Category: Commonwealth

The Mahkutai: PC 24 Apr 1996

(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the cargo-owners an exclusive jurisdiction clause contained in that contract.
Held: Ship owners may not rely on an exclusive jurisdiction clause in a charterer’s contract. They could not because the Himalaya clause in the bill of lading, which extended the benefit of all ‘exceptions, limitations, provision, conditions and liberties herein benefiting the carrier’ to ‘servants, agents and subcontractors of the carrier’ did not include the exclusive jurisdiction clause because an exclusive jurisdiction clause is a mutual agreement and does not benefit only one party. Rather the rights conferred entail correlative obligations. A contract (and in particular a Himalaya clause) must be construed to give commercial effect if possible.

Judges:

Lord Goff of Chieveley

Citations:

Times 24-Apr-1996, [1996] AC 650, [1996] 3 WLR 1

Jurisdiction:

England and Wales

Citing:

Cited – New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd (The Eurymedon) PC 25-Feb-1974
The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the . .

Cited by:

Cited – Homburg Houtimport BV v Agrosin Private Ltd (the ‘Starsin’) HL 13-Mar-2003
Cargo owners sought damages for their cargo which had been damaged aboard the ship. The contract had been endorsed with additional terms. That variation may have changed the contract from a charterer’s to a shipowner’s bill.
Held: The specific . .
Cited – Borkan General Trading Ltd v Monsoon Trading Ltd CA 8-Jul-2003
A contract for a tug expressly provided a benefit for a third party. He now sought to claim benefit under it.
Held: If, in the absence of a trust in his favour a third party for whose benefit a contract had expressly been made, could not take . .
Cited – Nisshin Shipping Co Ltd v Cleaves and Company Ltd and others ComC 7-Nov-2003
One party sought a declaration that arbitrators should have no jurisdiction to determine claims for commission said to be due to the Respondent chartering brokers.
Held: Because he has in effect become a statutory assignee of the promisee’s . .
Lists of cited by and citing cases may be incomplete.

Transport, Jurisdiction, Contract, Arbitration

Updated: 08 July 2022; Ref: scu.89834

Distiller’s Co (Biochemicals) Ltd v Thompson: PC 19 Jan 1971

(Australia) There had been a negligent failure in New South Wales to warn a pregnant woman of the dangers of taking the drug thalidimide.
Held: When looking at jurisdiction to hear a complaint of a tort, the court should look to where in substance the tort was committed. Lord Pearson said: ‘It is not the right approach to say that, because there was no complete tort until the damage occurred, therefore the cause of action arose wherever the damage happened to occur. The right approach is, when the tort is complete, to look back over the series of events constituting it and ask the question: where in substance did this cause of action arise?’
and it was ‘manifestly just and reasonable that a defendant should have to answer for his wrongdoing in the country where he did the wrong’.

Judges:

Lord Pearson, Lord Reid, Lord Morris, Lord Upjohn, Lord Donovan

Citations:

[1971] AC 458, [1971] UKPC 3, [1971] 1 All ER 694, [1971] 2 WLR 441

Links:

Bailii

Statutes:

New South Wales Common Law Procedure Act 1899 18(4)

Cited by:

Cited – Ashton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
Cited – VTB Capital Plc v Nutritek International Corp and Others SC 6-Feb-2013
The claimant bank said that it had been induced to create very substantial lending facilities by fraudulent misrepresentation by the defendants. They now appealed against findings that England was not clearly or distinctly the appropriate forum for . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction, Commonwealth

Updated: 08 July 2022; Ref: scu.245757

Almeida v Opportunity Equity Partners Ltd: PC 3 Oct 2006

(Cayman Islands) The Board was asked as to whether there had been a ‘fundamental failure of justice’ in the trial of the action, and as to the principles to be applied on ordering a new trial by judge alone.

Judges:

Lord Hope of Craighead, Lord Steyn, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 44

Links:

Bailii

Commonwealth, Litigation Practice

Updated: 08 July 2022; Ref: scu.245387

Nelson Marketing International Inc v Royal and Sun Alliance Insurance Co. of Canada: 28 Jun 2006

(British Columbia Court of Appeal) Shipments of laminated truck flooring were damaged by moisture absorbed by the flooring in the course of manufacture, which on the voyage had evaporated and condensed in circumstances which were not established to be other than what was expected in the ordinary course of the voyages in question.

Citations:

2006 BCCA 327

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – Global Process Systems Inc and Another v Berhad SC 1-Feb-2011
An oil rig (The Cendor MOPU) was being transported from Texas to Malaysia. During the voyage, three of the four legs suffered damage. The insurers refused liability saying that the damage was the result of inherent weaknesses in the rig.
Held: . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insurance

Updated: 07 July 2022; Ref: scu.428505

Ingraham and others v Glinton and Another: PC 24 Jul 2006

(the Bahamas ) The Board was asked whether the Supreme Court of the Bahamas has jurisdiction to strike out proceedings brought by way of an application under article 28 of the Constitution of the Bahamas alleging a contravention of the Constitution on the basis that it discloses no reasonable cause of action.

Judges:

Lord Rodger of Earlsferry, Lord Steyn, Lord Walker of Gestingthorpe, Lord Carswell
Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 40, [2007] 1 WLR 1

Links:

Bailii

Commonwealth, Constitutional

Updated: 07 July 2022; Ref: scu.243386

Samuel Knowles, Junior v United States of America and Another: PC 24 Jul 2006

(The Bahamas) The respondent sought the extradition of the appellant to face drugs charges. The appellant said that if extradited, he would not receive a fair trial, having been declared publicly by the US President to be a drugs ‘kingpin’.
Held: It was wrong to suggest that the role of the Supreme Court on an application for habeas corpus in criminal proceedings (such as extradition) is to review the formal validity of an order for detention and not enquire into its substantial merits, but as the law applied at the time, there was no appeal for a prosecutor against the grant of habeas corpus.

Judges:

Lord Bingham of Cornhill, Lord Hutton, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2006] UKPC 38, [2007] 1 WLR 47

Links:

Bailii

Citing:

See Also – Cartwright and Knowles v The Superintendant of Her Majesty’s Prison and The Government of the United States of America PC 10-Feb-2004
PC (Bahamas) A warrant for extradition had been held to be void, and the prisoners released. It was argued that the US government had no right of appeal.
Held: Section 17(3) of the Court of Appeal Act was . .
Cited – Cox v Hakes HL 5-Aug-1890
No Appeal from Order granting Habeas Corpus
Where a person has been discharged from custody by an order of the High Court under a habeas corpus the Court of Appeal has no jurisdiction to entertain an appeal.
So held by Lord Halsbury L.C. and Lords Watson, Bramwell, Herschell, and . .
See Also – Knowles and others v Superintendent of HM Prison Fox Hill and others PC 23-Mar-2005
(Bahamas) The claimants resisted requests for their extradition to the US on drugs charges. . .

Cited by:

Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Cited – Raissi, Regina (on the Application of) v Secretary of State for the Home Department CA 14-Feb-2008
The claimant appealed against refusal of his request for judicial review of the defendant’s decision not to award him damages after his wrongful arrest and detention after he was wrongly suspected of involvement in terrorism. He had been discharged . .
Cited – Gomes v Trinidad and Tobago HL 29-Apr-2009
Each appellant challenged orders for their extradition, saying that the delay had been too prolonged, and that detention in Trinidad’s appalling jails would be an infringement of their human rights.
Held: The House had to consider its own . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Extradition

Updated: 07 July 2022; Ref: scu.243387

Simmons and Another v Regina: PC 3 Apr 2006

(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no case to answer even without the confessions, and ‘even had the Mushtaq direction been given and the jury disregarded the statement, they must inevitably still have convicted him. ‘. The statement though in effect culpatory had been intended to be exculpatory.

