation of a contract of employment by the employer which takes the form . .
CitedMarks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
CitedAWB (Geneva) SA and Another v North America Steamships Ltd and Another CA 18-Jul-2007
A swap agreement provided that pursuant to the ISDA Master Agreement, the agreement was governed by English law and subject to the exclusive jurisdiction of the English courts. The trustee of one of the parties brought statutory avoidance . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Jurisdiction

Leading Case

Updated: 11 November 2021; Ref: scu.559694

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 trade mark to be deregistered. The judge held that there was enough of a difference to keep the defendants innocent of passing off, and though they had sought to ride on the back of the plaintiff’s advertising there was no misrepresentation.
Held: The get up and style of a product could be used as part of a passing off where it had come to be closely associated with a product, but there was evidence to support the judge’s finding that there had been no misrepresentation, and the claim in passing off was not made out. The date which mattered was that date at which the conduct complained of commenced. The judge had correctly used that date, and a mistaken reference to the date of commencement of the hearing did not vitiate the decision. Appeal dismissed.

Lord Wilberforce, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Scarman and Lord Roskill
[1981] 1 WLR 193, [1981] RPC 429, [1980] UKPC 30
lip, Bailii
Australia
Citing:
CitedCheney 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. . .
CitedFelton v Mulligan 2-Sep-1971
(Australia) The court was concerned to interpret the phrase ‘arising under any laws made by the Parliament’
Austlii Constitutional Law (Cth) – Privy Council – Appeal from State Supreme Court invested with . .
CitedHornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd 1978
. .
CitedInternational News Service v Associated Press 1918
The Supreme Court introduced the concept of ‘unfair competition’. . .
CitedLeather Cloth Co Ltd v American Leather Cloth Co Ltd HL 1-Feb-1865
Where an individual works in a partnership the goodwill generated by his acts will in the normal course vest in the partnership.
Lord Kingsdown said: ‘Nobody doubts that a trader may be guilty of such misrepresentations with regard to his . .
CitedKark (Norman) Publications Ltd v Odhams Press Ltd 1962
Wilberforce, J described the basis of a passing off action in respect of the name of a newspaper or magazine as being a proprietary right not so much in the name itself but in the goodwill established through the use of the name in connection with . .
CitedReddaway and Co Ltd v Banham and Co Ltd HL 1896
The plaintiff manufactured and sold Camel Hair Belting. The defendant also began to sell belting made of camel’s hair in the name of Camel Hair Belting. The trader claimed a right in the term ‘Camel Hair’.
Held: The term was descriptive. Where . .
CitedSlazenger and Sons v Feltham and Co CA 1889
As to a party, a court will not ‘be astute to say that he cannot succeed in doing that which he is straining every nerve to do’. . .
CitedSpalding (A G ) and Brothers v A W Gamage Ltd HL 1915
The House considered the requirements for the tort of passing off. The judge has the sole responsibility for deciding whether anybody has been misled. He will hear evidence, but must not surrender his assessment to others.
Lord Parker said: . .
CitedVictoria Park Racing and Recreation Grounds Co Ltd v Taylor 26-Aug-1937
(High Court of Australia) . .
CitedErven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .

Cited by:
CitedInter Lotto (Uk) Ltd v Camelot Group Plc CA 30-Jul-2003
The claimant and defendant had each operated using a the name ‘HotSpot’ for a name for its lottery. The respondent had registered the name as a trade mark. The claimant began to use the name first and claimed in passing off, and the respondent . .
CitedAlan Kenneth McKenzie Clark v Associated Newspapers Ltd PatC 21-Jan-1998
The claimant was a member of Parliament and an author. The defendant published a column which was said to give the impression that the claimant had written it. It was a parody. The claim was in passing off.
Held: The first issue was whether a . .
CitedMoroccanoil Israel Ltd v Aldi Stores Ltd IPEC 29-May-2014
The claimant asserted passing off and trade mark infringement by the defendant in respect of its own hair oil product and the defendant’s sale of ‘Miracle Oil’. The defendant counterclaimed in a threat action. . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 11 November 2021; Ref: scu.174751

Sherry v The Queen: PC 4 Mar 2013

Discretion as to credit for remand time

(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his appeal, and was ordered to serve the three months less only five days served. By then he had served the 33 days also following his initial conviction. He sought leave to appeal so that he could return to the island.
Held: The appeal failed. The law was not uncertain. Anyone entering such an appeal would know from the relevant statute that the court would be given a discretion as to the date from which his sentence would run, whether from the date of its own order or from the date when it was imposed, or from some other date which would take into account the time already served.

Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Sumption
[2013] UKPC 7
Bailii
Commonwealth
Citing:
CitedIn re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
CitedBirmingham City Council, Regina (on the Application of) v Birmingham Crown Court, RR interested Party; similar Admn 17-Dec-2009
Applicant councils sought to challenge by judicial review leave given to appeal out of time against ASBO orders.
Held: The requests failed. The courts were required when considering such applications to allow for the age of the defendant. The . .
CitedTaylor v Lawrence CA 4-Feb-2002
A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm . .
CitedCallachand and Another v State of Mauritius PC 4-Nov-2008
(Mauritius) ‘In principle it seems to be clear that where a person is suspected of having committed an offence, is taken into custody and is subsequently convicted, the sentence imposed should be the sentence which is appropriate for the offence. It . .
CitedGordon, Regina v; Regina v Taylor etc CACD 8-Feb-2007
The court considered the interaction of sections 240 of the 2003 Act, and 67 of the 1967 Act as applied to time spent on remand.
Held: The court laying down the sentence should address this issue, and declare whether all time or otherwise . .
CitedKumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .
CitedThe Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Prisons, Human Rights

Updated: 11 November 2021; Ref: scu.471319

Vadim Schmidt v Rosewood Trust Limited: PC 27 Mar 2003

PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had taken more and more indirect ways of conferring benefits. The settlements were badly drafted, but that should not be used to excuse a court fulfilling its duties. The right to seek disclosure did not depend upon a fixed and transmissible beneficial interest. The object of a discretion may have similar rights, and the right was not dependant upon establishing a proprietary interest, but the remedy would be in equity and subject to the court’s discretion. A beneficiary of a discretionary trust has a non-assignable and non-transmissible interest in the trust, and has no entitlement as of right to any trust documents or other information relating to the trust in the possession or control of the trustees.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe
Times 29-Mar-2003, [2003] UKPC 26, Gazette 05-Jun-2003, [2003] 2 AC 709, (2002-03) 5 ITELR 715, [2003] 3 All ER 76, [2003] 2 WLR 1442, [2003] Pens LR 145, [2003] WTLR 565
PC, Bailii, PC
Citing:
CitedMcPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
CitedIn re Manisty’s Settlement ChD 1974
The court contrasted the exercise by trustees of an intermediate power with the exercise of a wide special power.
Held: A wide power, whether special or intermediate, does not negative or prohibit a sensible approach by trustees to the . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .

Cited by:
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedBreakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
CitedTN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.180352

Ackerley v HM Attorney General of The Isle of Man (Isle of Man): PC 31 Jul 2013

The appellant challenged his conviction for sexual assault, saying that the court had not made sufficient allowance for his autism, and in particular that his confession was actually evidence of echolalia, the repetition of what had been said to him.
Held: The Appeal division had applied the correct test in law, and had heard the new evidence: ‘it applied itself to the critical question whether that evidence caused the court to entertain any doubt about the safety of the conviction.’ and the result was fully open to it on the evidence. The appeal failed.

Lord Neuberger, Lord Clarke, Lord Wilson, Lord Hughes, Sir Patrick Coghlin
[2013] UKPC 26
Bailii
England and Wales
Citing:
CitedKelvin Dial (otherwise called Peter), Andrew Dottin (otherwise called Maxwell) v The State PC 14-Feb-2005
(Trinidad and Tobago) Two defendants appealed against their convictions for murder. The principal witness who had identified them, had retracted his evidence, but the retraction had not been believed. He was then shown to have lied.
Held: The . .
CitedSmith v The Queen (Jamaica) PC 23-Jun-2008
The defendant appealed his conviction for murder, making new submissions as to identification.
Held: Lord Carswell, giving the judgment of the Board, declined to deal in detail with both submissions upon suggested flaws in the summing up and . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 11 November 2021; Ref: scu.514357

Phipps v The Director of Public Prosecutions and Another: PC 27 Jun 2012

phipps_dppPC2012

(Jamaica) The defendant appealed against his conviction for murder. He complained that he had been prejudiced because the jury were told that he had been produced from custody, and one of his witnesses was produced in court in chains, thus undermining their evidence. The court of appeal had accepted that the latter had been unexplained and heavy handed. He also complained of the use of evidence that his voice had been recognised.
Held: The appeal failed. The prejudice to the defendant was dealt with properly by the judge in his directions. As to the use of evidence of identification by voice recognition, ‘The judge could hardly have done more to bring to the attention the need for caution in considering this part of the evidence, and the reasons for it, and their duty to consider each of the witnesses individually.’

Lord Hope, Lord Dyson, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKPC 24
Bailii
Citing:
CitedRegina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .
CitedRegina v Robb CACD 1991
The evidence of an expert to prove identification by voice was admissible. Also voice recognition evidence given by a phonetician was admissible as expert evidence; and that evidence of police officers who listened to disputed tapes and recognised . .
CitedRegina v Clare, Regina v Peach CACD 7-Apr-1995
A Police Constable’s very detailed analysis of video evidence in a case made him an ad hoc expert on it.
Lord Taylor of Gosforth CJ said: ‘The phrase ‘expert ad hoc’ seeks to put witnesses like Detective Parsons and PC Fitzpatrick into the . .
CitedAurelio Pop v The Queen PC 22-May-2003
PC (Belize) A witness identified the accused only making the link between the man he knew as R and the accused as the result of an improper leading question by prosecuting counsel. There had been no . .
CitedShand v The Queen PC 27-Nov-1995
(Jamaica) The case for the defence was that the identification witnesses were deliberately lying and it was not suggested that they were mistaken, so that the sole line of defence was fabrication. The identification evidence was exceptionally good . .
CitedFlynn and Another, Regina v CACD 2-May-2008
The court considered the practice of identification by voice recognition, giving detailed guidance on its acceptance and use. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Evidence

Updated: 11 November 2021; Ref: scu.461742

The Bribery Commissioner v Ranasinghe: PC 5 May 1964

S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but provided that no Bill for amendment or repeal should be presented for the Royal Assent unless it was endorsed with a certificate of the Speaker, which was to be conclusive for all purposes that the Bill had been passed by a two-thirds majority of the members of the House of Representatives. The appellant was convicted of a bribery offence before a tribunal created by a provision of the Bribery Amendment Act 1958, which conflicted with a provision of the Constitution. The 1958 Act was not endorsed with the requisite Speaker’s certificate and was not shown to have been passed by a two-thirds majority.
Held: The orders made against the appellant were null and void. The persons composing the tribunal had been appointed under an invalid statute.
Lord Pearce said: ‘When a sovereign Parliament has purported to enact a bill and it has received the Royal Assent, is it a valid Act in the course of whose passing there was a procedural defect, or is it an invalid Act which Parliament had no power to pass in that manner?’ The passages he quoted from McCawley’s case: ‘showed clearly that the Board in McCawley’s case took the view, which commends itself to the Board in the present case, that a legislature has no power to ignore the conditions of law-making that are imposed by the instrument which itself regulates its power to make law. This restriction exists independently of the question whether the legislature is sovereign, as is the legislature of Ceylon, or whether the Constitution is ‘uncontrolled,’ as the board held the Constitution of Queensland to be. Such a Constitution can, indeed, be altered or amended by the legislature, if the regulating instrument so provides and if the terms of those provisions are complied with; and the alteration or amendment may include the change or abolition of these very provisions. But the proposition which is not acceptable is that a legislature, once established, has some inherent power derived from the mere fact of its establishment to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.’ and ‘No question of sovereignty arises. A parliament does not cease to be sovereign whenever its component members fail to produce among them a requisite majority, e.g., when in the case of ordinary legislation the voting is evenly divided or when in the case of legislation to amend the Constitution there is only a bare majority if the Constitution requires something more. The minority are entitled under the Constitution of Ceylon to have no amendment of it which is not passed by a two-thirds majority. The limitation thus imposed on some lesser majority of members does not limit the sovereign power of Parliament itself which can always, whenever it chooses, pass the amendment with the requisite majority.’
Lord Pearce rejected the proposition that: ‘a legislature, once established, has some inherent power, derived from the mere fact of its establishment, to make a valid law by the resolution of a bare majority which its own constituent instrument has said shall not be a valid law unless made by a different type of majority or by a different legislative process.’

Lord Pearce, Viscount Radcliffe, Lord Evershed, Lord Morris of Borth-y-Gest, Lord Hodson
[1964] 2 WLR 1301, [1965] AC 172, [1964] 2 All ER 785, [1964] UKPC 1, [1964] UKPC 20
Bailii, Bailii
eylon (Constitution) Order in Council 1946
Commonwealth
Cited by:
CitedRegina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
CitedJackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
CitedJackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedManuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
CitedLiyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Leading Case

Updated: 11 November 2021; Ref: scu.222716

Williamson v The Attorney General of Trinidad and Tobago: PC 3 Sep 2014

(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal of damages for malicious prosecution, wrongful arrest and false imprisonment.
Held: The appeal failed. The constable had averred in his statement that he had had reasonable and probable cause for laying the charges and had acted without malice. Those averrments had not been challenged by the appellant and the claims of malicios prosecution must fail. Similarly the respondent had clatified the issue of the appellant’s arrest and the justifications for his detention, ad the associated claims must also fail.

