Category: Commonwealth

Eagle Star Insurance Company Limited and Others v National Westminster Finance Australia Limited and Others: PC 24 Jan 1985

(Western Australia) The insurance companies disputed liability to indemnify the owner after the loss of an insured stallion.

Citations:

[1985] UKPC 2, Privy Council Appeal 16 of 1984

Links:

Bailii

Commonwealth, Insurance

Updated: 19 September 2022; Ref: scu.443651

Frankland and Another v Regina: PC 3 Mar 1987

Isle of Man – the defendants appealed against their conviction for murder. The Board was asked whether, having regard to all the circumstances of the offence, including the fact of intoxication, the Crown had proved beyond reasonable doubt a murderous intent.
Held: The Board considered the status of decisions of English courts in the Isle of Man.
‘Decisions of English Courts, particularly decisions of the House of Lords and the Court of Appeal in England, are not binding on Manx Courts, but they are of high persuasive authority, as was correctly pointed out by Sir Iain Glidewell in giving the judgment of the Staff of Government Division, Criminal Jurisdiction. Such decisions should generally be followed unless either there is some provision to the contrary in a Manx statute or there is some clear decision of a Manx Court to the contrary, or, exceptionally, there is some local condition which would give good reason for not following the particular English decision. The persuasive effect of a judgment of the House of Lords, which has largely the same composition as the Judicial Committee of the Privy Council, the final Court of Appeal from a Manx Court, is bound to be very high.’

Judges:

Lord Mackay of Clashfern, Lord Elwyn-Jones, Lord Ackner, Lord Oliver of Aylmerton, Lord Goff of Chieveley

Citations:

[1987] UKPC 3, [1987] UKPC 6

Links:

Bailii, Bailii

Commonwealth, Crime, Constitutional

Updated: 17 September 2022; Ref: scu.443449

Kwan Ping Bong and Kong Ching v The Queen: PC 16 Nov 1978

(Hong Kong) In reaching its conclusions it is open to the court to draw inferences from primary facts which it finds established by evidence. A court may not, however, infer the existence of some fact which constitutes an essential element of the case unless the inference is compelling i.e. such that no reasonable man would fail to draw it.
Lord Diplock said: ‘The requirement of proof beyond all reasonable doubt does not prevent a jury from inferring, from the facts that have been the subject of direct evidence before them, the existence of some further fact, such as the knowledge or intent of the accused, which constitutes an essential element of the offence; but the inference must be compelling — one (and the only one) that no reasonable man could fail to draw from the direct facts proved.’

Judges:

Lord Diplock

Citations:

[1978] UKPC 28, [1979] 2 WLR 433, [1979] AC 609

Links:

Bailii

Cited by:

Cited – Regina v Jabber CACD 2006
As to the case of Kwan Ping Bong, Moses LJ said: ‘Read literally, Lord Diplock’s dicta might be understood to be saying that an inference was only to be regarded as compelling if all juries, assumed to be composed of those who are reasonable, would . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 17 September 2022; Ref: scu.443355

Hilborne v The Law Society of Singapore: PC 7 Mar 1978

Singapore – disciplinary decision against lawyers can be regarded as a civil matter for the purpose of considering the jurisdiction of the appellate court

Judges:

Diplock, Fraser of Tullbelton, Russell of Killowen LL

Citations:

[1978] 1 WLR 841, [1978] UKPC 6, [1978] 2 All ER 757

Links:

Bailii

Commonwealth, Legal Professions

Updated: 17 September 2022; Ref: scu.443336

Colonial Life Insurance Co (Trinidad) Ltd v The Board of Inland Revenue Trinidad and Tobago Co: PC 1 Jul 1991

(Trinidad and Tobago) The Board was asked whether income reveived ny the appellant from the investment of monies paid to it as consideration for the provision of pensions for employees for contributing companies was exempt from corporation tax as ‘profits of approved annuity business’.