Judges:

Lord Nicholls of Birkenhead, Lord Woolf, Lord Hope of Craighead, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 19

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Attorney-General of Trinidad and Tobago v Whiteman PC 17-Apr-1991
(Trinidad and Tobago) The time at which an arrested or detained person is to be informed of his/her right to consult with a legal adviser of choice is at a stage before the commencement of ‘in-custody interrogations’.
Lord Keith, in delivering . .
Cited – Mohammed (Allie) v The State PC 9-Dec-1998
(Trinidad and Tobago) A failure to inform a suspect before interview of his right to see a lawyer did not make the interview inadmissible despite the constitutional infringement. It was not as serious as a failure to give fair trial. The judge’s . .
Cited – Regina 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. . .
Cited – Gilbert v Regina PC 27-Mar-2006
(Grenada) . .
Cited – Bowe (Junior) and Another v The Queen PC 8-Mar-2006
(Bahamas) The Board considered: ‘(a) the jurisdiction of the Court of Appeal (b) the constitutional history in the Bahamas as it differs from that of other Caribbean states and (c) the constitutionality of the executive act of carrying out a . .
Cited – Teeluck 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 . .
Cited – Bowe v The State PC 30-Jan-2006
Constitutional validity of the death sentence in the Bahamas. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 06 July 2022; Ref: scu.240023

A v Bottrill: PC 9 Jul 2002

PC (New Zealand) The defendant was a pathologist who carried out cervical smears. His actions were found to be negligent.
Held: The Board considered whether it would be correct to require an additional prerequisite of intention or conscious recklessness before an award of exemplary damages. Such a requirement would always bring evidential difficulties and ‘courts in common law countries have remained true to the underlying rationale of the exemplary damages jurisdiction. Courts in all countries have openly recognised the exceptional and unusual nature of this jurisdiction. They have recognised the need to confine this remedy to truly exceptional and unusual cases. Punishment is primarily a matter for criminal law. They have, further, been well aware of the importance, and the difficulty, of confining the use of this remedy in cases of negligence. ‘ However ‘as a matter of principle and authority, intentional wrongdoing or conscious recklessness is not an essential prerequisite to an order for payment of exemplary damages. Legal principle does not require that the court’s jurisdiction should be limited in this way.’ At the same time: ‘their Lordships cannot over-emphasise what has already been indicated more than once. The cases where it is appropriate to make an award of exemplary damages are exceptional. The cases where it is appropriate to make an award of exemplary damages in the absence of intentional wrongdoing or conscious recklessness will be exceptional and rare indeed.’

Judges:

Lord Nicholls of Birkenhea, Lord Hope of Craighead, Lord Hutton, Lord Millett, Lord Rodger of Earlsferry

Citations:

[2002] UKPC 44, [2003] 1 AC 449, (2003) 70 BMLR 198, [2002] 3 WLR 1406

Links:

PC, Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – McLaren Transport Ltd v Somerville 1996
(New Zealand) Tipping J discussed the award of exemplary damages: ‘Exemplary damages for negligence causing personal injury may be awarded if, but only if, the level of negligence is so high that it amounts to an outrageous and flagrant disregard . .
Cited – Kuddus v Chief Constable of Leicestershire Constabulary HL 7-Jun-2001
There is no rule of law preventing the award of exemplary damages against police officers. The fact that no case of misfeasance in public office had led to such awards before 1964, did not prevent such an award now. Although damages are generally . .
Cited – Rookes 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 . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Professional Negligence

Updated: 06 July 2022; Ref: scu.177982

Taunoa and others v Attorney General and another: 31 Aug 2007

(Supreme Court of New Zealand) Complaints by prisoners at treatment under prisons’ behaviour modification programmes.

Judges:

Elias CJ, Blanchard, Tipping, McGrath and Henry JJ

Citations:

[2007] NZSC 70, [2007] 5 LRC 680

Links:

Nzlii

Jurisdiction:

England and Wales

Cited by:

Cited – Lumba (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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other, Prisons

Updated: 06 July 2022; Ref: scu.431211

Andrews v British Columbia: 1989

(Canada) McIntyre J defined discrimination: ‘discrimination may be described as a distinction, whether intentional or not but based on grounds relating to the personal characteristics of the individual or group, which has the effect of imposing burdens, obligations or disadvantages on such individual or group not imposed upon others, or which withholds or limits access to opportunities, benefits and advantages available to other members of society.’

Judges:

McIntyre J

Citations:

[1989] 1 SCR 143

Jurisdiction:

Canada

Cited by:

Cited – Secretary of State for Trade and Industry v Rutherford and others HL 3-May-2006
The claimant sought to establish that as a male employee, he had suffered sex discrimination in that he lost rights to redundancy pay after the age of retirement where a woman might not.
Held: The appeal was dismised. There were very few . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 06 July 2022; Ref: scu.241439

Wheatley and Another v The Commissioner of Police of the British Virgin Islands: PC 4 May 2006

(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Clyde, Lord Carswell, Lord Mance

Citations:

[2006] UKPC 24

Links:

Bailii

Citing:

Cited – Nutton v Wilson 1889
Lindley LJ spoke of a statue intended to prevent civil servants dling on behalf of their employers with companies in which they had an interest: ‘The object obviously was to prevent the conflict between interest and duty that might otherwise . .
Cited – England v Inglis 1920
An interest in the avoidance of an obligation is as much a material interest as an interest in making a gain. Salter J said: ‘As was pointed out by Lindley LJ in Nutton v Wilson [(1889) 22 QBD 744, 748] the object of sections of this kind is ‘to . .
Cited – Regina v Hinks HL 27-Oct-2000
A woman befriending an older man of limited intelligence accepted daily cash payments from his building society over eight months, claiming them to be gifts. She now appealed against her conviction for theft.
Held: (Lord Hutton dissenting) For . .
Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Rands v Oldroyd 1959
The ejusdem generis rule is, at best, a very secondary guide to the meaning of a statute. The all-important matter is to consider the purpose of the statute. A statute preventing a civil servant contracting for his employers with a company in which . .
Cited – Attorney-General of Hong Kong v Nai-Keung PC 1987
Textile export quotas (a permission to export textiles) which were surplus to the exporter’s requirements, which could be bought and sold under the apprpriate Hong Kong legislation, may be ‘property’ for the purposes of the law of theft. . .
Cited – Regina v Morris (David); Anderton v Burnside HL 2-Jan-1983
The defendants had been accused of theft. One switched labels on a joint of pork in a supermarket, and the other presented the meat with the now cheaper label for purchase.
Held: The appeals were dismissed. There can be no conviction for theft . .
Cited – Regina v Lawrence (Alan) CACD 1970
The offence created by section 1(1) of the 1968 Act involved four elements: ‘(i) a dishonest (ii) appropriation (iii) of property belonging to another (iv) with the intention of permanently depriving the owner of it.’ . .
Cited – Regina v Ghosh CACD 5-Apr-1982
The defendant surgeon was said to have made false claims for payment for operations, and was charged under the 1968 Act. He claimed to have been entitled to the sums claimed, and denied that he had been dishonest. The court considered the meaning of . .
Cited – Lawrence v Metropolitan Police Commissioner HL 30-Jun-1971
The defendant, a taxi driver, had without objection on the part of an Italian student asked for a fare of andpound;6 for a journey for which the correct lawful fare was 10s 6d. The taxi driver was convicted of theft. On appeal the main contention . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 06 July 2022; Ref: scu.241473

Attorney-General of Trinidad and Tobago v Whiteman: PC 17 Apr 1991

(Trinidad and Tobago) The time at which an arrested or detained person is to be informed of his/her right to consult with a legal adviser of choice is at a stage before the commencement of ‘in-custody interrogations’.
Lord Keith, in delivering the opinion of the Judicial Committee said:
‘Their Lordships accordingly consider that persons who have been arrested or detained have a constitutional right to be informed of their right to communicate with a legal adviser both upon a proper construction of section 5(2)( h ) of the Constitution of 1976 and on the basis of a settled practice existing when that Constitution was introduced. Davis JA said towards the end of his judgment of the Court of Appeal:
‘I am not prepared to lay down any general rule as to the precise point in time when a person in custody ought to be informed of this right, [but it should be] as early as possible, and in any event before any ‘in-custody interrogation’ takes place.’
Their Lordships would endorse that. It is possible to envisage circumstances where it would not be practicable to inform the person of his right immediately upon his arrest. They would add that it is incumbent upon police officers to see that the arrested person is informed of his right in such a way that he understands it. He may be illiterate, deaf, or unfamiliar with the language. It is plain that the mere exhibition of notices in the police station is insufficient in itself to convey the necessary information.’