Lady Hale, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed
[2014] UKPC 29
Bailii
England and Wales
Citing:
CitedCrawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
CitedA v New South Wales 21-Mar-2007
Austlii (High Court of Australia) Torts – Malicious prosecution – Whether prosecutor acted without reasonable and probable cause – Public rather than private prosecution – Applicant acquitted of offence charged – . .
CitedStevens v The Midland Counties Railway Company And Lander 22-Jun-1854
Quaere, whether an action for a malicious prosecution will lie against a corporation aggregate? Per Alderson, B., that it will not.
It has to be shown that the prosecutor’s motives is for a purpose other than bringing a person to justice. . .
CitedGrainger v Hill CEC 1838
Misuse of Power for ulterior object
D1 and D2 lent C 80 pounds repayable in 1837, secured by a mortgage on C’s vessel. C was to be free to continue to use the vessel in the interim but the law forbade its use if he were to cease to hold its register. In 1836 the Ds became concerned . .
CitedGray v Dight 1677
C successfully sued D for having maliciously prosecuted him in the ecclesiastical court, as a result of which he had been excommunicated. ‘And resolved the action lies though nothing ensued but an excommunication, and no [arrest], nor any express . .
CitedBulwer And Smiths Case 1687
Knowing that C owed H andpound;20 under a judgment debt and that H had died, D unlawfully arrogated H’s name to himself and thereby maliciously caused C to be outlawed for non-payment of the debt, as a result of which he was imprisoned for two . .
CitedJones v Givin 1713
D had unsuccessfully prosecuted C for exercising the faculty of a badger (ie the right to deal in corn) without a licence. C successfully sued D for malicious prosecution and recovered damages equal to his costs of andpound;100 expended in the . .
CitedSavile v Roberts 1792
D had maliciously caused C to be indicted for riot. Following his acquittal C sued D for malicious prosecution. The court affirmed the judgment which had been given for C.
Held: It was irrelevant that D had not been part of a conspiracy. An . .
CitedSavile v Roberts 1795
Case for causing and maliciously procuring the plaintiff to be indicted for a riot. It was held by Holt, Chief Justice, it is not sufficient that the plaintiff prove he was innocent but he must prove express malice in the defendant; he likewise . .
CitedHicks v Faulkner 1878
Before charging a prisoner, a police officer must have ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would . .
CitedQuartz Hill Consolidated Gold Mining Co v Eyre CA 1883
The court considered whether an action lay without proof of special damage for maliciously presenting a winding up petition.
Held: There was. Though there was no general cause of action for maliciously bringing civil proceedings without . .
CitedBrown v Hawkes CA 1891
The court considered the issue of malice as an element of malicious prosecution. It is a matter to be proved by the plaintiff or the case may be withdrawn, but in a proper case it may be inferred from want of reasonable and probable cause although . .
CitedWiffen v Bailey and Romford Urban District Council CA 1915
Non-compliance with a Public Health Act 1875 notice did not necessarily and naturally involve damage to the defendant’s fair name.
Buckley LJ summarised the effect of the Quartz Hill case: ‘So the exception of civil proceedings, so far as they . .
CitedHerniman v Smith HL 1938
The court considered the tort of malicious prosecution.
Held: It is the duty of a prosecutor to find out not whether there is a possible defence, but whether there is a reasonable and probable cause for prosecution. The House approved the . .
CitedChristie v Leachinsky HL 25-Mar-1947
Arrested Person must be told basis of the Arrest
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the . .
CitedBerry v British Transport Commission QBD 1961
Although in civil cases extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in . .
CitedGlinski v McIver HL 1962
The court considered the tort of malicious prosecution when committed by a police officer, saying ‘But these cases must be carefully watched so as to see that there really is some evidence from his conduct that he knew it was a groundless charge.’ . .
CitedDallison v Caffery CACD 1965
It is for the detaining authority to justify all periods of detention.
The court described the common law duty on a prosecutor to disclose material. Lord Denning MR said: ‘The duty of a prosecuting counsel or solicitor, as I have always . .
CitedHolgate-Mohammed v Duke HL 1984
A police officer had purported to arrest the plaintiff under the 1967 Act, suspecting her of theft. After interview she was released several hours later without charge. She sought damages alleging wrongful arrest. The judge had found that he had . .
CitedProulx v Quebec (Attorney General) 18-Oct-2001
SCC Supreme Court of Canada – Civil liability – Malicious prosecution – Regime of immunity and extra-contractual civil liability applicable in Quebec law to Attorney General of Quebec and prosecutors — Whether . .
CitedGujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .

Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 11 November 2021; Ref: scu.536385

Doodeward v Spence: 1908

(High Court of Australia) The police seized from an exhibitor the body of a two headed still born baby which had been preserved in a bottle.
Held: An order was made for its return: ‘If, then, there can, under some circumstances, be a continued rightful possession of a human body unburied, I think, as I have already said, that the law will protect that rightful possession by appropriate remedies. I do not know of any definition of property which is not wide enough to include such a right of permanent possession. By whatever name the right is called, I think it exists, and that, so far as it constitutes property, a human body, or a portion of a human body, is capable by law of becoming the subject of property. It is not necessary to give an exhaustive enumeration of the circumstances under which such a right may be acquired, but I entertain no doubt that, when a person has by the lawful exercise of work or skill so dealt with a human body or part of a human body in his lawful possession that it has acquired some attributes differentiating it from a mere corpse awaiting burial, he acquires a right to retain possession of it, at least as against any person not entitled to have it delivered to him for the purpose of burial, but subject, of course, to any positive law which forbids its retention under the particular circumstances.’
Higgins J (dissenting) said that no one could have property in another human being, live or dead.

Griffith CJ, Barton J, Higgins J
[1908] 6 CLR 40
Australia
Cited by:
ConsideredDobson and Dobson v North Tyneside Health Authority and Newcastle Health Authority CA 26-Jun-1996
A post mortem had been carried out by the defendants. The claimants, her grandmother and child sought damages after it was discovered that not all body parts had been returned for burial, some being retained instead for medical research. They now . .
CitedAB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
CitedYearworth and others v North Bristol NHS Trust CA 4-Feb-2009
The defendant hospital had custody of sperm samples given by the claimants in the course of fertility treatment. The samples were effectively destroyed when the fridge malfunctioned. Each claimant was undergoing chemotherapy which would prevent them . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Wills and Probate

Leading Case

Updated: 11 November 2021; Ref: scu.195012

Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd: 7 Sep 2010

fairfax_ibaFCA2010

Austlii (Federal Court of Australia)
COPYRIGHT – respondent reproduces headlines and creates abstracts of articles in the applicant’s newspaper – whether reproduction of headlines constitutes copyright infringement – whether copyright subsists in individual newspaper headlines, in an article with its headline, in the compilation of all the articles and headlines in a newspaper edition and in the compilation of the edition as a whole – literary work – copyright protection for titles – use of headline as citation to article – policy considerations – originality – authorship – whether presumption of originality for anonymous works available – whether work of joint authorship – whether the headlines constitute a substantial part of each compilation – whether the work of writing headlines is part of the work of compilation – whether fair dealing for the purpose of or associated with reporting news
ESTOPPEL – whether applicant estopped from asserting copyright infringement by respondent – applicant has known for many years that headlines of the applicant’s newspaper are reproduced in the abstracting service – applicant had subscribed to and resupplied the abstracting service – whether respondent relied on an assumption that the applicant will not assert copyright infringement by reproduction by headlines – whether applicant created or encouraged the assumption – detriment – whether unconscionable to depart from assumption
Bennett J said: ‘In my view, the headline of each article functions as the title of the article . . It may be a clever title. That is not sufficient. Headlines are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. It is, generally, too trivial to be a literary work, much as a logo was held to be too trivial to be an artistic work . . It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection . . but that is not the case here . . Fairfax claims copyright in the headlines as a class of work, based on the evidence of a general practice that headlines are determined by staff and settled at meetings of staff to provide a title to a story which also fits into the format of the page . . That is insufficient to overcome the reasoning for the established practice of denying copyright protection to titles which is the apt characterisation for headlines as a class . . The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper but also reproduction of the headline . . If titles were subject to copyright protection, conventional bibliographic references to an article would infringe. Such considerations may well be a reason for the fact that headlines and ‘short phrases’ are excluded from copyright in the United States . . In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer or be referred to articles by their headlines.’

Bennett J
[2010] FCA 984
Austlii
Cited by:
CitedThe Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
CitedThe Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others CA 27-Jul-2011
The defendant companies provided media monitoring services, automatically searching web-sites for terms of interest. The claimant newspapers operated a licensing system through the first claimant permitting the re-use of the content on its members . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Intellectual Property, Estoppel

Leading Case

Updated: 11 November 2021; Ref: scu.470926

Rex v Bunting: 1885

Conspiracy to Bribe is Common Law Offence

(Supreme Court of Ontario) A conspiracy to bring about a change in the Government of Ontario by bribing members of the Legislative Assembly to vote against the Government was an indictable offence at common law committed at the time of the conspiracy itself and within the jurisdiction of the ordinary courts.

(1885) 7 OR 524
Canada
Cited by:
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.427745

Gammon (Hong Kong) Ltd v A-G of Hong Kong: PC 1984

Lord Scarman expressed the purpose of imposing strict liability within criminal law: ‘In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions . . : (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.’

Lord Scarman
[1985] AC 1, [1984] 2 All ER 503, [1984] 3 WLR 437, [1984] Crim LR 479, (1984) 80 Cr App R 194, [1985] LRC (Crim) 439
Citing:
ConfirmedSherras v De Rutzen QBD 2-May-1895
The court considered the need to establish mens rea where it was dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, and ‘There . .

Cited by:
CitedThames Water Utilities Ltd v Bromley Magistrates’ Court Admn 20-Mar-2013
Sewage had escaped from the company’s facilities. They now sought judicial review of their conviction under the 1990 Act, saying there had been no ‘deposit’ of sewage.
Held: The request for review failed: ‘the answer to the question whether . .
CitedBrown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.471928

Board of Trustees of the National Provident Fund v Shortland Securities Limited: PC 1997

(New Zealand) Lord Hoffmann: ‘The expression ‘ratchet clause’ is well understood in New Zealand to mean a particular type of clause, namely a provision such as cl 3.5(c)(i) which prevents the reviewed rent from being lower than the previous rent. This is not the same as a clause giving the landlord an option to initiate review proceedings, even if in practice the economic effect is likely in most (though not necessarily all) cases, to be the same. McGechan J said: ‘[Brierley’s] agreement to provide a lease without a ratchet clause did not require provision of a lease with a mandatory review clause. The two were different and were not spoken of as the same’. The Court of Appeal agreed. In view of these concurrent opinions as to the meaning of what is in effect a term of art in New Zealand commercial property transactions, Their Lordships would be very reluctant to take a different view.’

Lord Hoffmann
[1997] 1 NZLR 1
England and Wales
Citing:
Appeal fromBoard of Trustees of the National Provident Fund v Shortland Securities Limited 1996
(New Zealand Court of Appeal) The court considered whether a review in a lease without a ratchet (upwards only) rent review clause could be exercised only at the instigation of the landlord: ‘The fact that as a consequence the parties agreed upon . .

Cited by:
CitedHemingway Realty Ltd v Clothworkers’ Company ChD 8-Mar-2005
The lease provided for a rent review under which the rent might either be increased or decreased. The landlord had chosen not to exercise the clause in view of falling rents. The tenant purported to do so. The landlord said that it alone had the . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Landlord and Tenant

Updated: 09 November 2021; Ref: scu.223595

Takitota v The Attorney General and Others: PC 18 Mar 2009

Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a ‘flagrant misuse/abuse of power.’ The court was now asked as to whether the case was one for aggravated damages.
Held: It was not appropriate to make an award both by way of exemplary damages and for breach of constitutional rights. When the vindicatory function of the latter head of damages has been discharged, with the element of deterrence that a substantial award carries with it, the purpose of exemplary damages has largely been achieved. To make a further award of exemplary damages, as the appellant’s counsel sought, would be to introduce duplication and contravene the prohibition contained in the proviso to Article 28(1) of the Constitution.

Lord Phillips of Worth Matrave, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2009] UKPC 11, 26 BHRC 578
Bailii
England and Wales
Citing:
CitedRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
CitedTynes v Barr 28-Mar-1994
(Supreme Court of the Bahamas) The plaintiff had been wrongfully arrested and humiliated publicly at an airport. He claimed exemplary damages. In assessing the exemplary damages in a court should take account of the injury the plaintiff has endured . .
CitedAttorney General of Trinidad and Tobago v Ramanoop PC 23-Mar-2005
(Trinidad and Tobago) A police officer had unjustifiably roughed up, arrested, taken to the police station and locked up Mr Ramanoop, who now sought constitutional redress, including exemplary damages. He did not claim damages for the nominate torts . .
CitedSubiah v The Attorney General of Trinidad and Tobago PC 3-Nov-2008
(Trinidad and Tobago) The Board considered the extent of damages for infringement of the claimant’s constitutional rights. He had been on board a bus. He complained when a policeman was allowed not to buy a ticket. The same constable arrested him as . .
CitedMerson v Cartwright, The Attorney General PC 13-Oct-2005
(Bahamas) The defendant police had appealed the quantum of damages awarded to the claimant for assault and battery and false imprisonment and malicious prosecution, saying that she had been doubly compensated. The claimant now appealed reduction of . .
CitedTaunoa v Attorney General for New Zealand 31-Aug-2007
Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison . .
CitedThe Attorney General for Saint Christopher and Nevis v Sir Probyn Inniss PC 18-Jul-1988
(Eastern Caribbean) . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.471043

Kinsela v Russell Kinsela Pty Ltd (In Liq): 1986

(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded as the company when questions of the duty of directors arise. If, as a general body, they authorise or ratify a particular action of the directors, there can be no challenge to the validity of what the directors have done. But where a company is insolvent the interests of the creditors intrude. They become prospectively entitled, through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the company’s assets. It is in a practical sense their assets and not the shareholders’ assets that, through the medium of the company, are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration.’

Street CJ, Hope and McHugh JJA
(1986) 4 NSWLR 722, (1986) 4 ACLC 215, 10 ACLR 395
Cited by:
ApprovedWest Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .

Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Leading Case

Updated: 09 November 2021; Ref: scu.565823

Turner v Bladin: 20 Apr 1951

Austlii (High Court of Australia) Contract – Specific performance – Outstanding obligations on either side – Contract of sale completely performed by vendor – Decree of specific performance against purchaser to enforce payment of purchase price.
Statute of Frauds – Action – Debt – Sale of interest in land – Contract not evidenced by writing – Consideration fully executed by vendor – Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof – Instruments Act 1928-1936 (No. 3706 – No. 4370) (Vict.), s. 128.

Williams, Fullagar, and Kitto JJ
(1951) 82 CLR 463, [1951] HCA 13
Austlii
Australia

Commonwealth, Equity, Contract

Leading Case

Updated: 09 November 2021; Ref: scu.395052

Attorney General of Hong Kong v Fairfax Limited: PC 17 Dec 1996

(Hong Kong) A lease had been granted containing a covenant that the tenant would build villa residences only on the land. In breach of that covenant many high rise properties had been erected over many years. The applicant, now respondents, had sought a declaration that it could likewise erect a multi-story building, saying that the crown, the landlord, had acquiesced in the breach over many years and could not now enforce it.
Held: The Crown’s appeal failed. ‘A man cannot acquiesce in conduct of which he is ignorant. Whilst their Lordships accept that proof of such knowledge is essential, there is here overwhelming proof.’ and ‘the only possible inference from the fact that over a period of forty years multi-storey blocks have been built over virtually the whole of Lot 757 is that everyone, including the Crown, must have been aware of those facts. An area of 22 acres has been transformed into an area of high-density high-rise buildings. It would take compelling evidence, which is lacking, to rebut the inference that everyone concerned with that land was well aware that it was not being used for villas.’