Citations:

[1991] UKPC 25

Links:

Bailii

Commonwealth, Corporation Tax

Updated: 17 September 2022; Ref: scu.442674

Kelly v Cooper and Cooper Trading As Cooper Associates (A Firm) Co: PC 19 Oct 1992

Bermuda – The fiduciary obligations imposed on an agent will depend on the express and implied terms of the contract. Although an agent is, in the absence of contractual provision, in breach of his fiduciary duties if he acts for another who is in competition with his principal, if the contract under which he is acting authorises him so to do, the normal fiduciary duties are modified accordingly

Citations:

[1993] AC 205, [1992] UKPC 30, [1992] 3 WLR 936, [1993] ANZ Conv R 138

Links:

Bailii

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency, Trusts

Updated: 17 September 2022; Ref: scu.442494

Marley and Others v Mutual Security Merchant Bank and Trust Co Ltd Co: PC 2 Feb 1995

(Jamaica)

Citations:

[1995] UKPC 3

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Marley and 11 Others v Mutual Security Merchant Bank and Trust Co Ltd Co PC 15-Oct-1990
BANKING – EQUITY, TRUSTS, PROBATE ADMINISTRATOR’S POWERS OF INVESTMENT Bank as sole administrator cannot invest estate funds in its own deposits in the absence of express sanction in the trust instrument.
Lord Oliver of Aylmerton said: ‘A . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 17 September 2022; Ref: scu.442314

Thakur Persad Jaroo v Attorney-General of Trinidad and Tobago: PC 4 Feb 2002

(Trinidad and Tobago) The appellant sought a declaration that his constitutional rights had been infringed. He had bought a car. When told it may be stolen, he took it to the police station, but after he heard nothing and it was not returned. He alleged that he had been deprived of his property in breach of the constitution. Only later did the police say it was still required as potential evidence. He claimed that the car had been held other than under due process.
Held: To justify the continued detention of the car, the police had to show that there were reasonable grounds for its original and continuing retention. There were common law rights, by way of an originating motion, which the claimant could have exercised to make his complaint. He should take the method of constitutional challenge only in an exceptional case. This was not one, and the continued action was an abuse of process. Lord Hope of Craighead: ‘Their Lordships wish to emphasise that the originating motion procedure under section 14(1) is appropriate for use in cases where facts are not in dispute and questions of law only are in issue. It is wholly unsuitable in cases which depend for their decision on the resolution of disputes as to fact. Disputes of that kind must be resolved by using the procedures which are available in the ordinary courts under the common law.’

Judges:

Lord Hope of Craighead, Lord Browne-Wilkinson, Lord Scott of Foscote, Sir Christopher Slade and Sir Andrew Leggatt

Citations:

Times 06-Feb-2002, Appeal No 54 of 2000, [2002] UKPC 5, [2002] 1 AC 871

Links:

PC, Bailii

Statutes:

Constitution of Trinidad and Tobago 4(a)

Jurisdiction:

Commonwealth

Citing:

Cited – Nankissoon Boodram v Attorney-General of Trinidad and Tobago PC 19-Feb-1996
The court considered the effect of prejudicial reporting on a trial: ‘In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge . .
Cited – Ghani v Jones CA 1970
The court was asked as to the powers of the police to retain objects taken and impounded.
Held: The privacy and possessions of an individual were not to be invaded except for the most compelling reasons.
Lord Denning MR said: ‘Balancing . .

Cited by:

Cited – Settelen and Another v Commissioner of Police of the Metropolis ChD 29-Sep-2004
The claimants had made application for tapes held by the respondent to be released. The claimant offered undertakings as to their preservation, and agreement had been reached. The outstanding issue was as to costs. The tapes were recorded by the . .
Cited – Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Police, Commonwealth

Updated: 16 September 2022; Ref: scu.167566

Christchurch Pavilion Partnership No 1 and Others v Deloitte and Touche Tohmatsu Trustee Company Limited: PC 4 Feb 2002

(New Zealand) A scheme was created for the construction of a major residential complex. The disappointed investors now claimed damages from the professional supervising ‘statutory’ trustees, after their money was lost. The minimum subscriptions had not been received, but the transaction proceeded.
Held: Despite the failings, the claimants had failed to show that the damages actually suffered flowed directly from the defendants’ failings. They might well have suffered the same loss without the errors.