Judges:

Keith of Kinkel, Templeman, Griffiths, Ackner, Jauncey of Tullichettle LL

Citations:

[1991] 2 AC 240, [1991] UKPC 16, (1991) 39 WIR 397

Links:

Bailii

Cited by:

Cited – Simmons and Another v Regina PC 3-Apr-2006
(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice, Constitutional

Updated: 06 July 2022; Ref: scu.241302

Hung v Gardiner: 6 May 2003

Canlii (Court of Appeal for British Columbia) The court was asked whether a person who provides information to a professional disciplinary body about the conduct of one of its members is liable in an action brought by that member. The clear answer is that the communication of the information is subject to absolute privilege, which provides a defence to all claims.

Citations:

[2003] BCCA 257, 13 BCLR (4th) 298, 1 Admin LR (4th) 152, 227 DLR (4th) 282

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Cited – White v Southampton University Hospitals NHS Trust and Another QBD 1-Apr-2011
The claimant doctor sued in defamation for letters written by the defendants to the Fitness to Practice Directorate. She now sought to appeal against a finding that she could not rely upon one letter which had come to her attention through . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth

Updated: 05 July 2022; Ref: scu.431719

Chung Chi Cheung v The King: PC 2 Dec 1938

Hong Kong.
Held: The applicant could not invoke any right under the rule of international law which placed upon a state a duty to receive its own national, because that rule was inconsistent with the domestic law. In modern times the idea of even a Government ship being a ‘floating island,’ belonging to and retaining the law of the country of its flag, has been abandoned.
Lord Atkin said: ‘ [S]o far, at any rate, as the Courts of this country are concerned, international law has no validity save in so far as its principles are accepted and adopted by our own domestic law. There is no external power that imposes its rules upon our own code of substantive law or procedure. The Courts acknowledge the existence of a body of rules which nations accept amongst themselves. On any judicial issue they seek to ascertain what the relevant rule is, and, having found it, they will treat it as incorporated into the domestic law, so far as it is not inconsistent with rules enacted by statutes or finally declared by their tribunals. . . ‘

Judges:

Lord Atkin

Citations:

[1939] AC 160, [1938] UKPC 75

Links:

Bailii

Statutes:

Immigration Act 1971

Cited by:

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

Immigration, Commonwealth, International

Updated: 05 July 2022; Ref: scu.239960

Shabadine Peart v The Queen: PC 14 Feb 2006

Jamaica – This appeal concerns the status of the Judges’ Rules, the requirements of rule III(b) and the way in which trial judges may exercise their discretion to admit evidence if there has been a breach of the Rules.

Judges:

Lord Rodger of Earlsferry, Lord Steyn, Lord Carswell, Lord Mance, Sir Swinton Thomas

Citations:

[2006] UKPC 5, [2006] 1 WLR 970

Links:

Bailii

Commonwealth, Criminal Practice

Updated: 05 July 2022; Ref: scu.238745

Ebanks (Jurt) v The Queen: PC 16 Feb 2006

(Jamaica) The defendant appealed against his conviction for murder saying that identification evidence had been wrongly admitted and also if that appeal failed against the sentence of death. Though the witness knew the defendant, an identification parade was held.
Held: The parade had been held, and though the judge had incorrectly told the jury it had not been necessary, he had repeatedly told the jury of the need for caution in identification cases. It was said to be a capital murder because the victim was to be a witness in criminal proceedings. Though the direction had not been meticulous it was not defective. At the time this had been a capital offence, but the law had since been revised. In view of that change the defendant was to be remitted to the court of appeal for resentencing.

Citations:

Times 31-Mar-2006, [2006] UKPC 6

Links:

Bailii

Citing:

Cited – Goldson and McGlashan v The Queen PC 23-Mar-2000
PC (Jamaica) The holding of an identification parade was desirable where the witness’s claim to have known and recognised the suspect is disputed. Lord Hoffmann referring to the defendant’s denial that he was the . .
Cited – Aurelio 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 . .
Cited – Regina v Harris CACD 2003
The trial judge had said to the jury that in cases of purported recognition by the witness of the accused as somebody known to him, an identification would, generally speaking, serve no useful purpose.
Held: He was in error and that the . .
Cited – Watson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 05 July 2022; Ref: scu.238741

The President of the State of Equatorial Guinea and Another v Bank of Scotland International: PC 27 Feb 2006

(Guernsey) Lord Bingham said: ‘Norwich Pharmacal relief exists to assist those who have been wronged but do not know by whom. If they have straight forward and available means of finding out, then it will not be reasonable to achieve that end by overriding a duty of confidentiality such as that owed by banker to customer. If, on the other hand, they have no straightforward or available means of finding out, Norwich Pharmacal relief is in principle available if the other conditions of obtaining relief are met. Whether it is said that it must just be convenient in the interests of justice to grant relief or that relief should only be granted if it is necessary in the interests of justice to grant it, makes little or no difference of substance’.

Judges:

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

[2006] UKPC 7

Links:

Bailii

Citing:

Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .

Cited by:

Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – The Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
Cited – The Rugby Football Union v Consolidated Information Services Ltd SC 21-Nov-2012
The Union challenged the right of the respondent to resell tickets to international rugby matches. The tickets were subject to a condition rendering it void on any resale at above face value. They said that the respondent had advertised tickets in . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 05 July 2022; Ref: scu.238743

Horsford v Bird and others: PC 17 Jan 2006

(Antigua and Barbuda) The Board was asked as to the damages to be awarded after the defendant had built a wall which encroached on the claimant’s land and appropriated some 455 square feet. Aggravated damages had been awarded. The court was asked whether the damages should reflect the increase in value of the defendant’s property rather than the strict value of the land itself.
Held: This was not an occasion when the building of the wall had been accompanied by high handed or other reprehensible behaviour, and aggravated damages were not justified.
Tthe proper starting point was the value of the land encroached upon, which was assessed at $30 per square foot, totalling $13,650. However, the judge was right to take into account the extent to which the piece of land encroached upon had enhanced the amenities of the respondent’s own house. By building his wall on the appellant’s land and thereby (permanently) incorporating a piece of the appellant’s land into his garden, the respondent had given the expropriated land a value to himself considerably in excess of its value simply as 455 square feet of an undeveloped plot. The proper question to ask was how much the appellant could reasonably have sought from the respondent as the price of the land incorporated wrongly into his garden. The value to the respondent of the land as part of his garden would have been at least double its value as an undeveloped plot.

Judges:

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Mance

Citations:

[2006] UKPC 3, [2006] 1 EGLR 75, (2006) 22 Const LJ 187, [2006] 15 EG 136

Links:

Bailii

Cited by:

Cited – Star 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 . .
Cited – Ramzan v Brookwide Ltd ChD 8-Oct-2010
The claimant owned a flying freehold room butting into the defendant’s property. Whilst the claimant’s property was unoccupied, the defendant broke through into the room, blocked off the door to the claimant’s property, and included the room in the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Damages

Updated: 05 July 2022; Ref: scu.238310

Kalamazoo (Aust) Pty v Compact Business Systems Ltd: 1985

(Supreme Court of Queensland) The case concerned the copying of a collection of accounting forms which when used together made up an accounting system. Some of the forms were intended to be used in a peg-board system in which writing on the top form was reproduced on the lower forms in a stack, the forms being held in the correct register by a system of punched holes, pegs and a clamp. Various collections of forms were sold by the plaintiffs, each collection being adapted for a particular purpose.
Held: Layout, presentation and appearance may be the subject of copyright protection. A literary work is one that gives ‘information, instruction or pleasure in the form of literary enjoyment’ and that is not a question of literary merit. Each collection or group of forms, designed to be used with each other, was entitled to protection as a compilation of the constituent forms even though the constituent forms were not wholly literary.