Lord Browne-Wilkinson, Lord Jauncey of Tullichettle, Lord Lloyd of Berwick, Lord Nicholls of Birkenhead, Lord Cooke of Thorndon
[1996] UKPC Hong Kong 52, [1996] UKPC 55, [1997] 1 WLR 149
Bailii
Citing:
CitedGibson v Doeg 1857
A tenant had openly used the premises for many years in breach of a covenant in the lease.
Held: Pollock CB said: ‘It is a maxim of the law to give effect to everything to which appears to have been established for a considerable course of . .
CitedHepworth v Pickles ChD 2-Nov-1899
The parties contracted for the sale and purchase of a shop which had been used continuously and openly with an off-licence for the sale of alcohol for twenty four years. After exchange, a restrictive covenant was revealed against the use of land as . .

Cited by:
CitedCrown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Leading Case

Updated: 09 November 2021; Ref: scu.159211

Misick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 1 May 2009

The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption.
Held: The request failed as having no realistic prospects of success. The power under the 1962 Act was to make such provision as appeared expedient. ‘the Crown’s power to legislate for the good government of a territory (whether under the prerogative or a statute such as the present), although in principle subject to judicial review, is in practice not open to question in the courts other than in the most exceptional circumstances . .’ and this case was not sufficiently exceptional. ‘The Court will not enter into discussion of the merits of the particular measures. In the end, the challenge comes down to one of statutory construction or rationality, and on that basis it is bound in my view to fail.’

Carnwath LJ, Mitting J
[2009] EWHC 1039 (Admin)
Bailii
The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009, West Indies Act 1962, United Nations International Covenants 1966
England and Wales
Citing:
CitedCalvin’s case 1606
Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws . .
AppliedBancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
CitedLykourezos v Greece ECHR 15-Jun-2006
‘once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic . .
CitedCampbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
CitedLiyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
CitedRegina 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 . .
CitedRegina v Makanjuola CACD 17-May-1995
Guidance was given on the directions to be given to the jury where a co-accused speaks for prosecution as a witness and in sexual assault cases. The full corroboration warning is not now needed; the Judge may use his own discretion, and may give a . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 09 November 2021; Ref: scu.346158

Kioa v West: 18 Dec 1985

kioa_westHCA1985

(High Court of Australia) Immigration and Aliens – Deportation – Power of Minister – Principles of natural justice – Whether applicable – Standing as Australian citizen of infant daughter of aliens – Intended deportation order – Whether notice required – Migration Act 1958 (Cth), ss. 6, 6A, 7, 18.
Administrative Law – Decision – Natural justice – Procedural fairness – Order for deportation of aliens – Review of decision – Administrative Decisions (Judicial Review) Act 1977 (Cth), ss. 5, 13.
The court described the essence of procedural fairness. Mason J said: ‘In this respect the expression ‘procedural fairness’ more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, that is, in accordance with procedures that are fair to the individual considered in the light of the statutory requirements, the interests of the individual and the interests and purposes, whether public or private, which the statute seeks to advance or protect or permits to be taken into account as legitimate considerations . .’
Brennan J stated: ‘a person whose interests are likely to be affected by an exercise of power must be given an opportunity to deal with relevant matters adverse to his interests which the repository of the power proposes to take into account in deciding upon its exercise; . . the person whose interests are likely to be affected does not have to given an opportunity to comment on every adverse piece of information, irrespective of its credibility, relevance or significance . . nevertheless in the ordinary case where no problem of confidentiality arises an opportunity should be given to deal with adverse information that is credible, relevant and significant to the decision to be made. It is not sufficient for the repository of the power to endeavour to shut information of that kind out of his mind and to reach a decision without reference to it. Information of that kind creates a real risk of prejudice, albeit unconscious, and it is unfair to deny a person whose interests are likely to be affected by the decision an opportunity to deal with the information . .’

Gibbs CJ, Mason, Wilson, Brennan, Deane JJ
(1985) 60 ALJR 113, (1985) 159 CLR 550, [1985] HCA 81
Austlii
Cited by:
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedSave Our Surgery Ltd, Regina (on The Application of) v Joint Committee of Primary Care Trusts Admn 7-Mar-2013
The claimants sought judicial review of the report prepared by the defendants under which departments providing childrens’ heart surgery at their regional hospital would close. They complained that the consultation had been inadequate and flawed. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.222098

Dunlop v The Council of The Municipality of Woollahra: PC 28 Feb 1981

(New South Wales) The landowner made and allegation of damage caused to him by the passing planning resolutions, which were in fact invalid, restricting the height of his proposed building.
Held: A local body when exercising a public function such as those relating to town planning can be liable for misfeasance. Lord Diplock described the tort of misfeasance in public office as ‘well established’
His pleading alleged that the council: ‘was a public corporate body which occupied office and was incorporated by a public statute . . and the [council] abused its said office and public duty under the said statute by purporting to pass each of the said resolutions with the consequence that damage was occasioned to [Dr Dunlop].’ As to which Lord Dunlop replied: ‘In pleading in paragraph 15A of the statement of claim that the council abused their public office and public duty the plaintiff was relying upon the well-established tort of misfeasance by a public officer in the discharge of his public duties … their Lordships agree with [the trial judge’s] conclusion that, in the absence of malice, passing without knowledge of its invalidity a resolution which is devoid of any legal effect is not conduct that of itself is capable of amounting to such ‘misfeasance’ as is a necessary element in this tort.’

[1981] UKPC 10, [1982] AC 158, [1981] 1 All ER 1202
Bailii
Australia
Cited by:
CitedElliott v Chief Constable of Wiltshire and Others ChD 20-Nov-1996
Vice-Chancellor was asked to consider whether to strike out a statement of claim based upon alleged misfeasance by a police officer in his public office. The allegation against the police officer was that he had deliberately and falsely supplied . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Local Government

Updated: 09 November 2021; Ref: scu.443949

Hui Chi-ming v The Queen: PC 5 Aug 1991

(Hong Kong) The defendant was charged with aiding and abetting a murder. A, carrying a length of water pipe and accompanied by the defendant and four other youths, seized a man and A hit him with the pipe, causing injuries from which he died. No witness saw the defendant hit the man, who was an innocent victim, or play any particular part in the assault. A was charged with murder, with three of the group. Two pleaded guilty to manslaughter and other was acquitted. The jury acquitted A of murder but convicted him of manslaughter. The defendant was later indicted for murder with another youth whose plea of guilty to manslaughter was accepted. The defendant refused an offer by the prosecution to accept a plea of guilty to manslaughter. He was prosecuted for murder as a party to a joint enterprise in which A had murdered the victim. The judge did not admit evidence of A’s acquittal of murder and conviction of manslaughter only. The defendant was convicted of murder and sentenced to death.
Held: The conviction or acquittal of the principle was both irrelevant and inadmissible. A conviction for an aider and abettor was not dependent upon a conviction of the principal offender. In general, an acquittal upon a different charge in an earlier trial is irrelevant to the issues before the court in the second trial.
Lord Griffiths said: ‘Their Lordships are of the view that the more recent English cases established that the rejection of an improperly obtained confession is not dependent only upon possible unreliability but also upon the principle that a man cannot be compelled to incriminate himself and upon the importance that attaches in a civilised society to proper behaviour by the police towards those in their custody. All three of these factors have combined to produce the rule of law applicable in Hong Kong as well as in England that a confession is not admissible in evidence unless the prosecution establish that it was voluntary.’
Lord Lowry: ‘a serious anomaly’ had occurred but the prosecution of the defendant for murder rather than manslaughter was not so unfair or wrong as to constitute an abuse of process. There was ample evidence to support the defendant’s conviction. ‘Provided the case was conducted with propriety, it is difficult to see how the judge could properly have intervened to prevent counsel from seeking or the jury from returning a verdict which was justified by the evidence. The other answer is that, if it was not an abuse to indict and prosecute for murder, it could scarcely be an abuse to seek a verdict which was justified by the evidence.

Lord Griffiths, Lord Lowry
[1992] 1 AC 34, [1991] 3 All ER 897, [1991] 3 WLR 495, Gazette 02-Oct-1992, [1991] UKPC 29, (1991) 94 Cr App R 236
Bailii, Bailii
England and Wales
Citing:
ExplainedChan Wing-Siu v The Queen PC 21-Jun-1984
The appellant and co-accused were charged with murder. They said they had gone to meet the deceased to collect a debt, but had been attacked with a knife by the deceased. Two of the three had knives and knew of the other knife.
Held: All were . .
ApprovedRegina v Hyde, Sussex, Collins CACD 1990
Lord Lane CJ restated the principle underlying the responsibility of a secondary partner in a joint enterprise: ‘If B realises (without agreeing to such conduct being used) that A may kill or intentionally inflict serious injury, but nevertheless . .
CitedRegina v Andrews-Weatherfoil Ltd CACD 1972
For so long as it is possible for persons concerned in a single offence to be tried separately, it is inevitable that the verdicts returned by the two juries will on occasion appear to be inconsistent with one another. Eveleigh J: ‘It is necessary . .
CitedDirector of Public Prosecutions v Humphrys HL 1977
Humphrys was charged with driving while disqualified. The issue was the correctness of the identification by a police constable. In evidence, Humphrys denied that he was the driver, or indeed that he had driven any car during the year in question. . .

Cited by:
CitedRegina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
CitedHasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .
CitedRegina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
CitedPetch and Coleman v Regina CACD 13-Jul-2005
The defendants appealed their convictions for murder, saying that a co-defendant, have been captured after fleeing the country had later been treated more leniently, a plea of manslaughter having been accepted.
Held: In order to substitute . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedRegina v Hertfordshire County Council, ex parte Green Environmental Industries Ltd and Another HL 17-Feb-2000
A notice was given to the holder of a waste disposal licence to require certain information to be provided on pain of prosecution. The provision of such information could also then be evidence against the provider of the commission of a criminal . .
CitedRegina v Robinson CACD 23-Mar-2011
Earlier Acquittal not for mention on retrial
The defendant appealed against several convictions for serious ‘historic’ sex abuse. He said that there was insufficient evidence before the court to decide that the complainant had been under 14 at the time, and that any consent was vitiated. He . .
CitedJogee and Ruddock (Jamaica) v The Queen SC 18-Feb-2016
Joint Enterprise Murder
The two defendants appealed against their convictions (one in Jamaica) for murder, under the law of joint enterprise. Each had been an accessory when their accomplice killed a victim with a knife. The judge in Jogee had directed the jury that he . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.179868

Malayan Credit Ltd v Jack Chia-MPH Ltd: PC 1986

The Board considered whether there were only three situations in which joint owners of property could be found to be tenants in common, and whether there were other circumstances which could lead to a contrary conclusion.
Held: It was improbable that a joint tenancy in equity was intended where joint tenants in law held commercial premises for their separate business purposes. The parties may have equal shares without indending survivorship rules to apply. There was no fundamental distinction between buying a lease at a premium with a token rent and taking a lease at a rack rent with no premium. In the latter case the rent is equivalent to the purchase money. The features of the case pointed: ‘unmistakably towards a tenancy in common in equity, and furthermore towards a tenancy in common in unequal shares’. Amongst these were not only that the parties had paid the refundable deposit, stamp duty, survey fees, rent and service charges in unequal shares, but also that those shares were proportionate to the actual square footage which each of them occupied.
Lord Brightman: ‘The lessees at the inception of the lease hold the beneficial interest therein as joint tenants in equity. This will be the case if there are no circumstances which dictate to the contrary.’

Lord Brightman
[1986] 1 AC 549
Cited by:
CitedStack v Dowden HL 25-Apr-2007
The parties had cohabited for a long time, in a home bought by Ms Dowden. After the breakdown of the relationship, Mr Stack claimed an equal interest in the second family home, which they had bought in joint names. The House was asked whether, when . .
CitedFowler v Barron CA 23-Apr-2008
The parties had lived together for many years but without marrying. The house had been put in joint names, but without specific advice on the issue or any express declaration of trust. In practice Mr Barron made the direct payments for the house and . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Land

Leading Case

Updated: 02 November 2021; Ref: scu.251499

Attorney-General of Ceylon v de Livera: PC 1963

A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a gratification to the member ‘for his doing an act in his capacity as such member’, but the conviction by the magistrate was overturned by the Supreme Court of Ceylon.
Held: The attorney-general’s appeal was allowed. The Board considered the meaning of the phrase ‘proceedings in parliament’.
Viscount Radcliffe said: ‘their Lordships are now in a position to address themselves to the facts of this appeal. They approach them on the basis . . that in considering whether the inducement offered by the . . respondent to . . the member was offered to induce him to act in his capacity as such member, the inquiry is not confined to ascertaining whether he was to do something specifically assigned as a member’s function in the Constitution Order or something which was actually a proceeding on the floor of or in the precincts of the House. They recognise that there are many things which a member may be invited to do because he is a member and enjoys as such a status and prestige which supply the motive of the invitation but in doing which he would not be acting in his capacity as a member. But, with this recognition made, they are of the opinion that the circumstances of any particular case may show that in the light of prevailing practices or conventions observed by members of the House some act for which an inducement has been offered is sufficiently closely bound up with and analogous to a proceeding in the House as to be properly described as done by a member in his capacity as such’. And
‘What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a ‘proceeding in Parliament’? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words ‘proceedings in Parliament’ is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm and M, Sess,. 2, c.2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his ‘real’ or ‘essential’ function as a member? For, given the proper anxiety of the House to confine its own or its members’ privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member’s true function.’

Viscount Radcliffe
[1963] AC 103
Bill of Rights 1869
Commonwealth
Cited by:
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.199234

Mitsui Construction Co Ltd v Attorney General of Hong Kong: PC 1986

Lord Bridge said that poor drafting in a contract itself provides: ‘no reason to depart from the fundamental rule of construction of contractual documents that the intention of the parties must be ascertained from the language that they have used interpreted in the light of the relevant factual situation in which the contract was made. But the poorer the quality of the drafting, the less willing the court should be to be driven by semantic niceties to attribute to the parties an improbable and unbusinesslike intention, if the language used, whatever it may lack in precision, is reasonably capable of an interpretation which attributes to the parties an intention to make provision for contingencies inherent in the work contracted for on a sensible and businesslike basis.’