Judges:

Lord Slynn of Hadley Lord Mustill Lord Scott of Foscote Sir Christopher Staughton Sir John Roch

Citations:

[2002] UKPC 4

Links:

PC, PC, Christchurch Pavilion ‘ target=’_n’>PC, Bailii, PC

Statutes:

Securities Act 1978 (New Zealand)

Jurisdiction:

England and Wales

Commonwealth, Financial Services, Professional Negligence

Updated: 16 September 2022; Ref: scu.167602

New South Wales v Lepore: 6 Feb 2003

Austlii (High Court of Australia) 1. Appeal allowed in part
2. Paragraph 2 of the order of the Court of Appeal of New South Wales made on 23 April 2001 set aside, and in its place, order that the judgment entered in the District Court on 16 April 1999 be wholly set aside and that there be a new trial.
3. Appellant to pay the costs of the appeal to this Court.
4. Costs of the new trial to abide its outcome.
Callian J (majority) said: ‘Education authorities do not owe to children for whose education they are responsible (absent relevant contractual provision to the contrary) a particular or unique non-delegable duty of care, in practical terms, giving rise to absolute liability. There is no doubt that the ordinary standard of care in the case of such authorities is a very high one. Their duties include the engagement of reliable, and carefully screened, properly trained employees, and the provision: of suitable premises; an adequate system for the monitoring of employees; and, I would think, because, regrettably, the incidence of sexual abuse seems to have been more common than had previously been thought, an efficient system for the prevention and detection of misconduct of that kind. In saying what I have, I do not intend to state comprehensively a catalogue of the duties to which the relationship of education authority and pupil may give rise. But I do agree with the Chief Justice that absent fault on the part of an education authority, it will not be personally liable in situations of the kind with which these cases are concerned’.
McHugh J. (minority: he alone would have found non-delegable duties in the particular circumstances) said: ‘a State education authority owes a duty to a pupil to take reasonable care to prevent harm to the pupil. The duty cannot be delegated. If, as is invariably the case, the State delegates the performance of the duty to a teacher, the State is liable if the teacher fails to take reasonable care to prevent harm to the pupil . . The duty arises on the enrolment of the child. It is not confined to school hours or to the commencement of the teachers’ hours of employment at the school. If the authority permits a pupil to be in the school grounds before the hours during which teachers are on duty, the authority will be liable if the pupil is injured through lack of reasonable supervision. In Geyer v Downs this Court held that the education authority was liable for injuries suffered by a pupil playing in the school grounds at about 8.45am although teachers at the school were not required to be on duty at that time . . The duty extends to protecting the pupil from the conduct of other pupils or strangers and from the pupil’s own conduct The measure of the duty is not that which could be expected of a careful parent.
Murphy and Aickin JJ rejected the parent analogy in Geyer v Downs saying that it was unreal to apply that standard to ‘a schoolmaster who has the charge of a school with some 400 children, or of a master who takes a class of thirty or more children’.