Judges:

Thomas J

Citations:

(1985) 5 IPR 213, (1985) 84 FLR 101

Statutes:

Copyright Act 1911

Jurisdiction:

Australia

Citing:

Cited – Baker v Selden 1879
(US Supreme Court) Blank account books were not the subject of copyright. . .

Cited by:

Cited – Navitaire Inc v Easyjet Airline Co and Another ChD 30-Jul-2004
The claimant alleged infringement of its copyright in a software system which dealt with airline reservations. It was not said that any code had been copied, but merely that an express requirement of the defendant ordering the system was that it . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 05 July 2022; Ref: scu.220332

Farrington v Rowe McBride and Partners: 1985

(New Zealand) When a solicitor acts for two clients and there is a conflict in his responsibilities, the solicitor must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting. There may be circumstances, notwithstanding such disclosure, where it is impossible for the solicitor to act fairly and adequately for both parties: ‘A solicitor’s loyalty to his client must be undivided. He cannot properly discharge his duties to one whose interests are in opposition to those of another client. If there is a conflict in his responsibilities to one or both he must ensure that he fully discloses the material facts to both clients and obtains their informed consent to his so acting . . And there will be some circumstances in which it is impossible, notwithstanding such disclosure, for any solicitor to act fairly and adequately for both.’

Judges:

Richardson J

Citations:

[1985] 1 NZLR 83

Jurisdiction:

England and Wales

Cited by:

Cited – Clark Boyce v Mouat PC 4-Oct-1993
(New Zealand) No duty of wisdom is owed to client in full command of his faculties by a lawyer. If the client requires only action from his lawyer, that is what is required. Informed consent can be sufficient to allow a solicitor to act for two . .
Cited – Hilton v Barker Booth and Eastwood HL 3-Feb-2005
The claimant had instructed the defendant solicitors to act for him, where he was to contract with another client of the same solicitor in a land development. The solicitor failed to disclose that the other client had convictions for dishonesty, and . .
Cited – Burkle Holdings Ltd v Laing TCC 23-Mar-2005
The parties had each instructed the same solicitor, but now disputed the entitlement of the other to see documents held by the solicitor. . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 July 2022; Ref: scu.222539

Muschinski v Dodds: 1985

(High Court of Australia) The idea of conscience is too vague a notion to found the principles of equity, it would open the door to ‘idiosyncratic notions of fairness and justice’ and ‘That property was acquired, in pursuance of the consensual arrangement between the parties, to be held and developed in accordance with that arrangement. The contributions which each party is entitled to have repaid to her or him were made for, or in connexion with, its purchase or development. The collapse of the commercial venture and the failure of the personal relationship jointly combined to lead to a situation in which each party is entitled to insist upon realization of the asset, repayment of her or his contribution and distribution of any surplus.’

Deane J drew attention to the nature and function of constructive trusts in the common law: ‘The fact that the constructive trust remains predominantly remedial does not, however, mean that it represents a medium for the indulgence of idiosyncratic notions of fairness and justice. As an equitable remedy, it is available only when warranted by established equitable principles or by the legitimate processes of legal reasoning, by analogy, induction and deduction, starting from the conceptual foundations of such principles . . Under the law of this country – as, I venture to think under the present law of England . . proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about which party ‘ought to win’ . . and the ‘formless void’ of individual moral opinion.’ and ‘Under the law of [Australia]-as, I venture to think, under the present law of England-proprietary rights fall to be governed by principles of law and not by some mix of judicial discretion, subjective views about which party ‘ought to win’ and ‘the formless void of individual moral opinion’.’

Judges:

Deane J, Mason J

Citations:

(1985) 160 CLR 583

Jurisdiction:

Australia

Cited by:

Cited – R Griggs Group Ltd and others v Evans and others (No 2) ChD 12-May-2004
A logo had been created for the claimants, by an independent sub-contractor. They sought assignment of their legal title, but, knowing of the claimant’s interest the copyright was assigned to a third party out of the jurisdiction. The claimant . .
Approved – Stack 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 . .
Cited – Yeoman’s Row Management Ltd and Another v Cobbe HL 30-Jul-2008
The parties agreed in principle for the sale of land with potential development value. Considerable sums were spent, and permission achieved, but the owner then sought to renegotiate the deal.
Held: The appeal succeeded in part. The finding . .
Lists of cited by and citing cases may be incomplete.

Equity

Updated: 05 July 2022; Ref: scu.199475

Regina v Roffel: 19 Dec 1984

(Australia – Supreme Court of Victoria) A couple ran a clothing manufacturing business. They then formed a limited company of which they became the sole directors and shareholders and sold the business to the company. The price remained unpaid. The company’s premises were destroyed by fire and the proceeds of insurance were paid into the company’s bank account. The company’s debts exceeded the proceeds of the insurance. The husband drew cheques on the company’s account and was prosecuted for theft from the company and convicted.
Held: (Majority) The court quashed the conviction. Under the Crimes Act 1958 the necessary element of appropriation required proof of adverse interference with or usurpation of some right or rights of the owner (Regina v. Morris). As the company was a separate legal entity, and in the particular circumstances (through its directing mind and will) had consented to the husband’s drawing the cheques, it could not be said that he had appropriated the company’s property.

Judges:

Young CJ, Crockett, Brooking JJ

Citations:

[1985] VR 511, [1985] VicRp 51

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Disapproved – Regina v Philippou CA 1989
The defendants were sole directors and shareholders of their company. They appealed a conviction of theft from the company.
Held: The convictions stood. ‘Appropriates’ is to be given its ordinary English meaning, namely, ‘takes as one’s own or . .
Disapproved – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 05 July 2022; Ref: scu.214209

Bell v Director of Public Prosecutions of Jamaica: PC 1985

The appellant had been sentenced to life for firearms offences. After a successfully appeal, a retrial was ordered. More than two years had passed, after a previous attempt failed for absent witnesses.
Held: Referred to the US decision in Barker and Wingo (1972) 407 US 514, invoking the sixth amendment – ‘In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury….’) which identified four factors in assessing whether a defendant had been deprived of his constitutional rights: (1) the length of delay; (2) the reasons given by the prosecution to justify the delay; (3) the responsibility of the accused for asserting his rights; and (4) prejudice to the accused. ‘Their Lordships acknowledge the relevance and importance of the four factors lucidly expanded and comprehensively discussed in Barker v Wingo. Their Lordships also acknowledge the desirability of applying the same or similar criteria to any constitution, written or unwritten, which protects an accused from oppression by delay in criminal proceedings. The weight to be attached to each factor must, however, vary from jurisdiction to jurisdiction and from case to case.’ and ‘It was argued on behalf of the respondents, the Director of Public Prosecutions and the Attorney-General, that the applicant was able to obtain redress by waiting until his retrial, ordered for 11 May 1982, and then submitting to the Gun Court at the commencement of the retrial that the proceeding should be dismissed on the grounds that in the events which had happened a retrial would be an abuse of the process of the court. Their Lordships cannot accept this submission. If the constitutional rights of the applicant had been infringed by failing to try him within a reasonable time, he should not be obliged to prepare for a retrial which must necessarily be convened to take place after an unreasonable time.’
‘Their Lordships accept the submission of the respondents that, in giving effect to the rights granted by sections 13 and 20 of the Constitution of Jamaica, the courts of Jamaica must balance the fundamental right of the individual to a fair trial within a reasonable time against the public interest in the attainment of justice in the context of the prevailing system of legal administration and the prevailing economic, social and cultural conditions to be found in Jamaica. The administration of justice in Jamaica is faced with a problem, not unknown in other countries, of disparity between the demand for legal services and the supply of legal services. Delays are inevitable. The solution is not necessarily to be found in an increase in the supply of legal services by the appointment of additional judges, the creation of new courts and the qualification of additional lawyers. Expansion of legal services necessarily depends on the financial resources available for that purpose. Moreover an injudicious attempt to expand an existing system of courts, judges and practitioners, could lead to deterioration in the quality of the justice administered and to the conviction of the innocent and the acquittal of the guilty. The task of considering these problems falls on the legislature of Jamaica, mindful of the provisions of the Constitution and mindful of the advice tendered from time to time by the judiciary, the prosecution service and the legal profession of Jamaica. The task of deciding whether and what periods of delay explicable by the burdens imposed on the courts by the weight of criminal causes suffice to contravene the rights of a particular accused to a fair hearing within a reasonable time falls upon the courts of Jamaica and in particular on the members of the Court of Appeal who have extensive knowledge and experience of conditions in Jamaica. In the present case the Full Court stated that a delay of two years in the Gun Court is a current average period of delay in cases in which there are no problems for witnesses. The Court of Appeal did not demur. Their Lordships accept the accuracy of the statement and the conclusion, implicit in the statement, that in present circumstances in Jamaica, such delay does not by itself infringe the rights of an accused to a fair hearing within a reasonable time. No doubt the courts and the prosecution authorities recognise the need to take all reasonable steps to reduce the period of delay wherever possible.’