Lord Bridge of Harwich
(1986) 33 BLR 14
England and Wales
Cited by:
CitedGan Insurance Co Ltd v Tai Ping Insurance Co Ltd CA 3-Jul-2001
A reinsurance contract which contained a clause which provided that no settlement or compromise of a claim could be made or liability admitted by the insured without the prior approval of the reinsurers. The court considered how the discretion to . .
CitedSinochem International Oil (London) Co Ltd v Mobil Sales and Supply Corporaton and Another CA 17-Feb-2000
. .
CitedOxonica Energy Ltd v Neuftec Ltd PatC 5-Sep-2008
The parties disputed the meaning of an patent and know how licence. The parties disputed whether the agreement referred to IP rights before formal patents had been granted despite the terms of the agreement.
Held: ‘The secret of drafting legal . .
CitedMulti-Link Leisure Developments Ltd v Lanarkshire Council SC 17-Nov-2010
The parties disputed the effect of an option clause in a lease, and particularly whether, when fixing the price, potential for development was to be included. The clause required the ‘full market value’ to be paid. The tenant appealed.
Held: . .
CitedRainy Sky Sa and Others v Kookmin Bank SC 2-Nov-2011
Commercial Sense Used to Interpret Contract
The Court was asked as to the role of commercial good sense in the construction of a term in a contract which was open to alternative interpretations.
Held: The appeal succeeded. In such a case the court should adopt the more, rather than the . .
CitedMT Hojgaard As v EON Climate and Renewables UK Robin Rigg East Ltd and Another SC 3-Aug-2017
The defendants had requested tenders for the design and construction of an offshore wind farm. The court now considered the situation arising because of inconsistencies between documents in the tender request. The successful tender was based upon an . .

Lists of cited by and citing cases may be incomplete.

Construction, Commonwealth, Contract

Leading Case

Updated: 02 November 2021; Ref: scu.273182

Leahy v Attorney-General of New South Wales: PC 20 Apr 1959

leahy_agnswPC1959-4

A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the date of the gift as joint tenants or tenants in common.
Where a trust is for a non-charitable purpose and does not have a beneficiary, it fails ‘for a purpose or object cannot sue . . to enforce it’
Viscount Simonds said: ‘But, though their Lordships are of opinion that the section may operate where there is a composite expression covering charitable and non-charitable purposes, and does so in the present case, it is clear that not every expression which might possibly justify a charitable application is brought within it. For instance, in In re Hollole there was a gift to a trustee ‘to be disposed of by him as he may deem best’. The trustee might presumably have deemed it best to dispose of it for a charitable purpose, and, if he had done so, could not be said to have exceeded his powers. Yet O’Bryan J held that the gift was not saved by the section, and his decision has been rightly approved in the High Court. This was a clear case because the testator did not designate any purpose at all but in effect delegated his testamentary power in a manner that the law does not permit. Greater difficulty will arise where the permissible objects of choice are described in a composite expression which, though not so vague and general as to amount to a delegation of testamentary power, does not very clearly indicate a charitable intention on the part of the testator. ‘In the present case,’ say the Chief Justice and McTiernan J, ‘there is reference to a distributable class which, while not exclusively charitable, is predominantly charitable in character’. The same concept appears in a different form in the judgment of Williams J and Webb J. ‘One can also agree with him’ (ie., Myers J) they say ‘that in order to satisfy the section the application of the whole fund to charity must be one way of completely satisfying the intention of the testator. But, if the trust either directs or allows this to be done, the testator’s intention will be completely satisfied if the trust funds are so applied….’ Thus whether the gift be to Orders of Nuns, an object so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed, or for (say) benevolent purposes, which connotes charitable as well as non-charitable purposes, the section will apply. Inevitably there will be marginal cases, where an expression is used which does not significantly indicate a charitable intention, and their Lordships do not propose to catalogue the expressions which will or will not attract the section. It may be sufficient to say that in the chequered history of this branch of the law the misuse of the words ‘benevolent’ and ‘philanthropic’ has more than any other disappointed the charitable intention of benevolent testators and that the section is clearly designed to save such gifts.’

Viscount Simonds
[1959] AC 457, [1959] UKPC 1, [1959] UKPC 9
Bailii, Bailii
Cited by:
CitedRe Lipinski’s Will Trusts ChD 1976
Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest . .
CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
CitedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Leading Case

Updated: 02 November 2021; Ref: scu.245263

Chettiar v Chettiar: PC 14 Feb 1962

(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact displaced the presumption of advancement.
Held: The presumption of advancement in a gift between father and son is not lightly to be displaced by evidence: ‘in the present case the plaintiff had of necessity to disclose his own illegality to the court and for this reason: He had not only to get over the fact that the transfer stated that the son paid $7000 for the land. He had also to get over the presumption of advancement, for whenever a father transfers property to his son, there is a presumption that he intended it as a gift to his son; and if he wishes to rebut that presumption and to say that he took as trustee for him, he must prove the trust clearly and distinctly, by evidence properly admissible for the purpose, and not leave it to be inferred from slight circumstances. see Shepherd v. Cartwright [1955] AC 431. The fact that the father received the income does not suffice . . The father had also to get over this pertinent question: If he intended the son to take as a trustee, why did he not insert on the memorandum of transfer the words ‘as trustee’ and register the trust as he could have done under section 160 of the Land Code?
‘In these circumstances it was essential for the father to put forward a convincing explanation why the transfer took the form it did, and the explanation he gave disclosed that he made the transfer for a fraudulent purpose, namely, to deceive the public administration . . Once this disclosure was made by the father, the courts were bound to take notice of it, even though the son had not pleaded it . .in the present case the father has of necessity to put forward,, and indeed, assert, his own fraudulent purpose, which he has fully achieved. He is met therefore by the principle stated long ago by Lord Mansfield ‘No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act,’ see Holman v. Johnson (1775) 1 Cowp. 341, 343).”

Lord Denning, Viscount Simonds
[1962] AC 294, [1962] UKPC 1, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238
Bailii, Bailii
Commonwealth
Citing:
CitedHolman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, . .
See AlsoPalaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .

Cited by:
CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
ApprovedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedCollier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
See AlsoPalaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .

Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Leading Case

Updated: 02 November 2021; Ref: scu.194812

Attorney General of Hong Kong v Ng Yuen Shiu: PC 21 Feb 1983

An illegal entrant into Hong Kong claimed that he was entitled by a legitimate expectation to a hearing before a deportation order might be made against him, there having been an announcement that persons in the respondent’s position would be interviewed.
Held: The court discussed legitimate expectation: ‘The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.’ and ‘The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. ‘

Lord Fraser of Tullybelton
[1983] 2 AC 629, [1983] UKPC 2, [1983] UKPC 7, [1983] 2 All ER 346, [1983] 2 WLR 735
Bailii, Bailii
Commonwealth
Citing:
CitedRegina v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association CA 1972
A number of taxi cab owners challenged a decision of the Council to increase the numbers of hackney cabs operating in the city. At a public meeting with the council prior to the decision, the chairman had given a public undertaking that the numbers . .

Cited by:
CitedBloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
CitedRegina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
CitedWheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.187438

Nelson and Others v First Caribbean International Bank (Barbados) Ltd: PC 3 Sep 2014

nelson_FCIBPC1409

(St Lucia) A loan had been secured against land by a hypothec. A landslip damged the charged property, and the borrowers now challenged the lender’s right to pursue them personally.
Held: The apepeal should be dismissed. Reading the hypothecary obligation and facilities letter together, as they must be, the personal obligation accepted was clear. The assertion that eth bank was limited to its hypothecary was erroneous in failing to ‘distinguish between the law of obligations and the law of real rights. This is a fundamental distinction in civilian legal systems. Obligations are a juridical relationship between persons, namely the debtor and the creditor. Real rights are concerned with things, such as an owner’s right to possess a thing which can be asserted against the world.’

Lady Hale, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hodge
[2014] UKPC 30
Bailii

Commonwealth, Banking

Updated: 01 November 2021; Ref: scu.536384

British Coal Corporation v The King: PC 1935

The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute which prohibited such appeals, this class of appeal was external to Canada, so that the Canadian legislature had no power to make provision affecting it.
Held: The Canadian legislature had power to prohibit appeals to the King in Council in criminal matters and that the petition before it was therefore incompetent.
It was to the King that any subject who had failed to get justice in the King’s Court brought his petition for redress, a petition brought to the King in Parliament or to the King in his Chancery.
Viscount Sankey LC set out the historical background of the Judicial Committee of the Privy Council. Its origins lay in the procedure whereby a party aggrieved by a decision of the Courts of the Channel Islands (and, later, by a decision of the Courts of the Plantations and Colonies) might petition the King in Council to exercise in his favour the sovereign’s royal prerogative as the fountain of justice. In a domestic context such petitions were brought to the King in Parliament (being the origin of the judicial functions of the House of Lords which are soon to be abolished) or to the King in Chancery (from which flowed the jurisdiction of the Court of Chancery).
The procedure for petitioning the King in Council had become loosely described as an appeal by the time the Judicial Committee Act 1833 was enacted. That Act created the Judicial Committee of the Privy Council as a statutory body. It provided that ‘all appeals or complaints in the nature of appeals whatever’ which had previously been brought before His Majesty in Council would now be referred by His Majesty to the Judicial Committee. Although the powers of the committee were limited to making a report or recommendations to His Majesty in Council, Viscount Sankey said that according to constitutional convention it was unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee ‘who are thus in truth an appellate court of law’.
Viscount Sankey LC said: ‘Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities.’ and ‘It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute.’

Viscount Sankey LC
[1935] AC 500, [1935] All ER Rep 139, [1935] UKPC 33
Bailii
Statute of Westminster 1931 4
Canada
Cited by:
CitedThe Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedManuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
CitedDavid Grant v Director of Correctional Services and Another; The Director of Public Prosecutions PC 14-Jun-2004
(Jamaica) The defendant had pleaded guilty to drugs offences in the US, and had fled to Jamaica. He appealed against a refusal of Habeas Corpus having been arrested and held for extradition. The Board considered its jurisdiction to hear such an . .
CitedSeaga v Harper (No 2) PC 29-Jun-2009
No conditional fees without country approval
(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.199435

Greenwood v Fitt: 1961

greenwood_fittBC1961

(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of that conversation was itself admitted.

[1961] 29 DLR 1
Cited by:
CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Leading Case

Updated: 01 November 2021; Ref: scu.182474

Krishna v The State: PC 6 Jul 2011

krishna_statePC11

(Trinidad and Tobago) The applicant appealed against his conviction for murder, complaining as to the way a former co-accused had been allowed to give evidence and the admission of a confession, saying that he had been beaten by police officers.
Held: Though the judge when mentioning the voir dire was following the then practice, the repeated mention of his findings on the voir dire made the conviction unsafe in suggesting the unreliability of the defendant.
Far from inviting the jury to treat the co-defendant’s evidence with caution, he had called him a star witness. The judge should have give an accomplice warning, and what he did say was far short of this, and a misdirection.
Whilst the judge’s failure to give a good character direction was a fault, it would not on its own have been sufficient to undermine the conviction.

Lord Phillips, Lord Mance, Lord Clarke, Lord Hamilton (Scotland), Sir Henry Brooke
[2011] UKPC 18
Bailii
Citing:
CitedDavies v Director of Public Prosecutions HL 1954
Half a dozen youths engaged in a fist fight with another group, but one of their number suddenly produced a knife and stabbed one of their opponents to death. One of the prosecution witnesses was a youth named Lawson. He gave evidence of an oral . .
CitedMitchell v The Queen PC 24-Jan-1998
(Bahamas) The judge’s decision on a voire dire to determine the admissibility of a confession should not be revealed to the jury since it might cause unfair prejudice to the defendant by conveying the impression that the judge had reached a . .
CitedThompson v The Queen PC 16-Feb-1998
(Saint Vincent and the Grenadines) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit . .
CitedRegina v Aziz; Regina v Tosun; Regina v Yorganci HL 16-Jun-1995
The defendant (one of three) relied upon his part exculpatory statement made in interview and did not give evidence. The judge said that his good character was relevant as to his own propensity, and the character of the others was relevant to their . .
CitedMantoor Ramdhanie and others v The State PC 15-Dec-2005
PC (Trinidad and Tobago) The defendant appealed his conviction, saying he had not been properly able to pur forward his evidence of good character. The judge had prevented the defence putting questions to show a . .
CitedTeeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
CitedBarrow v The State PC 23-Mar-1998
(Trinidad and Tobago) If the credibility of a defendant is an issue, a good character direction is always relevant and should be given. However, there is no general duty on a judge to inquire into the issue of the accused’s character if this has not . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 01 November 2021; Ref: scu.441516

British Columbia v Zastowny: 8 Feb 2008

Canlii (Supreme Court of Canada) Damages – Past and future wage loss – Periods of incarceration – Plaintiff seeking damages for injuries suffered as consequence of sexual assaults – Whether plaintiff entitled to compensation for wage loss while he was incarcerated – Whether plaintiff can be compensated for time spent in prison after he became eligible for parole – Whether recovery for past wage loss while incarcerated barred by application of ex turpi causa non oritur actio doctrine or novus actus interveniens doctrine – Whether Court of Appeal erred in reducing award for loss of future earnings.
Canlii In 1988, Z was twice sexually assaulted by a prison official while imprisoned for a break and enter committed to support a crack cocaine addiction. After his release from prison, Z became addicted to heroin and a repeat offender. He was in prison for 12 of the next 15 years. In 2003, Z commenced an action seeking damages for the sexual assaults. A psychologist testified that the assaults caused Z to start using heroin and exacerbated his substance abuse and criminality. Z was awarded general and aggravated damages, the cost of future counselling, and compensation for past and future wage losses. The award for past wage losses included compensation for time spent in prison. The Court of Appeal reduced the award for past wage loss in order to compensate Z only for the time spent in prison after eligibility for parole and it reduced Z’s future wage loss by 30 percent to reflect his high risk of recidivism.
Held: The appeal should be allowed and the cross-appeal should be dismissed.

McLachlin CJ and Bastarache, Binnie, LeBel, Deschamps, Fish, Abella, Charron and Rothstein JJ
[2008] 1 SCR 27, (2008), 290 DLR (4th) 21, [2008] 4 WWR 381, (2008) 76 BCLR (4th) 1
Canlii
England and Wales
Cited by:
CitedGray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages

Updated: 01 November 2021; Ref: scu.347282

Tai Hing Ltd v Liu Chong Hing Bank: PC 1985

(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless negligence or other disentitling conduct of the customer precludes the customer’s claim. No wider duty should be imposed on the customer beyond a duty not to act in a way that facilitates forgery and to make the bank aware of any known forgeries occurred: ‘The business of banking is the business not of the customer but of the bank. They offer a service, which is to honour their customer’s cheques when drawn upon an account in credit or within an agreed overdraft limit. If they pay out upon cheques which are not his, they are acting outside their mandate and cannot plead his authority in justification of their debit to his account. This is a risk of the service which it is their business to offer.’
The Board considered the need for the Board to follow earlier decisions of the House of Lords: ‘It was suggested, though only faintly, that even if English courts are bound to follow the decision in Macmillan’s case the Judicial Committee is not so constrained. This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 of July 1966 pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House. And their Lordships note, in passing, the Statement’s warning against the danger from a House of Lords’ decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords’ decision.’