Judges:

Gleeson CJ, Gaudron, Mchugh, Gummow, Kirby, Hayne and Callinan JJ

Citations:

[2003] HCA 4, (2003) 212 CLR 511, (2003) 195 ALR 412, (2003) 77 ALJR 558, (2003) 24 Leg Rep 2

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011
The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
Cited – NA v Nottinghamshire County Council CA 12-Nov-2015
Appeal against finding that a local authority was not responsible for the sexual abuse of the appellant whilst with foster carers as a child.
Held: As to whether the duty as non-delegable, such a duty must relate to a function which the local . .
Cited – Armes v Nottinghamshire County Council SC 18-Oct-2017
The claimant had been abused as a child by foster parents with whom she had been placed by the respondent authority. The court was now asked, the Council not having been negligent, were they in any event liable having a non-delegable duty of care . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 16 September 2022; Ref: scu.445625

Webster v Attorney General (Trinidad and Tobago): PC 18 Jul 2011

The claimant appealed against an order striking out substantial elements of his claim against the police for assault.

Judges:

Lord Phillips, Lord Walker, Lord Wilson

Citations:

[2011] UKPC 22

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other, Police, Constitutional

Updated: 16 September 2022; Ref: scu.442112

Freeman v Fairlie: PC 1828

The tenure of land in Calcutta is of the nature of freehold, and real estate will not therefore pass by an unattested Will. The Pottah granted by the Collector is not a muniment of title, but only an evidence of holding, according to a local and fiscal regulation.

Citations:

[1828] EngR 63, (1828) 1 Moo Ind App 305, (1828) 18 ER 117, [1828] UKPC 2

Links:

Commonlii, Bailii

Jurisdiction:

England and Wales

Land

Updated: 15 September 2022; Ref: scu.462915

Sharma v Brown-Antoine, Deputy Director of Public Prosecutions and others: PC 30 Nov 2006

(Trinidad and Tobago) Complaint was made as to a decision to begin professional discliplinary proceedings against a senior member of the judiciary.
Held: Although a decision to prosecute was in principle susceptible to judicial review on the ground of interference with a prosecutor’s judgment, such relief would in practice be granted extremely rarely and that the court had to be satisfied, not only that the claim had a realistic prospect of success, but also that the complaint could not be resolved within the criminal process, either at the trial or by way of an application to stay for abuse of process. Since all the issues could best be investigated and resolved in a single set of criminal proceedings, permission for judicial review ought not to have been granted and had rightly been set aside. The test on the permission application is whether on the material before the court, the claimants have an arguable case which merits an oral hearing
Lord Bingham, for the Privy Council, said: ‘The rule of law required that, subject to any immunity or exemption provided by law, the criminal law of the land should apply to all alike. A person is not to be singled out for adverse treatment because he or she holds a high and dignified office of State, but nor can the holding of such an office excuse conduct which would lead to the prosecution of one not holding such an office. The maintenance of public confidence in the administration of justice required that it be, and be seen to be, even-handed.’

Judges:

Lord Bingham of Cornhill, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell, Lord Mance

Citations:

[2006] UKPC 57, [2007] 1 WLR 780

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Panday v Virgil PC 9-Apr-2008
(Trinidad and Tobago) The defendant’s appeal against conviction had succeeded on the basis of apparent bias in the tribunal. He now appealed the order remitting the case to be reheard, saying that a fair trial was no longer possible.
Held: The . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
See also – McNicholls v Judicial and Legal Service Commission PC 17-Feb-2010
(Trinidad and Tobago) The appellant, the Islands’ chief magistrate appealed against a decision to proceed with disciplinary allegations against him. He had refused to give evidence in a prosecution of the then Chief Justice, though his own statement . .
Cited – Sher and Others v Chief Constable of Greater Manchester Police and Others Admn 21-Jul-2010
The claimants, Pakistani students in the UK on student visas, had been arrested and held by the defendants under the 2000 Act before being released 13 days later without charge. They were at first held incognito. They said that their arrest and . .
Cited – Chaytor 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 . .
Cited – Loughlin, Re Application for Judicial Review SC 18-Oct-2017
The court was asked as to the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Judicial Review

Updated: 14 September 2022; Ref: scu.247459

Bouzari v Islamic Republic of Iran: 2004

(Court of Appeal of Ontario) The court had to consider ‘between the condemnation of torture as an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other’s jurisdiction.’