Judges:

Templeman L

Citations:

[1985] 2 All ER 585, [1985] AC 937

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Chichester Justices ex parte Crowther Admn 14-Oct-1998
The defendant sought judicial review of an order made in 1998 issuing a warrant for his committal for failure to pay a confiscation order made in 1991. He had served 6 years imprisonment, and in default of payment a further 18 months. He was . .
Cited – Director of Public Prosecutions and others v Tokai and others PC 12-Jun-1996
(Trinidad and Tobago) The appellant had been charged in 1981 with offences alleged to have been committed shortly before. The proceedings continued until his appeal for one was dismissed in 1988. The wounding charges were proceeded with only in . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Updated: 05 July 2022; Ref: scu.187181

Societe United Docks v Government of Mauritius; Marine Workers Union v Mauritius Marine Authority: PC 1985

(Mauritius) Dockworkers and the Ports Authority, submitted their wage dispute to binding arbitration. The award granted a substantial wage increase which the workers then sought to have enforced. The government, brought in legislation allowing the Attorney General to object to the award’s enforcement.
Held: Section 3 of the constitution of Mauritius is an enacting section, not a mere preamble or introduction. The more detailed later sections (section 8) did not curtail the ambit of section 3, and the Board held that: ‘A Constitution concerned to protect the fundamental rights and freedoms of the individual should not be narrowly construed in a manner which produces anomalies and inexplicable inconsistencies.’
Lord Templeman: ‘Prior to the Amendment Act the appellants were entitled to an order of the court making the award executory and enforceable and each relevant employee was entitled to sue the MMA for, and to recover, the difference between the salary and allowances in fact paid to him and the salary and allowances to which he was entitled pursuant to the award during the duration of the award. The Amendment Act has thus deprived and was intended to deprive each worker of a chose in action, namely the right to sue for and recover damages for breach by the MMA of its contract of employment.
Section 3 of the Constitution of Mauritius recognises and declares inter alia the right of the individual to protection from deprivation of property without compensation. The Board have already determined in connection with the contemporaneous case of Societe United Docks v Government of Mauritius that the protection afforded by section 3 is not confined to property which has been compulsorily taken possession of or compulsorily acquired within the meaning of section 8. The appellants rightly complained on behalf of the workers employed by the MMA that the workers had been deprived of property, namely their right to sue for and recover damages for breach by the MMA of its contract of employment, contrary to section 3 of the Constitution.’ and ‘It suffices that the Amendment Act was a coercive Act of the government which alone deprived and was intended to deprive the appellants of property without compensation and thus infringed the Constitution.’

Judges:

Lord Templeman

Citations:

[1985] AC 585

Jurisdiction:

Commonwealth

Cited by:

Cited – Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others PC 3-Feb-2004
PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this . .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
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

Updated: 05 July 2022; Ref: scu.192651

Rogers v Whitaker: 19 Nov 1992

High Court of Australia – Negligence – Breach of duty – Medical practitioner – Duty to warn of possibility of adverse effect of proposed treatment – Extent of duty.
The patient complained that the doctor when proposing a form of treatment to his left eye had not explained the associated risks. Those risks had become realised. The plaintiff was already blind in the other eye, giving the risk a greater significance than it would otherwise have had. In addition, she had asked anxiously about risks.
Held: Why should the patient’s asking a question make any difference in negligence, if medical opinion determines whether the duty of care requires that the risk should be disclosed? The patient’s desire for the information, even if made known to the doctor, does not alter medical opinion. ‘Whether a medical practitioner carries out a particular form of treatment in accordance with the appropriate standard of care is a question in the resolution of which responsible professional opinion will have an influential, often a decisive, role to play; whether the patient has been given all the relevant information to choose between undergoing and not undergoing the treatment is a question of a different order. Generally speaking, it is not a question the answer to which depends upon medical standards or practices. Except in those cases where there is a particular danger that the provision of all relevant information will harm an unusually nervous, disturbed or volatile patient, no special medical skill is involved in disclosing the information, including the risks attending the proposed treatment.’
The court restated the test of the materiality of a risk so as to encompass the situation in which, as the doctor knows or ought to know, the actual patient would be likely to attach greater significance to a risk than the hypothetical reasonable patient might do: ‘a risk is material if, in the circumstances of the particular case, a reasonable person in the patient’s position, if warned of the risk, would be likely to attach significance to it or if the medical practitioner is or should reasonably be aware that the particular patient, if warned of the risk, would be likely to attach significance to it.’

Judges:

Mason CJ, Brennan, Dawson, Toohey, Gaudron, McHugh JJ

Citations:

[1992] HCA 58, (1992) 175 CLR 479

Jurisdiction:

England and Wales

Cited by:

Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Professional Negligence

Updated: 04 July 2022; Ref: scu.544327

Mason v Desnoes and Geddes Ltd: PC 2 Apr 1990

(Jamaica) A section enabled the Court to set aside a judgment where a party had not appeared at the trial.
Held: The reference to ‘the Court or a Judge’ made it clear that the jurisdiction may be exercised by a judge in chambers and: ‘ . . the application to set aside a default judgment is not the invocation of an appellate jurisdiction but of a specific rule enabling the court to set aside its own orders in certain circumstances where the action has never been heard on the merits.’

Citations:

[1990] 2 AC 729, [1990] UKPC 15

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 04 July 2022; Ref: scu.237248

Kumar 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 conditions and therefore no credit was given. In one case the prisoner had been released only after spending more time in prison awaiting his appeal than the original sentences, ignoring remission.
Held: The appeals were allowed. The appeal court in Tiwari had erred. Each case should be approached on its own merits: ‘to ascertain whether the application is devoid of merit, an attempt to manipulate the criminal appeal system for the applicant’s benefit or is otherwise a deliberate waste of the court’s time and resources. ‘ In Kumar Ali’s case, no reasons had been given and the case was simpler still.
As to time spent on remand, all such time should be usually deducted and an unsuccessful appellant should not be penalised further by having to serve additional time, unless this is to ‘impose a penalty for bringing or persisting with a frivolous application which fairly reflects the need to discourage wasting the court’s time without inflicting an unfairly long extension of imprisonment upon the applicant’.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Carswell

Citations:

[2005] UKPC 41, [2006] 1 WLR 269

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Pratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .
Cited – Leslie Tiwari v The State (Appeal No 76 of 2001) PC 29-May-2002
(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses.
Held: Where a defendant . .
Cited – Rex v Peters 1908
If leave is given to appeal against sentence, the term will generally be backdated to the original sentencing exercise. . .
Cited – Regina v K (Herbert) CACD 2005
The court considered the making of loss of time orders. . .
Cited – Practice Direction (Criminal Proceedings: Consolidation) CACD 8-Jul-2002
. .
Cited – Practice Direction (Crime: Sentence: Loss of Time) 1980
Appellants were reminded of the courts powers to make a loss of time order in the case of inappropriate appeals against sentence. . .
Cited – Rex v Westlake 1920
Where leave to appeal against sentence is obtained by misstatement or misdescription, the sentence imposed will not be backdated as is the normal practice. . .
Cited – Rex v Fenley 1920
Where a defedant obtains leave to appeal against his sentence by a deception, then on his sentence by the Appeal Court, that sentence will not be backdated. . .