Lord Scarman
[1985] 2 All ER 947, [1985] 2 Lloyds Rep 313, [1985] 3 WLR 317, [1986] AC 80, [1985] UKPC 22
Bailii
England and Wales
Citing:
CitedLiverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .

Cited by:
CitedYorkshire Bank plc v Lloyds Bank plc CA 12-May-1999
A customer of the plaintiff, sent a cheque to the defendant, with an application for shares. The cheque was stolen whilst in the defendant’s custody, but the plaintiff at first debited the account, then re-credited the balance. The claim failed . .
CitedSandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
CitedJames, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
CitedDonington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
CitedBlackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
See AlsoTai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd PC 5-Feb-1986
(Hong Kong) The Boad considered the costs payable for counsel on an appeal to the Board from Hong Kong . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.238119

Michel v The Queen (The Court of Appeal of Jersey): PC 4 Nov 2009

michel_rPC2009

(Jersey) The defendant appealed, complaining that the number and character of the judge’s interventions in his trial for money laundering had made it unfair.
Held: The conviction was quashed and the case remitted for a decision as to rehearing. The judge had repeatedly intervened to ask questions damaging to the defence and which the prosecutor could not himself properly have asked. The judge interrupted the defendants evidence with some 273 questions, demonstrating scepticism and hostility, and ‘Regrettably too, on occasion the questioning was variously sarcastic, mocking and patronising.’
if that alone was insufficient: ‘There is . . a wider principle in play in these cases merely than the safety, in terms of the correctness, of the conviction. Put shortly, there comes a point when, however obviously guilty an accused person may appear to be, the Appeal Court reviewing his conviction cannot escape the conclusion that he has simply not been fairly tried: so far from the judge having umpired the contest, rather he has acted effectively as a second prosecutor. This wider principle is not in doubt.’
‘not merely is the accused in such a case deprived of ‘the opportunity of having his evidence considered by the jury in the way that he was entitled’. He is denied too the basic right underlying the adversarial system of trial, whether by jury or Jurats: that of having an impartial judge to see fair play in the conduct of the case against him. Under the common law system one lawyer makes the case against the accused, another his case in response, and a third holds the balance between them, ensuring that the case against the accused is properly and fairly advanced in accordance with the rules of evidence and procedure. ‘

Lord Phillips of Worth Matravers, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood and Lord Neuberger of Abbotsbury
[2009] UKPC 41, [2010] 1 WLR 879, [2010] 1 Cr App R 24, [2010] Lloyd’s Rep FC 81
Bailii, Times
Citing:
CitedRegina v Hamilton CACD 9-Jun-1969
Lord Parker CJ discussed the duties of a judge in a criminal trial: ‘Of course it has been recognised always that it is wrong for a judge to descend into the arena and give the impression of acting as advocate . . Whether his interventions in any . .
CitedRegina v Hulusi and Purvis CACD 1973
The defendant appealed against his conviction, complaining of the judge’s repeated hostile interventions. Lawton LJ said: ‘Time and time again the judge intervened, got an answer and then asked questions on that answer. The impression he must have . .
CitedSnooks and Dowse v United Kingdom ECHR 2002
The court described the way that a Jersey Jurat was selected: ‘Jurats are . . elected by a special electoral college whose members include the bailiff, the jurats, advocates and solicitors of the Royal Court and members of Jersey’s legislature, the . .
CitedJones v National Coal Board CA 17-Apr-1957
The judicial function of dealing with cases justly in an adversarial system requires a first instance judge ‘to hear and determine the issues raised by the parties, not to conduct an investigation or examination on behalf of society at large.’ That . .
CitedRegina v Perren CACD 2009
The defendant appealed against his conviction, saying that the judge had prejudiced his trial.
Held: The appeal was allowed. Toulson LJ emphasised ‘that it is for the prosecution to cross-examine, not for the judge’, and that ‘the right time . .
CitedRandall v The Queen PC 16-Apr-2002
(Cayman Islands) The defendant complained that the conduct of prosecuting counsel at his trial had been such as to undermine the fairness of his trial. Counsel had repeatedly and disparagingly interrupted cross-examinations, and the summing up.
CitedCG v The United Kingdom ECHR 19-Dec-2001
The applicant complained that her criminal trial had been conducted unfairly, insofar as the judge had interfered so heavily as to make it difficult for her to present her case. The English Court of Appeal had criticised the judge, but concluded . .
CitedRegina v Nelson CACD 25-Jul-1996
Simon Brown LJ said: ‘Every defendant, we repeat, has the right to have his defence, whatever it may be, faithfully and accurately placed before the jury. But that is not to say that he is entitled to have it rehearsed blandly and uncritically in . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 01 November 2021; Ref: scu.377803

Young v Canadian Northern Railway Company: PC 25 Nov 1930

Manitoba – Collective agreements have a function and value of their own which exists wholly independently of any individual contract of employment. Lord Russell referred to a ‘Wage Agreement’ entered into between the appellant’s trade union and the Canadian Railway War Board, and said: ‘it does not appear to their Lordships to be a document adapted for conversion into or incorporation with a service agreement, so as to entitle master and servant to enforce inter se the terms of thereof . It consists of some 188 ‘rules’, which the railway companies contract with Division No. 4 to observe. It appears to their Lordships to be intended merely to operate as an agreement between a body of employers and a labour organisation by which the employers undertake that as regards their workmen, certain rules beneficial to the workmen shall be observed. By itself it constitutes no contract between any individual employee and the company which employs him. If an employer refused to observe the rules, the effective sequel would be, not an action by any employee, not even an action by Division no.4 against the employer for specific performance or damages, but the calling of a strike until the grievance was remedied.’

Lord Russell
[1931] AC 83, [1930] UKPC 94
Bailii
Commonwealth
Cited by:
CitedThe Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
CitedAlexander v Standard Telephones and Cables Ltd (No. 2) 1991
alexander_standard1991
The court considered under what circumstances a collective agreement between an employer and trades unions would be incorporated into an individual employee’s contract: ‘The so-called ‘normative effect’ by which it can be inferred that provisions of . .
CitedGeorge v The Ministry of Justice CA 17-Apr-2013
The claimant appealed against rejection of his claim that the respondent had broken his contract of employment as a prison officer by changing the collective agreement for prisons officers. The judge had found that the respective terms were not . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.276940

Star Industrial Company Limited v Yap Kwee Kor trading as New Star Industrial Company: PC 26 Jan 1976

(Singapore) The plaintiff Hong Kong company had manufactured toothbrushes and exported them to Singapore, for re-export to Malaysia and Indonesia, but with some local sales as well. Their characteristic get-up included the words ‘ACE BRAND’ and a letter device. They stopped when the Singapore government imposed import duty on toothbrushes. Since then the plaintiff had not manufactured any toothbrushes for export to Singapore, it did not carry on any business in Singapore itself, and it had no intention of resuming its former trade. The defendant formed a company with a name similar to that of the plaintiff, and commenced marketing toothbrushes under the same get-up save that they used AGE instead. The plaintiff sued in Singapore for passing-off to restrain the defendant from using the name and get-up similar to that which the plaintiff had previously used.
Held: The claim failed.
Lord Diplock described the nature of passing off: ‘A passing off action is a remedy for the invasion of a right of property not in the mark, name or get-up improperly used, but in the business or goodwill likely to be injured by the misrepresentation made by passing off one person’s goods as the goods of another. Goodwill, as the subject of proprietary rights, is incapable of subsisting by itself. It has no independent existence apart from the business to which it is attached. It is local in character and divisible; if the business is carried on in several countries a separate goodwill attaches to it in each. So when the business is abandoned in one country in which it has acquired a goodwill the goodwill in that country perishes with it although the business may continue to be carried on in other countries. . . Once the Hong Kong Company had abandoned that part of its former business that consisted in manufacturing toothbrushes for export to and sale in Singapore it ceased to have any proprietary right in Singapore which was entitled to protection in any action for passing-off brought in the courts of that country.’
As to abandonment, if a business clearly ceases to trade with no intention of it being revived, then the goodwill is lost unless it is assigned. If not assigned then some intention to revive the business, even if not imminently, needs to be shown. It must be something more than mere possibility. An intention to resume may be more readily believed where the cessation was compelled by external circumstances

Lord Diplock
[1976] FSR 256, [1976] UKPC 2
Bailii
Commonwealth
Cited by:
CitedJules Rimet Cup Ltd v The Football Association Ltd. ChD 18-Oct-2007
The parties disputed on preliminary issues the ownership of the rights in the trade mark ‘World Cup Willie’. The claimant had set out to register the mark, and the defendant gave notice of its intention to oppose. The claimant now alleged threat and . .
CitedHotel Cipriani Srl and Others v Cipriani (Grosvenor Street) Ltd and Others CA 24-Feb-2010
The claimants owned Community and UK trade marks in the name ‘Cipriani’. The defendants operated a restaurant in London using, under the licence of another defendant, the same name. The claimant sought an injunction to prevent further use of the . .
CitedStarbucks (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 . .
DoubtedOrkin Exterminating Co Inc v Pestco Co of Canada Ltd 10-Jun-1985
Canlii (Court of Appeal, Ontario) Torts — Passing off — Goodwill — Pest control company carrying on business in United States but not in Canada — Company having reputation among Canadian customers for . .
CitedBhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
Dicta ApprovedErven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 01 November 2021; Ref: scu.260079

Goldman v Hargrave: PC 13 Jun 1966

(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would burn itself out. The fire spread to neighbouring property.
Held: An occupier of land is under a general duty of care in relation to hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. Risks such as the spread of fire are not ones which, without more, call for the imposition of any risk based liability; liability if any must be based upon some antecedent creation of risk or some subsequent fault.
Lord Wilberforce said: ‘the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive’. And ‘one may say in general terms that the existence of a duty must be based upon a hazard, ability to foresee the consequences of not checking or not removing it, and the ability to abate it.’
The occupier here was in breach of his duty of care for failing to extinguish a fire which had started by natural causes. The defendant was found to be negligent because he chose not to put the fire out, but to let it burn itself out instead. This erroneous decision allowed a wind to revive the fire which then spread to the plaintiff’s property.
In the case of fire there was no difference between a fire that started from natural causes and one that had been started by human agency. Lord Wilberforce said: ‘Their Lordships would first observe, with regard to the suggested distinction, that it is well designed to introduce confusion into the law. As regards many hazardous conditions arising on land, it is impossible to determine how they arose – particularly is this the case as regards fires. If they are caused by human agency, the agent, unless detected in flagrante delicto, is hardly likely to confess his fault. And is the occupier, when faced with the initial stages of a fire, to ask himself whether the fire is accidental or man-made before he can decide upon his duty? Is the neighbour whose property is damaged bound to prove the human origin of the fire? The proposition involves that if he cannot do so, however irresponsibly the occupier has acted, he must fail. But the distinction is not only inconvenient, it lacks, in their Lordships’ view, any logical foundation.
Within the class of situations in which the occupier is himself without responsibility for the origin of the fire, one may ask in vain what relevant difference there is between a fire caused by a human agency, such as a trespasser, and one caused by act of God or nature. A difference in degree – as to the potency of the agency – one can see but none that is in principle relevant to the occupier’s duty to act. It was suggested as a logical basis for the distinction that in the case of a hazard originating in an act of man, an occupier who fails to deal with it can be said to be using his land in a manner detrimental to his neighbour and so to be within the classical field of responsibility in nuisance, whereas this cannot be said when the hazard originates without human action so long at least as the occupier merely abstains. The fallacy of this argument is that, as already explained, the basis of the occupier’s liability lies not in the use of his land: in the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant.’

Wilberforce, Perason, Morris of Borth-y-Gest, Reid LL
[1967] 1 AC 645, [1966] 3 WLR 513, [1966] 2 All ER 989, [1966] UKPC 2, [1966] UKPC 12
Bailii, Bailii
Australia
Citing:
CitedRylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

Cited by:
CitedThames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedLeakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
CitedTransco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
CitedDelaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedSmith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedGabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedStockley v Knowsley Metropolitan Borough Council CA 1986
A council owned a two-storey building divided into four flats, one of which was occupied by the plaintiff. It failed to prevent frozen water pipes in the roof of the building (which was outside the demise to the plaintiff) from bursting and flooding . .
CitedBybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
CitedLMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
CitedLambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
CitedLambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
CitedPage Motors v Epsom Borough Council CA 9-Jul-1981
The plaintiffs were lessees of land neighbouring that of the Council. Over several years the council’s land had been occupied by gypsies who, it was said had damaged the plaintiff’s business. Though the Council had obtained a possession order in . .
DeterminativeStannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
CitedStagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
CitedNetwork Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
CitedMiller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.179685

Luc Thiet Thuan v The Queen: PC 2 Apr 1996

(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his self-control and acting explosively. The trial judge directed the jury that this medical evidence was not relevant on the defence of provocation. The jury rejected both defences. The correctness of the judge’s direction on provocation was the issue on the appeal.
Held: The Board preserved the historic distinction in the defence of provocation, between matters going to the gravity of the provocation (the subjective test), in which all the personal characteristics of the defendant are relevant, and matters going to the required standard of self-control, (the objective test), where the jury should decide the matter simply by reference to the standards of ‘a person having ordinary powers of self-control’. (Majority: ) While there remained an objective element, and not all the personal characteristics of the defendant were potentially relevant to the issue of self-control, the appropriate standards of behaviour to be applied were a matter of fact alone and for the jury.
Lord Goff of Chieveley noted that any mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation: ‘But this is a far cry from the defendant’s submission that the mental infirmity of a defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test.’
Lord Steyn dissenting: ‘But even more important than the promptings of legal logic is the dictates of justice. Justice underpinned these decisions’.