Citations:

(2004) 71 OR (3d) 675

Jurisdiction:

Canada

Cited by:

Cited – Jones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 14 September 2022; Ref: scu.242886

El Greco (Australia) Pty Ltd v Mediterranean Shipping Co SA: 10 Aug 2004

(Federal Court of Australia) ADMIRALTY AND MARITIME LAW – carriage of goods by sea – Hague-Visby Rules – Australian COGSA Art 3 Rules 3, 4 and 8 – method for assessing value of cargo – where no ‘commodity exchange price’ or ‘current market price’ – where ‘normal value’ of goods at destination not determined. ADMIRALTY AND MARITIME LAW – limitation of liability – bill of lading – how to treat posters and prints enumerated as ‘pieces’ – whether an enumeration of packages or units – whether contractual limitation applies. STATUTORY INTERPRETATION – construction of Carriage of Goods by Sea Act 1991 (Cth), Art 4 Rule 5(c) – meaning of ‘enumeration of packages or units’ – meaning of ‘as packed’.

Judges:

Black, Beaumont, Allsop JJ

Citations:

[2004] FCAFC 202, [2004] 2 Lloyd’s Rep 537

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
Lists of cited by and citing cases may be incomplete.

Transport

Updated: 14 September 2022; Ref: scu.222770

Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others): PC 16 May 2006

(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a majority shareholder in the Isle of Man company, but had no involvement in the New York proceedings and resisted the vesting order.
Held: The appeal failed. If the New York order was in rem, then it could not affect title to shares in the Isle of Man. If in personam, the court had a wide common law discretion, but the action had been brought against the wrong party. However the order was neither: ‘The purpose of bankruptcy proceedings . . is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. That mechanism may vary in its details.’
The Manx court had jurisdiction to assist the committee of creditors, as appointed representatives under the Chapter 11 order, to give effect to the plan. As there was no suggestion of prejudice to any creditor in the Isle of Man or local law which might be infringed, there was no discretionary reason for withholding such assistance.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Hutton, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2006] UKPC 26, [2007] 1 AC 508, [2006] 3 WLR 689

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Solomons v Ross 1764
A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach andpound;1200 owing to the Dutch firm.
Held: The court decreed that the bankruptcy had vested all the . .
Cited – Wight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Cited – In re Lines Bros Ltd CA 1982
The liquidators in a creditors voluntary liquidation converted foreign currency debts of the company into Sterling at the rate of exchange prevailing at the date of the resolution to wind up. As a result of the depreciation of Sterling against the . .
Cited – Re Davidson’s Settlement Trusts 1873
English moveables may vest automatically in a foreign trustee or assignee where the bankrupt submitted to this jurisdiction. . .
Cited – Ayerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
Cited – Borland’s Trustee v Steel Brothers 1901
Farwell J defined a share: ‘a share is the interest of a shareholder in the company measured by a sum of money, for the purpose of liability in the first place, and of interest in the second’. . .
Cited – Re Oceanic Steam Navigation Co Ltd 1939
In the case of an insolvent company, in which the shareholders have no interest of any value, the court may sanction a scheme which leaves them with nothing. . .

Cited by:

Cited – McGrath and others v Riddell and others HL 9-Apr-2008
(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 11 September 2022; Ref: scu.241830

Wight, Pilling, Mackey v Eckhardt Marine GmbH: PC 14 May 2003

(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Held: The insolvency discharged the debts and the claimants had no case. The intention had been to isolate and preserve the Bangladeshi debts against the liquidation. The winding up order had had no effect on the respondent’s debt, its situs or its proper law. It had been provable even though the lex situs and proper law were both in Bangladesh.
Lord Hoffmann said: ‘The winding up leaves the debts of the creditors untouched. It only effects the way in which they can be enforced. When the order is made, ordinary proceedings against the company are stayed . . The creditors are confined to a collective enforcement procedure that results in pari passu distribution of the company’s assets. The winding up does not either create new substantive rights in the creditors or destroy the old ones. Their debts, if they are owing, remain debts throughout. They are discharged by the winding up only to the extent that they are paid out of dividends. But when the process of distribution is complete, there are no further assets against which they can be enforced. There is no equivalent of the discharge of a personal bankrupt which extinguishes his debt.’