Cited by:

Cited – Persad v Trinidad and Tobago PC 23-Jul-2007
(Trinidad and Tobago) The Board considered the admissibility of out of court admissions as against co-defendants. Three defendants faced allegations of a series of violent crimes. The appellant said the only evidence against him for an offence of . .
Cited – 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 . .
Cited – Brown v The Queen PC 9-Feb-2016
Court of Appeal of Jamaica – Appeal against conviction for murder – challenge as to capacity to plead.
Held: The appeal against conviction failed, but the appeal against sentence succeeded. . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Commonwealth

Updated: 04 July 2022; Ref: scu.236685

Kwasi Bekoe v Horace Broomes: PC 31 Oct 2005

PC (Trinidad and Tobago) The appellant defendant was an attorney-at-law, and the respondent a senior magistrate who was said to have accused the claimant of having given a bribe. The appellant challenged the finding of slander, saying that he had not said what was alleged.
Held: The appeal failed. It was essentially an appeal on the facts, and no exception had been established to allow the Board to consider such a challenge outside its normal practice.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Carswell

Citations:

[2005] UKPC 39

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Robins v National Trust Company Ltd 1927
The rule restricting a third tier court from upsetting a finding where there have been concurrent judgments of two courts on a pure question of fact were not based on any statutory rule. . .
Cited – Jagan v Ganpat and Others 1999
(Court of Appeal in Guyana) An appellate court ought to act very cautiously before deciding to overturn findings of fact by a trial judge, even where it inclines to the view that the trial judge’s treatment of the evidence in a written judgment had . .
Cited – Srimati 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 . .
Cited – Chua Chee Chor v Chua Kim Yong PC 1962
The Board’s practice of restricting the hearing a dispute of fact to situations where two courts had made consistent findings of fact is not immutable and the Board may in special circumstances vary their application to some degree. . .
Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:

Cited – Smith and Another v Harris PC 30-Oct-2006
(Cayman Islands) The respondent appealed a finding of negligence. She drove a car along a road colliding with three pedestrians, the claimants. The pedestrians said they had been walking in single file in a lay-by off the main carriageway. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation

Updated: 04 July 2022; Ref: scu.236684

PF Sugrue Ltd v The Attorney General: PC 14 Nov 2005

PC (New Zealand) The claimant’s helicopter had been seized by the police having been identified as having been used in the course of unlawful hunting of deer. The grounds for the seizure were said to be inadequate. It was disputed whether the purpose of the seizure was for forensic investigation.
Held: The Appeal court had been able to reach the decision it had done on the evidence, and had not strayed outside the limits of its powers in making the order it had. There were no grounds for reversing the finding.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Carswell, Sir Anthony Evans

Citations:

[2005] UKPC 44

Links:

Bailii, PC

Citing:

Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Police

Updated: 04 July 2022; Ref: scu.235360

Merson 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 her damages. The Bahamian police had subjected her to ‘Gestapo like tactics.’
Held: The several heads of damages did not co-incide with each other. Though the judge had not made quite clear how the damages claim had been calculated it remained clear that she had taken the correct approach, the inference of duplication was unsound, and the award was re-instated. The Board upheld the award of vindicatory damages, in order ‘to vindicate the right of the complainant . . to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression’
Lord Scott said: ‘The purpose of a vindicatory award is not a punitive purpose. It is not to teach the executive not to misbehave. The purpose is to vindicate the right of the complainant . . to carry on his or her life in the Bahamas free from unjustified executive interference, mistreatment or oppression. The sum appropriate to be awarded to achieve this purpose will depend upon the nature of the particular infringement and the circumstances relating to that infringement. It will be a sum at the discretion of the trial judge. In some cases a suitable declaration may suffice to vindicate the right; in other cases an award of damages, including substantial damages, may seem to be necessary.’

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond

Citations:

[2005] UKPC 38

Links:

Bailii, PC

Citing:

Cited – Rookes 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 . .
Cited – Attorney 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 . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .

Cited by:

Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Subiah 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 . .
Cited – Takitota v the Attorney General and others PC 18-Mar-2009
(Bahamas) The applicant a tourist had been wrongfully detained in appalling conditions in the Bahamas for over eight years after he lost his documents. He now appealed against an award of $500,000 dollars compensation.
Held: ‘it would not be . .
Cited – Lumba (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 . .
Cited – 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages

Updated: 04 July 2022; Ref: scu.231106

Panday v Gordon: PC 5 Oct 2005

(Trinidad and Tobago) A senior politician had accused an opponent of pseudo-racism. The defendant asserted that he had a defence under the constitution, allowing freedom of political speech.
Held: The appeal failed. The statements were defamatory statements of fact. Justification was not pleaded and a defence of privilege was not pursued. The damages were substantial but awarded by a court which knew the significance of the words, and the local context.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond

Citations:

[2005] UKPC 36

Links:

Bailii, PC

Citing:

Cited – Tse Wai Chun Paul v Albert Cheng 13-Nov-2000
(Court of Final Appeal of Hong Kong) For the purposes of the defence to defamation of fair comment: ‘The comment must explicitly or implicitly indicate, at least in general terms, what are the facts on which the comment is being made. The reader or . .
Cited – Branson v Bower (No 1) CA 24-May-2001
The test of whether comment was fair comment is simply that of whether the opinion was honestly expressed, and on the basis of facts accurately stated. There is no special rule for imputations of corruption or dishonest motives. Nor is there any . .
Cited – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Cited – Horrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
Cited – Lange v Atkinson 21-Jun-2000
(Court of Appeal of New Zealand) The court rejected a test of reasonableness before accepting a defence to defamation associated with the political nature of the speech. . .
Cited – Reynolds 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 . .
Cited – Lange v Australian Broadcasting Corporation 8-Jul-1997
(High Court of Australia) The court propounded a test of reasonableness of conduct in respect of the publication of political information. Generally publication will not be reasonable unless the maker of the statement had reasonable grounds for . .
Cited – Morris Manning and the Church of Scientology of Toronto v S Casey Hill and The Attorney General for Ontario and others 20-Jul-1995
(Supreme Court of Canada) The publication of defamatory statements ‘constitutes an invasion of the individual’s personal privacy and is an affront to that person’s dignity’. . .
Cited – Botiuk v Toronto Free Press Publications Ltd 21-Sep-1995
(Supreme Court of Canada) Defamation was alleged against lawyers writing on behalf of their clients.
Held: The defendant lawyers were ‘duty-bound’ to undertake a reasonable investigation into the correctness of the document they were signing . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation, Constitutional

Updated: 04 July 2022; Ref: scu.230968

Bree v Scott: 1904

(Supreme Court of Victoria) The defendant squatted from 1878 upon land allotted to her mother as Crown licensee. A Crown licensee was entitled to acquire the fee upon performance of obligations in the licence. In 1885 a Crown grant was duly issued to the mother in consideration of a payment then made. A mortgagee sought to eject the defendant. The question which arose was whether the 15-year limitation period had run its course by 1899. If the period ran from 1878 the claim was barred. If the period ran only from 1885, being the date of the grant of the legal estate through which the mortgagee claimed title, the claim was not barred.
Held: Time ran from the earlier date. The licence under the Land Act 1869 was the seed of which the subsequent grant was the fruition of title. ‘Stated generally, the policy of the [limitation legislation] was to require a person having a right to land to exercise it as against a person illegally occupying at the peril of losing the land if the illegal occupation continued undisturbed for fifteen years. Here we have an occupation such as the Statute contemplated continuing undisturbed, and when it commenced, and up to the time of the issue of the grant, a person having legal title from the Crown who could have recovered the land against the occupant … This inactive licensee and lessee afterwards acquired a legal estate in the fee, not by virtue of any new right unconnected with her prior interest, but by the maturing of a right which had its inception in the licence. No doubt, up to the issue of the grant, there was no certainty that the fee would be acquired: the right to the land was inchoate, and might have been lost, but it was in fact perfected, and we have to say whether the nature of this new title is such as to wipe out all the consequences of past inaction, and to give a new term of fifteen years within which inaction must continue before the illegal occupant could acquire title … I should say that since the Judicature Act, if not before, the mere difference between legal and equitable estates would be insufficient. Take the case of omission to proceed against an illegal occupant by a purchaser under a contract of sale … there is no reason for saying that a conveyance by the vendor … would give this new start in the owner’s favour … The changes in the legal interest of the person who might have brought the action against the defendant in the present case made no changes in her rights as against the defendant; the right to turn her out was as good in the licensee as in the grantee.’