Slynn, Hoffmann, Clyde, Hobhouse, Millet LL
Gazette 01-May-1996, Times 02-Apr-1996, [1996] 2 Crim App R 178, [1997] AC 131, [1996] 2 All ER 1033, [1996] 3 WLR 45, [1996] UKPC 57
Bailii
England and Wales
Citing:
CitedHolmes v Director of Public Prosecutions HL 1946
Viscount Simon LC said: ‘as society advances, it ought to call for a higher measure of self-control in a defendant. And with regard to the defence of provocation to a charge of murder: ‘Consequently, where the provocation inspires an actual . .
FollowedRegina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .
CitedRegina v Thornton (Sara) CACD 13-Dec-1995
Battered women’s syndrome may be a relevant characteristic in a murder trial to be taken account of when judging context of provocation. . .
CitedRegina v Dryden 1995
The court considered the defence of provocation to a charge of murder.
Held: ‘eccentric and obsessional personality traits’ were mental characteristics which should have been left for the jury. . .
CitedRegina v Humphreys CACD 1995
Defence of provocation to murder. Abnormal immaturity and attention seeking by wrist slashing were mental characteristics which should have been left for the jury to decide upon. . .
CitedRegina v Raven CACD 1982
The 22-year old defendant had a mental age of 9 years. He said it was inappropriate when judging the availability of the defence of provocation to a charge of murder to ignore that fact. The Recorder of London ruled that, having regard to the test . .
CitedRegina v Baillie 1995
Defence of provocation to charge of murder. . .
CitedRegina v Ahluwalia CACD 31-Jul-1992
The appellant sought substitution of a conviction for manslaughter of her husband for that of his murder. She had long suffered violent treatment by him. She had not raised the issue of diminished responsibility at trial.
Held: The court . .

Cited by:
AppliedRegina v Rowland CACD 12-Dec-2003
The appellant had been convicted of murder. He sought to have substituted a conviction for manslaughter following Smith, and in the light of evidence as to his mental characteristics.
Held: ‘in the context of the law of provocation, the . .
CitedHer Majestys Attorney General for Jersey v Holley PC 15-Jun-2005
(Jersey) The defendant appealed his conviction for murder, claiming a misdirection on the law of provocation. A chronic alcoholic, he had admitted killing his girlfriend with an axe. Nine law lords convened to seek to reconcile conflicting decisions . .
Not followedRegina v Campbell CACD 25-Oct-1996
The defendant appealed against his conviction for murder. At trial he had pleaded provocation, but not that he suffered abnormality of mind. Subsequent evidence of his state of mind led to this referral. The court now received fresh evidence to . .
Not followedRegina v Parker CACD 25-Feb-1997
The defendant appealed his conviction for murder, saying that his defence of provocation should have been left for the jury.
Held: Not following Luc, it was open to admit relevant evidence on the defendant’s capacity for self-control. Having . .
CitedRegina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
CitedJames, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
CitedRegina v Borthwick CACD 18-May-1998
Prior to the trial the appellant had been examined by a psychiatrist, but he refused to allow a more detailed examination to be undertaken and pleaded not guilty on the basis that he denied responsibility for the killing. He was convicted. Shortly . .
CitedMohammed, Regina v CACD 13-Jul-2005
The court granted permission to appeal against a conviction for murder on grounds that related to the judge’s summing up in respect of provocation: ‘Although Holley is a decision of the Privy Council and Morgan Smith a decision of the House of . .

Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Leading Case

Updated: 01 November 2021; Ref: scu.83240

Lawrence v Financial Services Commission: PC 14 Dec 2009

lawrence_fscPC2009

(Jamaica) The appellant challenged a fixed penalty notice issued in respect of a financial services allegation, saying that it had been made without him having been allowed opportunity to be heard by an impartial tribunal.
Held: Actions under the fixed penalty notice procedure had been properly validated. The notice did not require a finding of guilt, but only that the defendant was a person ‘who it has reason to believe has committed an offence’ to which the section relates.
Therefore: ‘whatever the precise form of the notice, there was no question of the determination of the issue whether the appellant was guilty of an offence before the notice was given. There was no issue upon which the appellant was entitled to be heard or to make representations before the notice was given. It follows that there was no breach of natural justice or of the principle that a defendant to criminal or civil proceedings is entitled to a fair hearing. If the defendant wanted to be heard on the question whether he was guilty of the offence alleged, the appropriate course was for him to wait to be prosecuted and to present his defence. He was not deprived of that opportunity by the giving of the notice.’ and ‘the Board sees nothing unlawful in the decision to give the notice or in the giving of the notice. He had no right to be heard before the notice was given.’

Lord Saville, Lord Collins, Lord Kerr, Lord Clarke, Sir Henry Brooke
[2009] UKPC 49
Bailii
Citing:
CitedMcCutcheon v David MacBrayne Ltd HL 21-Jan-1964
The appellant had asked his brother-in-law to have a car shipped from Islay to the mainland. The appellant had personally consigned goods on four previous occasions. On three of them he was acting on behalf of his employer; on the other occasion he . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedYew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
CitedRe McCutcheon and City of Toronto 1983
(Ontario High Court of Justice) The appellant had been given a parking ticket. She could pay a penalty, in which event there would be no further proceedings against her, but if she did not, she would be liable to conviction and payment of a fine. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Financial Services, Natural Justice

Updated: 01 November 2021; Ref: scu.384072

Calvin v Carr: PC 15 Jan 1979

(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their experience in reaching their decision. The appeal process was an essentially domestic proceeding ‘in which experience and opinion as to what is in the interest of racing as a whole play a large part, and in which the standards are those which have come to be accepted over the history of this sporting activity.’
Following the Leary case: ‘In their Lordships’ judgment, such intermediate cases exist. In them, it is for the court . . to decide whether at the end of the day, there has been a fair result reached by fair methods . . Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect appeals or rehearings will not be sufficient to produce a just result . . There may also be cases when the appeal process itself is less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a full and fair enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision.’
and ‘What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation.’
Lord Wilberforce said: ‘those who have joined in an organisation or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect’. The Board considered whether there was a general rule that internal appellate proceedings could cure a defect caused by a failure of natural justice in the original proceedings: ‘. . . their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at the original hearing, whether administrative or quasi-judicial, can be ‘cured’ through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so.’
and ‘This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.’

Wilberforce, Dilhorne, Hailsham of St Marylebone, Keith of Kinkel LL
[1979] UKPC 1, [1979] 2 All ER 440, [1980] AC 574, [1979] 2 WLR 755
Bailii, Bailii
Australia
Citing:
Applied but limitedLeary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .

Cited by:
CitedRegina (DR) (AM) v St George’s Catholic School and Others, Regina (A) v Kingsmead School Governors and Another CA 13-Dec-2002
The applicants appealed the refusal of judicial review of the refusals of their appeals against exclusion from school.
Held: The Act provided a full appeal procedure from the initial decision of the school’s head teacher, first to the . .
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
CitedWhitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
CitedTaylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
CitedLondon and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
CitedMcKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.

Administrative, Employment, Commonwealth, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.245736

Liyanage and others v The Queen: PC 2 Dec 1965

liyanagePC196502

The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the attempted coup in order to criminalise the defendants’ acts: ‘They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the judges, the law should revert to its normal state.’ Hel: These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years’ imprisonment, and compelled to order confiscation of his possessions, even though his part in the conspiracy might have been trivial.
‘If such Acts as these were valid the judicial power could he wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’

Morris of Brth-y-Gest, MacDermott, Guest, Pearson LL
[1965] UKPC 1, [1966] 2 WLR 682, [1967] 1 AC 259, [1966] 1 All ER 650
Bailii
Ceylon Independence Act 1947
Citing:
CitedCampbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
CitedDona Maria Abeyesekera Hamini and Others v Daniel Tillekeratne PC 26-Feb-1897
Ceylon – The Board considered the validity of a retrospective Order in Council. . .
CitedIbralebbe Alias Rasa Wattan Another v The Queen PC 6-Nov-1963
Ceylon – the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State. . .
CitedThe Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .

Cited by:
CitedMisick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.247445

Pointe Gourde Quarrying and Transport Co Ltd v Sub-Intendant of Crown Lands: PC 29 Jul 1947

Under a wartime agreement in 1941 the UK government agreed to lease to the US Government land in Trinidad on which the US could establish a naval base. To do this the Crown acquired the Pointe Gourde land for its limestone quarry which would be used to provide materials to construct the air base. It used compulsory powers to do so. Compensation was to be assessed. The landowner said that the limestone was now more valuable because of the need for it for the air base.
Held: The Board set out the basis for valuation of land purchased compulsorily at common law. The 1919 Act, following the Scott Committee limited compensation payable for the ‘special suitability or adaptability’ of the land with a Rule for assessing compensation; that it should not for any purpose be be taken into account if that purpose is a purpose to which it could be applied only in pursuance of statutory powers, or for which there is no market apart from the special needs of a particular purchaser or the requirements of any Government Department or any local or public authority.
The Act modified ‘the effect of certain decisions of the Courts relating to the quantum of compensation in cases of compulsory purchase’.
The rule did not apply to the facts of this case. The word ‘purpose’ here meant ‘a purpose to which the land can be applied. It therefore connotes ‘a use, actual or potential, of the land itself, and cannot be regarded as meaning a purpose which is only concerned with the use of the products of the land elsewhere’.
The award of andpound;15,000 ‘for special adaptability’ was disallowed because it could only relate to the additional value which was given to the quarry land by the scheme for which the land was acquired, the establishment by the United States of a naval base in Trinidad. In general, any increase or decrease in value due solely to the scheme under which the land is acquired is to be discounted.
Lord MacDermott said: ‘It is well settled that compensation for the compulsory acquisition of land cannot include an increase in value which is entirely due to the scheme underlying the acquisition.’

Lord MacDermott, Lord Oaksey, Lord Morton
[1947] AC 565, (1947) 63 TLR 486, [1947] UKPC 71
Bailii
Acquisition of Land (Assessment of Compensation) Act 1919
England and Wales
Citing:
CitedSouth Eastern Railway Co v London County Council 1915
Compulsory purchase – compensation assessment – ‘Increase in value consequent on the execution of the undertaking for or in connection with which the purchase is made must be disregarded.’ . .
CitedFraser v City of Fraserville PC 1917
One ground on which the arbitrators’ valuation award on a compulsory purchase, was set aside was that, in valuing the falls of a river and adjacent land acquired for electricity generation purposes, the arbitrators had taken into account the . .

Cited by:
CitedWaters and others v Welsh Development Agency CA 28-Jun-2002
The claimant’s land was subject to a compulsory purchase order to make land available for a scheme to make possible a much larger and more valuable scheme. He asserted that the compensation should be calculated in accordance with the value of the . .
CitedC F and M G Roberts v South Gloucestershire District Council LT 31-Dec-1994
LT COMPENSATION – Compulsory purchase of land for the construction of a road – value – assumed planning permission – value of minerals – planning permission for a commercial minerals operation not granted or to . .
CitedBolton Metropolitan Borough Council v Tudor Properties Ltd and Others CA 19-Apr-2000
The court had to consider the compensation to be awarded on the compulsory purchase of land.
Held: The appeal failed. The tribunal had not erred in ascertaining the extent of the underlying scheme. In deciding that, they were entitled to have . .
ExplainedWilson v Liverpool Corporation CA 1971
The claimants owned 74 acres of an area of 391 acres in Liverpool which the Corporation wanted to acquire for residential development. The authority acquired the land by agreement and made a compulsory purchase order in respect of the remainder.
CitedWaters and others v Welsh Development Agency HL 29-Apr-2004
Land was to be compulsorily purchased. A large development required the land to be used to create a nature reserve. The question was how and if at all the value of the overall scheme should be considered when assessing the compensation for this . .
AppliedRugby Joint Water Board v Shaw-Fox HL 1973
The water board obtained a compulsory purchase order to buy agricultural land adjoining a reservoir. The land was subject to protected tenancies under the 1948 Act.
Held: (Majority) Because the land subject to notices to treat was required for . .
CitedDavy v Leeds Corporation HL 1965
The Corporation declared an area in which the appellants owned some slum houses to be a slum clearance area and made a compulsory purchase order. Compensation was to be assessed under the 1919 Act and the 1959 Act. The appellants were entitled to . .
CitedCamrose v Basingstoke Corporation CA 1966
Basingstoke was to be expanded to receive overspill population from London and the corporation contracted to purchase about 550 acres from a landowner on terms that the price would be assessed as though the land had been compulsorily acquired under . .
AppliedMyers v Milton Keynes Development Corporation CA 1974
Land was to be acquired for the development of a new town. The court faced the issue, in the context of a valuation for compulsory purchase, of whether the required disregard of any increase in value attributable to the ‘scheme’ meant that the . .
DevelopedBird and Bird v Wakefield Metropolitan Borough Council 1976
The underlying scheme to be disregarded when calculating compensation on a compulsory purchase need not, as a matter of law, be confined to the area of land compulsorily acquired or to the specific purposes of the CPO. The acquisition may be only a . .
CitedBatchelor v Kent County Council CA 1989
The Council had compulsorily acquired land for highway improvement. It was within an area scheduled for residential development. Outline permission for development of neighbouring land had been granted but the development could not proceed until the . .
CitedJ A Pye (Oxford) Limited v Kingswood Borough Council CA 6-Apr-1998
The purchase of land which was to form the last part of a development was to be valued without taking account of the enhanced value which would be attributed to the much larger scheme of development. To ascertain what is to be ignored by the valuer . .
CitedBatchelor v Kent County Council LT 1-Mar-1987
The tribunal was asked to determine compensation to be paid on the acquisition of two plots of land. The land-owner claimed andpound;9,000,000 and the council offered andpound;5,490. The land-owner claimed the value as ransom as necessary access to . .
CitedNewell and others v Secretary of State for the Environment and Another; Fletcher Estates (Harlescott) Ltd v Secretary of State for the Environment and Another HL 17-Feb-2000
Where a certificate of appropriate development was issued for land to be acquired compulsorily, the land was to be valued at the date of the proposal to acquire it compulsorily allowing a discount for any damage to the value incurred by the long . .
CitedTransport for London (London Underground Ltd) v Spirerose Ltd HL 30-Jul-2009
Compulsory Purchase Compensation – Land As it Is
The House considered the basis of calculation of compensation on the compulsory purchase of land without planning permission, but where permission would probably be granted. The appellant challenged the decision which had treated the probability as . .
CitedGraham v The Council of The City of Newcastle Upon Tyne UTLC 20-Jan-2010
UTLC COMPENSATION – compulsory purchase – open storage land acquired as part of Morrisons foodstore – whether Case 2 of First Schedule to Land Compensation Act 1961 applies where other land not developed in . .
AppliedStar Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
CitedRoberts and Another v South Gloucestershire Council CA 7-Nov-2002
The landowner appealed against the compensation awarded for the compulsory acquisition of his land for use as a road. The owners had been compensated only for its agricultural value, but said that it should have allowed for its value for minerals . .
CitedHomes and Communities Agency v JS Bloor (Wilmslow) Ltd SC 22-Feb-2017
Challenge to the sums awarded on compulsory acquisition of grazing land, but which land had a substantial hope value for residential development.
Held: The tribunal’s application of these difficult provisions to the complex facts of this case . .
CitedWaters and others v Welsh Development Agency LT 3-Nov-2000
LT COMPENSATION – Compulsory purchase of land for purpose of nature reserve to compensate for loss of SSSI caused by Cardiff Bay Barrage – preliminary issues – Land Compensation Act 1961 s 5 rule (3) – Pointe . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Land

Leading Case

Updated: 01 November 2021; Ref: scu.182824

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

ag_adeleaidePC1913

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

Lord Parker
[1913] AC 781
Citing:
CitedMogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .

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

Lists of cited by and citing cases may be incomplete.

Commonwealth, Commercial

Leading Case

Updated: 01 November 2021; Ref: scu.259685

Peters v Sinclair: 6 May 1913

Supreme Court of Canada – S. brought action against P. for trespass on a strip of land called ‘Ancroft Place’ which he claimed as his property and asked for damages and an injunction. ‘Ancroft Place’ was a cul-de-sac running east from Sherbourne Street, and the defence to the action was that it was a public street or, if not, that P. had a right of way over it either by grant or user. On the trial it was shewn that the original owners had conveyed the lots to the east and south of ‘Ancroft Place’ to different parties, each deed describing it as a street and giving a right of way over it to the grantee. The deeds to P.’s predecessors in title did not give him a similar right of way, but some of these conveyances described it as a street. The deed to one of the predecessors in title of S. had a plan annexed shewing ‘Ancroft Place’ as a street fifty feet wide and the grantee was given the right to register said plan. The evidence also established that for 22 years before the action ‘Ancroft Place’ had been entered in the assessment rolls as a public street and had not been assessed for taxes and that the city had placed a gas lamp on the end; also, that for over twenty years it had been used by the owners of the lots to the south and east, and from time to time by the owner on the north side, as a means of access to, and egress from, their respective properties. In 1909 the fee in the land in dispute was conveyed to S. who had become owner of the lots to the east and south.
Held, Idington J. dissenting, Duff J. expressing no opinion, that the evidence was not sufficient to establish that the land had been dedicated to the public, and accepted by the municipality as a street.
Held, further, Idington and Duff JJ. dissenting, that the land was not a ‘way, easement or appurtenance’ to the lot to the north ‘held, used, occupied and enjoyed, or taken or known, as part and parcel thereof’ within the meaning of sec. 12 of ‘The Law and Transfer of Property Act,’ R.S.O., [1897] ch. 119.
Held, also, that, P. had not acquired a right-of-way by a grant implied from the terms of the deeds of the adjoining lots, Duff J. dissenting; nor by prescription, Duff J. expressing no opinion.

Sir Charles Fitzpatrick CJ and Davies, Idington, Duff and Anglin JJ
1913 CanLII 8 (SCC), 48 SCR 57
Canlii
Citing:
CitedAttorney-General v Antrobus ChD 1905
The owner of Stonehenge had enclosed the monument by fencing for its protection. The Attorney-General wished to remove the fencing in order to keep the place open so that the public could visit it.
Held: The court rejected a suggestion that . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Land

Leading Case

Updated: 01 November 2021; Ref: scu.540228

Meerabux v The Attorney General of Belize: PC 23 Mar 2005

(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been decided in private.
Held: It was not suggested that the chairman had any pecuniary interest. A judge of the Supreme court had to be qualified as a barrister, and therefore be a member of the Bar Council in order to sit. Those framing the constitution must have anticipated this apparent conflict, and a chairman should therefore not be automatically disqualified. Not every proceeding must be held in public. The BAC was not a judicial body. The rules of the BAC were designed to ensure fairness, and they were not impugned by the proceedings, nor their privacy.

Lord Hoffmann, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKPC 12, Times 20-Apr-2005, [2005] 2 WLR 1307, [2005] 2 AC 513
Bailii, PC
Belize Constitution 98(4)
Commonwealth
Citing:
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
CitedLeeson v Council of Medical Education and Registration 1889
Mere membership of an association by which proceedings are brought does not disqualify a judge from hearing the case, but active involvement in the institution of the particular proceedings does. Here, mere membership of the Medical Defence Union . .
CitedAllinson v General Council of Medical Education and Registration 1894
The mere ex officio membership of the committee of the Medical Defence Union was held to be insufficient to disqualify the member from sitting on the disciplinary panel. . .
CitedPellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedStewart v Secretary of State for Scotland (Scotland) HL 22-Jan-1998
The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not . .
CitedStewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedKaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Natural Justice

Updated: 01 November 2021; Ref: scu.223880

Kuruma v The Queen: PC 8 Dec 1954

(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord Goddard said: ‘In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.’ However, the court retains a wide discretion to exclude evidence, and: ‘There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused…. If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out’.

Lord Goddard LCJ
[1955] AC 197, [1954] UKPC 43, [1955] 2 WLR 223, [1955] Crim LR 339, (1955) 119 JP 157, [1955] Crim LR 69, [1955] 1 All ER 236
Bailii
Commonwealth
Citing:
ApprovedRegina v Leathem 1861
The court overruled an objection to production of a letter which had been discovered in consequence of an inadmissible statement made by the accused: ‘It matters not how you get it; if you steal it even, it would be admissible.’ . .

Cited by:
ConfirmedDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
ModifiedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
CitedAttorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
CitedThe Public Prosecution Service v Elliott and Another CANI 28-Sep-2011
The prosecutor appealed against dismissal of the case based upon fingerprint evidence. The prints had been taken digitally using a device which had not been approved as required. . .
CitedPublic Prosecution Service v McKee SC 22-May-2013
Non-approval didn’t devalue fingerprints
The court was asked: ‘what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.179806

Prebble v Television New Zealand Ltd: PC 27 Jun 1994

(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of Parliamentary privilege.
Held: A Defendant may not use libel proceedings to impugn proceedings in Parliament in his defence though the proceedings might accordingly be stayed. ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ This provision is part of the wider principle that the courts and Parliament are both astute to recognise their constitutional roles.
Lord Browne-Wilkinson said: ‘In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative function and protection of its established privileges.’
The ‘case illustrate[s] how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings.
For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House . .’

Lord Browne-Wilkinson, Lord keith, Lord Goff, Lord Mustill, Lord Nolan
Times 13-Jul-1994, Gazette 26-Oct-1994, [1995] 1 AC 321, [1994] 3 NZLR 1, [1994] 3 WLR 970
Bailii
Bill of Rights 1689 9
England and Wales
Citing:
CitedComalco Ltd v Australian Broadcasting Corporation 1983
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: ‘I think that the way in . .
CitedSir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
CitedStockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
CitedJohn Joseph Stockdale v James Hansard, Luke Graves Hansard, Luke James Hansard, And Luke Henry Hansard 1839
It is no defence in law to an action for publishing a libel that the defamatory matter is part of a document which was, by order of the House of Comnions, laid before the House, and thereupon became part of the proceedings of the House, and which . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedRex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Not followedWright and Advertiser Newspapers Limited v Lewis 1990
(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, . .
CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedAdam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
CitedDerbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
CitedNews Media Ownership v Finlay 1970
(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of . .

Cited by:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedThe Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
CitedReynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
CitedHarmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedHamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
CitedCountryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedBradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedAge UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
CitedRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedShergill 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. . .
CitedMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Distinguished on the factsBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.85015

Kanda v Government of the Federation of Malaya: PC 2 Apr 1962

A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the officer adjudicating his case.
Held: The failure amounted to a denial of a reasonable opportunity of being heard in answer to the charge and was unfair. Where a conflict was found between an existing law and a provision of the constitution, the Constitution had to prevail.
An essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.
Lord Denning said: ‘In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. In the present case inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard.
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them . . it follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing.’ Lord Denning considered the conflict between the provisions under review and the Malaysian constitution: ‘If there was in any respect a conflict between the existing law and the Constitution . . then the existing law would have to be modified so as to accord with the Constitution.’ and ‘In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution.’

Lord Denning, Lord Hodson, Lord Devlin
[1962] AC 322, [1962] UKPC 2, [1962] 2 WLR 1153, [1962] UKPC 10
Bailii, Bailii
England and Wales
Cited by:
CitedRegina v Criminal Injuries Compensation Authority ex parte Leatherland and Criminal Injuries Compensation Board ex parte Bramall and Criminal Injuries Compensation Panel ex parte Kay Admn 4-Apr-1998
. .
CitedRamda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
CitedP Varghai v Caffyns Plc EAT 19-Dec-2003
EAT Race Discrimination – Inferring discrimination . .
CitedRidge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
CitedRegina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
CitedLewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
CitedDirector of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
CitedBalkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .
CitedSecretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
CitedAl Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
CitedAl Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.251508

Oakes v Commissioner of Stamp Duties of New South Wales: PC 1953

oakes_csdnswPC1954

A father made a gift of land in favour of himself and his four children in equal shares but then retained wide powers of management for which he reserved the right to charge remuneration.
Held: The donor was entirely excluded from the subject-matter of the gift, which was the four fifths interest given to the children, and that his retention of powers of management did not affect the matter. This was because the donor is entirely excluded if he only holds the property in a fiduciary capacity and deals with it in accordance with his fiduciary duty. But the right to charge remuneration was a different matter. This amounted to a benefit to the donor by contract or otherwise.
Lord Reid referred to St Aubin and said: ‘it is now clear that it is not sufficient to bring a case within the scope of these sections to take the situation as a whole and find that the settlor has continued to enjoy substantial advantages which have some relation to the settled property ; it is necessary to consider the nature and source of each of these advantages and determine whether or not it is a benefit of such a kind as to come within the scope of the section’

Lord Reid
[1954] AC 57, [1953] 2 All ER 92
Citing:
CitedSt Aubyn v Attorney General HL 12-Jul-1951
The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .

Cited by:
CitedIngram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
CitedIn re Nichols, deceased CA 2-Jan-1975
The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Stamp Duty

Leading Case

Updated: 01 November 2021; Ref: scu.223763

Attorney General of Hong Kong v Yip Kai Foon: PC 7 Dec 1987

High Court of Hong Kong – The prosecutor appealed against a quashing of a conviction on a charge of handling stolen goods. The defendant had been charged with robbery with handling as an alternative provided under statute.
Held: Where there are true alternative charges of re;lated offences, a jury must acquit on both charges unless one or the other can be proved beyond reasonable doubt to the exclusion of the other.
Lord Ackner said: ‘In their Lordships’ opinion the trial judge, but for the injection into his summing up of the passage quoted above from Chan Tat v R [1973] HKLR 114 at 119, directed the jury quite properly as to the way in which they should approach a count of robbery and the alternative offence of handling. The jury were required to approach the matter by two stages. First, they had to ask themselves whether they were satisfied beyond reasonable doubt that the respondent was guilty of robbery. This would involve rejecting the respondent’s evidence and then being satisfied, so that they felt sure, that the ballistic evidence linked the respondent with the robberies or either of them. If they were not so satisfied, they would then proceed to the second stage, and ask themselves whether the prosecution had satisfied them in relation to each of the ingredients of the alternative offences of handling, which the judge had spelt out with great clarity. Of course, if less than a majority were in favour of convictions of robbery and less than a majority in favour of convictions of handling, then the judge would have to discharge the jury and order a new trial. This case gave rise to no special difficulty or complication.’

Lord Brandon of Oakbrook, Lord Ackner, Lord Oliver of Aylmerton, Sir John Stephenson, Sir Edward Eveleigh
[1987] UKPC 35, [1987] UKPC 4, [1988] 1 All ER 15, (1988) 86 Cr App R 368, [1988] AC 642, [1988] 2 WLR 326
Bailii, Bailii
England and Wales
Citing:
CitedRegina v James Langmead CCCR 1864
The defendant was indicted and tried at Devon Quarter Sessions on two counts, the first count for stealing and the second count for feloniously receiving a number of sheep, the property of Mr. Glanfield, a neighbouring farmer of the Parish of . .
CitedAndrea Obonyo v Regina 1962
East Africa ‘When a person is charged with theft [and the judge told the jury that they could read for ‘theft’, ‘robbery’ because it includes ‘theft’] and, in the alternative, with receiving, and the sole evidence connecting him with the offences is . .

Lists of cited by and citing cases may be incomplete.

Crime

Leading Case

Updated: 01 November 2021; Ref: scu.443481

Maridakis v Kouvaris: 1975

(Supreme Court of the Northern Territory, Australia) The tenant walked out on a lease. He returned the keys and left the premises. The landlord then closed and secured the premises and sought a replacement tenant. The landlord was, however, very particular about a replacement. He could have re-let the premises much earlier than he did.
Held: The landlord was under no duty to mitigate by taking steps to re-let the premises. The handing over and acceptance of the key, the securing of the premises and advertisements seeking a replacement for the tenant had not amounted to an acceptance by the landlord of the tenant’s repudiation of the terms of the lease. Only when a fresh lease was granted to a new tenant would a surrender of the unexpired portion of the lease occur.

Ward J
(1975) 5 ALR 197
Australia
Cited by:
CitedReichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Landlord and Tenant

Leading Case

Updated: 01 November 2021; Ref: scu.396617

Re the Initiative and Referendum Act: PC 1919

Assemply’s Power to Enact for Referendum

The Board heard a referral from the Manitoba government to the Court of King’s Bench for a ruling upon the question of whether the Manitoba Legislative Assembly had jurisdiction to enact a referendum act. Mathers CJ had decided that the legislature had such authority. The Court of Appeal overturned that decision. The parties took the matter directly to the Privy Council without going first to the Supreme Court of Canada.
Held: The lieutenant Governor had no such power. Viscount Haldane ruled the legislation unconstitutional. The Act, which would permit an initiative voted upon by voters at large to become law if approved by a majority without passage through the legislature and without royal assent, was unconstitutional. A ‘legislature may not ‘create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence’
The scheme of the Constitution Act, 1867 was ‘not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.’
The Board stated (obiter) that while a legislature could delegate legislation to subordinate agencies: ‘it does not follow that it can create and endow with its own capacity a new legislative power not created by the British North America Act to which it owes it own existence.’
Viscount Haldane expressed a reservation that the ability to legislate for the government of a territory does not extend to establishing a legislature for a self-governing territory armed with general legislative authority: ‘No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.’