Judges:

Lord Hoffmann, Lord Nolan, Lord Hobhouse of Woodborough, Lord Scott of Foscote Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 37, Times 06-Jun-2003, [2004] 1 AC 147

Links:

PC, Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Buhr v Barclays Bank plc CA 26-Jan-2001
The bank took a second charge over property, but failed to get it registered. The chargors fell into debt and bankruptcy, and the property was sold. The proceeds were used to discharge the first charge, and then repay unsecured creditors. The bank . .
Cited – In re Banque des Marchands de Moscou (Koupetschesky) (No 2) CA 1954
A Russian bank operated in Russia. It had no branch in England, but did have an account, in credit, with a bank in London. On December 15, 1917 the bank was nationalized by a decree of the soviet government. On December 16th 1917, two documents were . .
Cited – Re Banque des Marchands de Moscou (Koupetschesky) 1952
. .
Cited – In re Russian Bank for Foreign Trade 1933
Soviet legislation involved an extinguishment of the rights and obligations of the commercial banks and the creation of equivalent obligations on the part of a new State Bank. . .
Cited – In re United Railways of the Havana v Regla Warehouses Ltd CA 1960
There had been a financing transaction by way of a lease by a Pennsylvania corporation, as trustee for foreign bondholders, to an English company carrying on business in Cuba, of assets in Cuba. By a Cuban decree the assets were transferred to the . .
Cited – F and K Jabbour v Custodian of Israeli Absentee Property 1953
The court was asked as to the effect of foreign regulations on the ownership of a right of action under an insurance policy, and for that purpose examined whether the plaintiff’s claim against the insurance company was a ‘mere right to claim . .
Cited – In re Humber Ironworks and Shipbuilding Co 1869
The assets of a company held on the statutory trusts should be distributed as if they had all been collected and distributed on the date of the winding up order: ‘I think the tree must lie as it falls; that it must be ascertained what are the debts . .

Cited by:

Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – Law Society of England and Wales and others v Shah and others ChD 30-Nov-2007
Solicitor firms had been made bankrupt leaving a shortfall after thefts from client accounts of over 12 million pounds. The thief had diappeared, and the other partners were now discharged form bankruptcy. The Law Society accepted that it could not . .
Cited – Cambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
Cited – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .
Cited – Global Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Banking, Jurisdiction

Updated: 11 September 2022; Ref: scu.183086

Challenge Corporation Ltd v Commissioner of Inland Revenue: PC 1987

(New Zealand)

Citations:

[1987] AC 155

Jurisdiction:

England and Wales

Cited by:

Cited – O’Neil, O’Neil, McDougall, and McDougall v Commissioner of Inland Revenue PC 10-Apr-2001
PC (New Zealand) An accountant arranged a scheme which purported to return the applicants’ entire income without deduction of tax as a return of capital. The revenue sought to treat it as tax avoidance.
Lists of cited by and citing cases may be incomplete.