Judges:

Beckett J, Madden C.J

Citations:

(1904) 29 VLR 692

Jurisdiction:

England and Wales

Cited by:

Cited – Chung Ping Kwan and others v Lam Island Development Company Limited PC 8-Jul-1996
(Hong Kong) Various provisions had been made for the termination of long leases in Hong Kong. Land had come to be occupied by adverse possession. At first instance the judge had given judgment against the squatters, but then retracted after a later . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Landlord and Tenant, Limitation

Updated: 03 July 2022; Ref: scu.194082

Timber Engineering Co Pty Ltd v Anderson: 1980

(New South Wales) The manager and a sales representative of TECO set up separate competing business. Anderson with his wife, began a new company Mallory Trading Pty Ltd which acted as a a fraud on TECO. On learning of each others acts, they joined forces and diverted business and profits from TECO. In July 1977 Toy resigned from TECO to work full time for Mallory Trading; and in November 1977 Anderson was dismissed, whereupon he, too, began to work full time for Mallory Trading. In February 1978 they incorporated another company, Mallory Timber Products Pty Ltd (‘Mallory Timber’) to which they transferred the business of Mallory Trading. TECO sought an account of profits and declaration of trust of the businesses of Mallory Trading and Mallory Timber and of the shares in both companies held by Anderson, Toy and their respective wives.
Held: Kearney J approved this statement by Dr PD Finn in Fiduciary Relations: ‘The fiduciary’s liability for gains is a liability as trustee and for trust property. It is, as will be seen, one which can give rise to personal actions against a fiduciary. It can give rise to actions in rem to recover extant trust property.’
The trust property was extant: ‘It is clear that the business had its genesis in the resources and facilities of TECO which were available to Anderson and Toy. It is also clear that they did take advantage of such resources and facilities so as to cause life to be breathed into the mere shell of Mallory Trading, bearing in mind that the business of Mallory Trading was built upon cash flow and sales. The whole substance of Mallory Trading as a viable business enterprise stemmed from the resources of TECO which were utilized in Mallory Trading. The outstanding features of the nurturing of Mallory Trading are that its executives were being paid by TECO, its customers were TECO customers, and its products were significantly derived from TECO products . . the whole of the TECO business (including, not only physical facilities such as telephones, motor cars and expense accounts) were used; but also its intangible elements such as marketing methods, knowledge of customers and goodwill were also resorted to in building up Mallory Trading. Another significant feature is that the inevitable result of the defendants using TECO as the vehicle to establish Mallory Trading as a going concern was that TECO was gravely harmed. It not only lost the orders that were misappropriated, but this in turn led to the loss of customers and substantial damage to its goodwill . . There can be no doubt that the creation and development of Mallory Trading dealt a crippling blow to the business of TECO.
Every opportunity which Mallory Trading has received is directly traceable to resources and benefits provided by TECO, even of time and efforts expended by Anderson and Toy for which TECO was paying. Every advance made by Mallory Trading was also due to the advantages of the tangible and intangible resources and facilities provided from TECO. In truth, the business of Mallory Trading was carved out of the business of TECO, and thus ought to be treated as being, as at July 1977, held on trust for TECO.’
July 1977 was the date when Toy resigned from TECO. Kearney J then dealt with a number of arguments relating to subsequent events. The real issue was whether the trust property represented by the business of Mallory Trading remained extant. The defendants’ first submission was that the business of Mallory Timber was a fresh unrelated business free from any trust. The judge described that as ‘insupportable’: ‘I regard the business carried on by Mallory Timber products as representing the trust property of which Mallory Trading was originally the trustee.’ The defendants submitted that if there was any liability after July 1977, the liability should be limited to an account of profits, and should not extend to a declaration that the business was itself held on trust; whatever the position might have been in July 1977, the continued carrying on of the business had been wholly due to the defendants’ own efforts; and that any benefit attributable to the trust as it existed in July 1977 had been displaced. Kearney J dealt with this submission as follows: ‘The fact that the trustee carried on a business and improved it by its own exertions did not, in my view have the effect of extinguishing the trust property as so to terminate the trust. The business, as a trading enterprise, continued to subsist as an identifiable item of property. The fact that the business may have been enhanced through the efforts of the trustee cannot affect the continued existence of the trust.’ The defendants ‘ submitted that any account should be limited to former customers of TECO, and that the extent of sales to those customers could be readily ascertained from the accounts. Kearney J rejected that submission too. He said that this submission took: ‘too limited a view of the extent of the benefit represented by the existence of the business of Mallory Trading as a going concern. While its attributes included the connection with former TECO customers, it also had the inherent capacity as an established business to expand the range of its customers and products.’
He concluded: ‘It seems to me that the present case falls within the second example stated by Upjohn J [in Re Jarvis], namely that the Mallory companies are accountable as constructive trustees of the business. The contribution of skill and industry by all the defendants to the continued carrying on of the business can be adequately provided for by the making of proper allowances, as indicated by Upjohn J I consider that, in determining the form of relief to be granted, not only is Upjohn J’s first example inappropriate to the facts of the case, but also that justice can be done, in the circumstances of this case, by making the declaration of trust as to the business on the footing of all just allowances.
. . The trust property remains identifiable in the hands of the trustee, and TECO is entitled to have the benefit of it, subject to the efforts of the defendants being duly remunerated.
Additionally, although there is no evidence at present, the defendants may be able to establish upon the taking of accounts of profits, that assets comprised in the business have been contributed by them from sources other than those generated by the business itself. If so, it may further be possible to show that consequently a proportionate interest in the business exists in favour of the defendants, or that they are entitled to a specific item of property, or to a charge upon the trust property as a whole.’

Judges:

Kearney J

Citations:

[1980] 2 NSWLR 488

Jurisdiction:

England and Wales

Cited by:

Cited – Ultraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 01 July 2022; Ref: scu.230345

Strachan v The Gleaner Company Limited and Stokes: PC 25 Jul 2005

PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence of justification. He claimed that the order amounted to an order for a retrial.
Held: A default judgment is one which has not been decided on the merits. The Courts have jealously guarded their power to set aside judgments where there has been no determination on the merits, even to the extent of refusing to lay down any rigid rules to govern the exercise of their discretion. There having been no determination on the merits in relation to liability, the court had had jurisdiction to set aside the judgment for damages to be assessed. ‘Walker J held that he had jurisdiction to make the order he did. If wrong, his decision could be reversed by the Court of Appeal which would be bound without going into the merits to set aside his substantive order as a nullity. As between the parties, however, and unless and until reversed by the Court of Appeal, his decision (both as to jurisdiction and on the merits) was res judicata. As a judge of co-ordinate jurisdiction Smith J had no power to set it aside.’
Lord Millett said that an order made by a judge without jurisdiction was obviously vulnerable, but not wholly without effect. It must be obeyed unless and until set aside.