Viscount Haldane
[1919] AC 935
Canada

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.393375

Tan Te Lam v Superintendent of Tai A Chau Detention Centre: PC 27 Mar 1996

(Hong Kong) Migrants from Vietnam of Chinese ethnic origin had landed in Hong Kong by boat, and been refused refugee status. They were detained for several years under section 13D of the Immigration Ordinance ‘pending . . removal from Hong Kong’. However the Ordinance only permitted detention if the period of detention was ‘reasonable having regard to all the circumstances’. It was submitted that the very long period of detention rendered further detention for an indefinite period unreasonable, and therefore unlawful, and that as the Vietnam authorities would not accept repatriation of those they regarded as non-Vietnamese nationals there was no possibility of compulsory removal from Hong Kong, so the detention could not be ‘pending removal’.
Held: Adopting the principle set out in Hardial Singh, in the absence of contrary indications in the statute which confers the powers to detain ‘pending removal’ the power can only be exercised during the period necessary, in all the circumstances of the particular case, to effect removal. Secondly, if it becomes clear that removal is not going to be possible within a reasonable time, further detention is not authorised. Thirdly, the person seeking to exercise the power of detention must take all reasonable steps within his power to ensure the removal within a reasonable time.
The burden lies on the executive to prove on the balance of probabilities the facts necessary to justify the conclusion that a detainee is being detained ‘pending removal’.

Lord Browne-Wilkinson
[1996] UKPC 5, [1997] AC 97, [1996] 4 All ER 256
Bailii
(Hong Kong) Immigration (Amendment) Ordinance 1991 2 13D
England and Wales
Citing:
ApprovedRegina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .

Cited by:
CitedRegina (on the application of Baram etc) v Secretary of State for the Home Department Admn 7-Sep-2001
Asylum seekers had been detained on arrival in the UK, and then released. They challenged the propriety of the detention. The policy was that detention was appropriate where entry had been achieved through breach of immigration control, and did not . .
CitedI, Regina (on the Application of) v Secretary of State for the Home Department CA 28-Jun-2002
The appellant obtained asylum but was convicted of offences after entering, and ordered to be deported. Whilst serving his sentence the deportation order was served, but he was not released on licence at the time he would normally have been . .
CitedSecretary of State for the Home Department v Regina on the Application of Khadir CA 3-Apr-2003
The Secretary of State appealed an order requiring him to reconsider refusal of exceptional leave to remain. The applicant was an Iraqi Kurd. It was not possible to make immediate arrangements for repatriation after the order.
Held: The . .
CitedRegina v Secretary of State for the Home Department Ex parte Saadi and others HL 31-Oct-2002
The applicants were Kurdish asylum seekers. The Home Secretary introduced powers to detain certain asylum seekers for a short period in order to facilitate the speedy resolution of their applications. Only those who it was suspected might run away . .
CitedA v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
CitedKhadir, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Jun-2005
The applicant who had entered England hidden in a lorry, claimed asylum, and had his claim rejected. It was said that as an Iraqi Kurd, he would be safe in the Kurdish area of Iraq. No safe means had been found of ensuring his return over some four . .
CitedHwez and Khadir v Secretary of State for the Home Departmentand Another Admn 29-Jul-2002
. .
CitedSK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
CitedSK (Zimbabwe) v Secretary of State for the Home Department CA 6-Nov-2008
Immigration detention proper after prison release
The Home Secretary appealed against a finding that he had unlawfully detained the applicant. The applicant had been detained on release from prison pending his return to Zimbabwe as recommended by the sentencing judge under section 6 of the 1971 . .
CitedRostami, Regina (on the Application of) v Secretary of State for the Home Department QBD 7-Aug-2009
The claimant had been detained for nearly three years while his application for asylum was determined. He sought judicial review, saying that the detention was unlawful. Whilst in detention he had self harmed and said: ‘I will stay in detention for . .
CitedSaleh, Regina (On the Application of) v Secretary Of State for the Home Department Admn 5-Oct-2009
The claimant challenged his past and continuing detention pending deportation. He had a long series of convictions for dishonesty.
Held: ‘it is indeed disconcerting to find that a non-violent person subject to immigration control has been in . .
CitedMohamed, Regina (on the Application of) v Secretary of State for the Home Department Admn 16-Jun-2003
The claimant challenged his continued detention under the 1971 Act after his appeal to the Immigration Appeal tribunal had been successful. He had been accused of rape, but was convicted of a sexual assault, though still serious. Before being . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedKambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
CitedNouazli, Regina (on The Application of) v Secretary of State for The Home Department SC 20-Apr-2016
The court considered the compatibility with EU law of regulations 21 and 24 of the 2006 Regulations, and the legality at common law of the appellant’s administrative detention from 3 April until 6 June 2012 and of bail restrictions thereafter until . .
CitedB (Algeria) v Secretary of State for The Home Department SC 8-Feb-2018
Bail conditions only after detention
B had been held under immigration detention, but released by SIAC, purportedly in conditional bail, after they found there was no realistic prospect of his deportation because he had not disclosed his true identity. The court was asked ‘whether . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Immigration

Leading Case

Updated: 01 November 2021; Ref: scu.159161

Green v Broadcasting Corporation of New Zealand: PC 18 Jul 1989

Format of TV show not copyrightable

Court of Appeal of New Zealand – The plaintiff had developed the program ‘Opportunity Knocks’ on British television. He claimed copyright in the general structure or format of a similar television programme in New Zealand, and also in passing off. By ‘dramatic format’ the appellant meant the characteristic features of the show which were repeated in each performance. These were the title, the use of various catch phrases, the use of a device called a ‘clapometer’ to monitor audience reaction and the use of sponsors to introduce competitors.
Held: The format of the show was not was a dramatic work protected by copyright. The evidence given to the court was particularly diffuse, taling of gimmicks, such as the use of a ‘clapometer’, and there was no sufficient unity or coherence for a dramatic work to exist under copyright law.
Lord Bridge said: ‘It is stretching the original use of the word ‘format’ a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were ‘structure’ or ‘package’. This difficulty in finding an appropriate term to describe the nature of the ‘work’ in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the question and answers in the quiz show etc.) and identified as an ‘original dramatic work’. No case was cited to their Lordships in which copyright of the kind claimed had been established.
The protection which copyright gives creates a monopoly and ‘there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world:’ Tate v Fulbrook [1908] 1 KB 821, per Farwell J . . The subject matter of the copyright claimed for the ‘dramatic format’ of ‘Opportunity Knocks’ is conspicuously lacking in certainty. Moreover, it seems to their Lordships that a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the ‘format’ of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic.’

Lord Bridge
[1989] RPC 700, [1989] UKPC 26
Bailii
England and Wales
Citing:
ApprovedTate v Fulbrook 1908
Farwell LJ said of the Copyright Acts: ‘The Act creates a monopoly, and in such a case there must be certainty in the subject-matter of such monopoly in order to avoid injustice to the rest of the world.’ Copyright subsists in different categories . .
CitedFrancis Day and Hunter Limited v 20th Century Fox Corporation Limited PC 12-Oct-1939
(Ontario) Copyright protection was asserted on in connection with the title to a film (‘The Man Who Broke the Bank at Monte Carlo’).
Held: It was not a literary work capable of attracting copyright protection. As a rule, such titles do not . .
Appeal fromGreen v Broadcasting Corporation of New Zealand 22-Sep-1988
(Court of Appeal of New Zealand) The plaintiff had created a hugely sucessful TV programme in the UK, called Opportunity Knocks. He now appealed against rejection of his claim in copyright alleging that the defendant had copied the format, and also . .

Cited by:
CitedIPC Media Ltd v Highbury-Leisure Publishing Ltd ChD 21-Dec-2004
The claimant magazine publisher alleged breach of copyright by the defendant in their magazine, as to the cover page designs used. It was not clear just which cover was said to have been copied.
Held: The first step in a copyright action is . .
CitedBaigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
CitedNova Productions Ltd v Mazooma Games Ltd and others ChD 20-Jan-2006
The claimant alleged copyright infringement in respect of computer games in the coin operated video market. It was said not that the games copied bitmap graphics, but rather the composite frames which appeared on the screen.
Held: The games . .
CitedMeakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 01 November 2021; Ref: scu.231500

Wise v The Perpetual Trustee Company Limited (Executors of WH Paling (Deceased): PC 13 Dec 1902

(New South Wales) A trust instrument may exclude by implication any right of the trustee to claim an indemnity against the beneficiaries personally.
Lord Lindley said: ‘Clubs are associations of a peculiar nature. They are societies the members of which are perpetually changing. They are not partnerships; they are not associations for gain; and the feature which distinguishes them from other societies is that no member as such becomes liable to pay to the funds of the society or to any one else any money beyond the subscriptions required by the rules of the club to be paid so long as he remains a member. It is upon this fundamental condition, not usually expressed but understood by every one, that clubs are formed, and this distinguishing feature has been often judicially recognised. It has been so recognised in actions by creditors and in winding-up proceedings.’
Unless a member of an unincorporated association has agreed otherwise, the member will not be liable under contract purportedly entered into on their behalf.

Lord Lindley
[1902] UKPC 59, [1903] AC 139
Bailii
Commonwealth

Commonwealth, Trusts, Company

Leading Case

Updated: 31 October 2021; Ref: scu.419485

Maritime National Fish Ltd v Ocean Trawlers Ltd: PC 12 Apr 1935

(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not include this ship. The charterers claimed that the contract was frustrated. The Supreme Court of Canada had said that the contract remaned binding since the charterers had selected other ships to be licensed.
Held: The decision to opt to licence other ships determined the appeal in favour of the owners. The loss of the St. Cuthbert’s licence was correctly described, quoad the appellants as ‘a self induced frustration.’
Lord Wright, referred to criticism of Krell v. Henry and said: ‘The authority is certainly not one to be extended: it is particularly difficult to apply where, as in the present case, the possibility of the event relied on as constituting a frustration of the adventure (here the failure to obtain a licence) was known to both parties when the contract was made, but the contract entered into was absolute in terms so far as concerned that known possibility. It may be asked whether in such cases there is any reason to throw the loss on those who have undertaken to place the thing or service for which the contract provides at the other party’s disposal and are able and willing to do so.’

Atkin, Tomlin, MacMillan, Wright LL
[1935] UKPC 1, [1935] AC 524, [1935] UKPC 20
Bailii, Bailii
Citing:
CitedBank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .
CitedKrell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
CitedHirji Mulji v Cheong Yue Steamship Co PC 1926
Lord Sumner described the doctrine of frustration as ‘a device by which the rule as to absolute contracts are reconciled with a special exception which justice demands.’ . .
CitedBank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .

Cited by:
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedNorth Shore Ventures Ltd v Anstead Holdings Inc and Others ChD 21-Jun-2010
Claim was made under a substantial loan where payments had not been made after assets were sequestered and only released after four years. . .
CitedGamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.245727

Lee Ting Sang v Chung Chi-Keung: PC 8 Mar 1990

Deciding Whether person was an employee

(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal correctly directing itself on the law could reasonably have reached the conclusion under appeal.’
Lord Griffiths said: ‘Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law . . where, as in the present case, the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, it must now be taken to be firmly established that the question of whether or not the work was performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court. At first sight it seems rather strange that this should be so, for whether or not a certain set of facts should be classified under one legal head rather than another would appear to be a question of law. . [but] in O’Kelly v. Trusthouse Forte Plc. [1984] Q.B. 90 the Court of Appeal . . held that whether or not a waiter was employed under a contract of employment within the meaning of the Employment Protection (Consolidation) Act 1978 was a question of mixed fact and law, and that the finding of an industrial tribunal on this issue, from which an appeal lay on a point of law only, could only be impugned if it could be shown that the tribunal correctly directing itself on the law could not reasonably have reached the conclusion under appeal.’ and
‘Their Lordships conclude that reliance upon these two dicta culled from cases of a wholly dissimilar character, may have misled the courts below in their assessment of the facts of this case and amount in the circumstances to an error of law justifying setting aside what are to be regarded as concurrent findings of fact.
Their Lordships are further of the opinion that the facts of the present case point so clearly to the existence of a contract of service that the finding that the applicant was working as an independent contractor was, to quote the words of Viscount Simonds in Edwards v. Bairstow [1956] A.C. 14, 29, `a view of the facts which could not reasonably be entertained’ and is to be regarded as an error law.’

Lord Griffiths
[1990] ICR 409, [1990] 2 AC 374, [1990] UKPC 1, [1990] UKPC 9, [1990] IRLR 236
Bailii, Bailii, Bailii
England and Wales
Citing:
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .

Cited by:
CitedClark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
CitedYuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedAutoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
CitedHalawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 31 October 2021; Ref: scu.194297

Marshall and Others v Deputy Governor of Bermuda and Others: PC 24 May 2010

marshall_dgPC10

(Bermuda) The claimants challenged their recruitment by conscription to the Bermuda Regiment on several different grounds. The issues now were whether conscription was lawful only where volunters were insufficient, and whether the acceptance of woment should be considered before conscription was applied.
Held: The appeals failed. The Regiment did accept women volunteers. The statute requiring non-discrimination should not be read to treat the offer of employment as a detriment. It had already been found as a fact twice that the Governor had taken reasonable steps to recruit volunteers, and the Board would not normally provide a third consideration of a factual issue, but the claimant said that these decisions had been made against a lack of candour by the respondent with the courts. In these circumstances where a review had not called for any action from the respondent, the duty of candour would not be created unless the claimant had satisfied its own evidential burden. The duty of candour could not be used to transfer the burden of proof where a claimant could itself satisfy that duty.

Lord Phillips, Lord Saville, Lady Hale, Lord Brown, Lord Mance
[2010] UKPC 9, [2010] WLR (D) 133
Bailii, WLRD
Citing:
CitedMinister of Home Affairs v Fisher PC 1979
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
CitedReyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
CitedRegina v Lancashire County Council ex parte Huddleston CA 1986
The respondent council had failed to allocate a university student grant to the claimant and the principle was directed at the duty of that authority to state clearly the reasons for its refusal and the particular factors that had been taken into . .
CitedSrimati Bibhabati Devi v Kumar Ramendra Narayan Roy and Others PC 30-Jul-1946
(Bengal) The appellant sought to claim a substantial inheritance. From many years before it had been thought that he had been buried after dying of syphilis. He claimed he had been resuscitated, taken away and brought up by sanyasi. His identity . .
CitedThe Prime Minister of Belize, The Attorney General of Belize v Vellos, Dawson and Others PC 24-Mar-2010
(Belize) Challenge was made to an Act removing certain constititutional rights which Act was passed without a referendum. The Act amending the constitution to require further amendments to follow a referendum did not itself follow the constitutional . .
CitedRegina v Civil Service Appeal Board, Ex parte Cunningham CA 1991
The court considered the effect of a disciplinary board failing to give reasons. The absence of any right to appeal may be a factor in deciding that reasons should be given. If it is ‘important that there should be an effective means of detecting . .
CitedThompson Ltd and Another v The Bermuda Dental Board PC 9-Jun-2008
(Bermuda) . .
CitedDirector of Public Prosecutions v Hurnam PC 25-Apr-2007
(Mauritius) The Board will not consider a challenge to a finding of fact which has already been tested in two courts below. . .
CitedPilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Armed Forces

Updated: 31 October 2021; Ref: scu.416032