Income Tax, Commonwealth

Updated: 11 September 2022; Ref: scu.192036

D’Orta-Ekenaike v Victoria Legal Aid: 10 Mar 2005

(High Court of Australia) Legal practitioners – Negligence – Immunity from suit – Applicant sought legal assistance from first respondent, a statutory corporation deemed to be a firm of solicitors, in defence of criminal prosecution – First respondent retained second respondent, a barrister, to appear for applicant at committal proceedings – Applicant pleaded guilty at committal proceedings but subsequently pleaded not guilty and stood trial – Evidence of guilty plea led at first trial – Applicant convicted but verdict quashed on appeal and new trial ordered – Applicant acquitted on retrial – Respondents alleged to have been negligent in advising applicant to plead guilty at committal – Advice allegedly tendered at a conference two days prior to committal proceeding and at a further conference on day of committal proceeding – Whether advocate’s immunity available to respondents – Whether advocate’s immunity applied in respect of advice allegedly given in conference.
Legal practitioners – Immunity from suit – Legal Profession Practice Act 1958 (Vic) – Barristers liable for negligence to same extent as solicitor as at 1891 – Extent of solicitor’s liability for negligence in 1891.
Courts – Judicial process – Judicial process as an aspect of government – Nature of the judicial process – The need for finality of judicial determination – Whether advocate’s immunity necessary to ensure finality of judicial process.
Courts – Abuse of process – Whether rules about abuse of process provide sufficient satisfaction of the finality principle – Nature of client’s complaint – Whether distinction exists between civil and criminal proceedings – Whether distinction to be drawn between challenging the final outcome of litigation and challenging an intermediate outcome.
High Court – Whether Giannarelli v Wraith (1988) 165 CLR 543 should be reconsidered – Relevance of statutory changes since Giannarelli v Wraith – Relevance of developments in common law in England and Wales – Relevance of experience in other jurisdictions.
Courts – Practice and procedure – Summary determination of action without trial – Whether claim revealed an arguable cause of action.

Citations:

[2005] HCA 12, (2005) 223 CLR 1, (2005) 214 ALR 92, (2005) 79 ALJR 755

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 08 September 2022; Ref: scu.431603

Chamberlains v Lai: 11 Sep 2006

NZLII Supreme Court of New Zealand) [1] Access to the courts for vindication of legal right is part of the rule of law. Immunity from legal suit where there is otherwise a cause of action is exceptional. Immunity may be given by statute, as in New Zealand in respect of personal injuries where other, exclusive, redress is provided. An immunity may attach to status, such as of diplomats or heads of state. All cases of immunity require justification in some public policy sufficient to outweigh the public policy in vindication of legal right.
[2] Public policy is not static. So, for example, the immunities of the Crown have been progressively rolled back in response to changing attitudes as to where the public interest lies. And the wide immunity at common law for states and heads of state has been restricted and modified by modern legislation and judicial decisions, often under the influence of developing international law.
[3] The present appeal raises the question whether public policy justifies retention of a limited common law immunity for legal practitioners from claims by their clients for professional negligence. In principle, all who undertake to give skilled advice are under a duty to use reasonable care and skill. An immunity which shields legal practitioners from liability for breach of that duty is anomalous. No other professional group is immune from liability for breach of duties of care they owe to those they advise, treat or represent.
[4] The existing immunity, which attaches to court representation and work ‘intimately connected’ with it, was not clearly established as a matter of New Zealand law until the 1973 Court of Appeal decision in Rees v Sinclair. Rees v Sinclair applied the 1967 decision of the House of Lords in Rondel v Worsley. The immunity recognised in Rondel v Worsley was also adopted in the same form in Australia. No such sweeping immunity is known in Canada or in the United States federal jurisdiction.
[5] Rondel v Worsley has been controversial. Eleven years after it was decided, Lord Diplock in Saif Ali v Sydney Mitchell and Co expressed regret that the argument in that case had not extended to:
. . a more radical submission that the immunity of the advocate, whether barrister or solicitor, for liability for negligence even for what he says or does in court ought no longer to be upheld.

Judges:

Elias CJ

Citations:

[2006] NZSC 70

Links:

Nzlii

Jurisdiction:

England and Wales

Cited by:

Cited – Jones v Kaney SC 30-Mar-2011
An expert witness admitted signing a joint report but without agreeing to it. The claimant who had lost his case now pursued her in negligence. The claimant appealed against a finding that the expert witness was immune from action.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 08 September 2022; Ref: scu.431604