Judges:

Lord Hoffmann, Lord Millett, Lord Rodger of Earlsferry, Lord Carswell, Sir Charles Mantell

Citations:

[2005] UKPC 33, [2005] 1 WLR 3204

Links:

Bailii, PC, PC

Citing:

Cited – Mason v Desnoes and Geddes Ltd PC 2-Apr-1990
(Jamaica) A section enabled the Court to set aside a judgment where a party had not appeared at the trial.
Held: The reference to ‘the Court or a Judge’ made it clear that the jurisdiction may be exercised by a judge in chambers and: ‘ . . the . .
Cited – Pugh v Cantor Fitzgerald International CA 7-Mar-2001
Where judgment had been entered with damages to be assessed, the issues which could be raised on the assessment of damages were any directly affecting that assessment, but the defendant could not raise an issue which would impugn the judgement . .
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Cited – Dipcon Engineering Services Ltd v Bowen and Another PC 1-Apr-2004
PC Grenada ‘Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) . .
Cited – Lunnon v Singh CA 1-Jul-1999
Once judgment has been given, whether after a contested hearing or in default, for damages to be assessed, the defendant cannot dispute liability at the assessment hearing. . .
Cited – Evans v Bartlam HL 1937
The House emphasised the width of the jurisdiction to excuse default in the case of a defendant seeking to have a default judgment set aside and to be let in to defend.
Lord Atkin said: ‘The principle obviously is that, unless and until the . .
Obiter remarks criticised – Craig v Kanssen CA 1943
There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it . .
Cited – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Cited – In re Padstow Total Loss and Collision Assurance Association CA 1882
The High Court had made a winding up order against an insolvent association under a section of the Companies Act 1862 which applied to unregistered companies. The Act prohibited the formation of an unregistered company with more than twenty members. . .

Cited by:

Cited – O’Connor v Piccott and Another PC 17-Feb-2010
(Jamaica) The parties agreed for the sale of land. The seller sought specific performance by the buyer. The buyer had said there was a problem of title. The appellant had failed to defend the proceedings, and appealed against judgment in default. . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation, Litigation Practice

Updated: 01 July 2022; Ref: scu.229324

Ryan and Another v Strickland Jarvis: PC 29 Jun 2005

(Antigua and Barbuda) The parties disputed the effect of a joint venture of the sale of an additional range of cars through a car showroom. One party said the other had misrepresented thir contractual status, and the other said that an approach had been made to the main distributors within such a short time as to show bad faith.
Held: The Court of Appeal had reversed the trial judge’s findings as to the honesty of a party. As an appellate court it was wrong to disturb such a finding. Appeal allowed.

Judges:

Lord Hoffmann, Lord Millett, Lord Phillips of Worth Matravers (The Master of the Rolls), Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2005] UKPC 27

Links:

Bailii, PC

Citing:

Applied – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 01 July 2022; Ref: scu.228318

McKee v McKee: PC 15 Mar 1951

(Canada) There was a choice open to the trial judge facing a contest for the custody of a child: ‘It is possible that a case might arise in which it appeared to a court, before which the question of custody of an infant came, that it was in the best interests of that infant that it should not look beyond the circumstances in which its jurisdiction was invoked and for that reason give effect to the foreign judgment without further inquiry. It is, however, the negation of the proposition . . that the infant’s welfare is the paramount consideration, to say that where the learned trial judge has in his discretion thought fit not to take the drastic course above indicated, but to examine all the circumstances and form an independent judgment, his decision ought for that reason to be overruled. Once it is conceded that the court of Ontario had jurisdiction to entertain the question of custody and that it need not blindly follow on order made by a foreign court, the consequence cannot be escaped that it must form an independent judgment on the question, although in doing so it will give proper weight to the foreign judgment. What is the proper weight will depend on the circumstances of each case.’

Judges:

Merriman, Simonds, Morton of Henryton, Radcliffe, Tucker LL

Citations:

[1951] AC 352, [1951] UKPC 9, [1951] 1 All ER 942, [1951] 1 TLR 755

Links:

Bailii

Citing:

Approved – Re B’s Settlement, B v B 1940
Morton J said: ‘I desire to say quite plainly that in my view this Court is bound in every case, without exception, to treat the welfare of its ward as being the first and paramount consideration, whatever orders may have been made by the Courts of . .

Cited by:

Cited – J v C (An Infant) HL 19-Feb-1969
The House sought to construe the meaning of the words ‘shall regard the welfare of the infant as the first and paramount consideration’. Lord MacDermott said: ‘it seems to me that they must mean more than that the child’s welfare is to be treated as . .
Cited – Re J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
Cited – Re KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 01 July 2022; Ref: scu.228368

Stubbs v Gonzales The Attorney General: PC 25 May 2005

(Bahamas) The applicant, an MP, had been bankrupted. The debt was paid, but he appealed refusal to have the order quashed, saying that the fact of bankruptcy threatened his position as MP.
Held: The court of appeal had declined jusridiction. They had been wrong to do so. The powers of the court to hear appeals in civil proceedings were phrased generally, and the list of orders against which an appeal could be made did not include an order in bankruptcy proceedings. The appeal should be allowed.

Judges:

Lord Hoffmann, Lord Scott of Foscote, Baroness Hale of Richmond

Citations:

[2005] UKPC 22

Links:

Bailii, PC, PC

Citing:

Cited – In re X Y, Ex parte Haes 1902
Bankruptcy proceedings are not ‘in any sense criminal’. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency

Updated: 30 June 2022; Ref: scu.225483

Attorney-General of New Zealand v Ortiz: ChD 1984

The New Zealand government sought the return of a Maori carving which had been bought by the defendant after it had been illegally exported from New Zealand. The defendant replied that an English court should not itself enforce a foreign penal provision, the Historic Articles Act 1962 of New Zealand.
Held: The application succeeded. Under the rules of English private international law, this was neither a penal nor a revenue law and was accordingly enforceable by an English court. Order accordingly.

Judges:

Staughton J

Citations:

Times 08-Jul-1981

Jurisdiction:

England and Wales

Cited by:

Appeal From – Attorney-General of New Zealand v Ortiz CA 2-Jan-1982
The defendant was to sell a Maori carving which had been unlawfully exported from New Zealand. The Attorney General sought its recovery and an injunction to prevent its sale, relying on the Historical Articles Act 1962. The judge had ordered its . .
At First Instance – Attorney-General of New Zealand v Ortiz HL 3-Jan-1983
The Attorney General had sought the return of a valuable Maori carving which had been illegally exported from New Zealand and was to be sold by the defendant. He appealed against a finding that the provision (s12 Historical Articles Act 1962 of New . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 30 June 2022; Ref: scu.245567

Teeluck 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 had set out the law regarding such directions. The direction should always be given if the circumstances required it. It was not for an appellate court to say it would not have made a difference, and it was a positive duty on defence counsel to ask the judge to give it. The case fell ‘into the exceptional category of those where the omissions of counsel had such an effect on the trial and verdict that it cannot be said with sufficient certainty that the conviction was safe. The prosecution case against John depended entirely on the oral and written confessions attributed to him, the authenticity and reliability of which he strongly contested. His credibility in making his allegations against the police was a crucial issue in the trial. That being so, it was vital for him to have the benefit, to which he was in law entitled, of both limbs of a good character direction from the judge. ‘

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Walker of Gestingthorpe, Lord Carswell

Citations:

[2005] UKPC 14, Times 04-May-2005, [2005] 1 WLR 2421

Links:

Bailii, PC

Citing:

Cited – Regina v McCoy CACD 10-Dec-1999
The judge should direct the jury fully about the handicap which the inability to cross-examine the witness placed upon the defence, and possible lines of cross-examination which the appellants had lost: ‘If a statement of a critical witness is to be . .
Cited – Regina v Vye etc CACD 7-Apr-1993
Detailed guidance was given on good character directions, as to how and when they should be given, but: ‘Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this . .
Cited – Regina 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 . .
Cited – Regina v Fulcher CACD 1995
The previous non-accidental injuries sustained by the baby whom F was alleged to have murdered were relevant to show not only that the child, being in pain, was more likely to be fractious, but also how F was likely to react to the child crying. The . .
Cited – Regina v Kamar CACD 31-Mar-1999
Where counsel had genuinely omitted to request a good character direction from the judge, and the defendant was entitled to one and did not receive it, the defendant should be acquitted on appeal. It will rarely be possible for a court of appeal to . .
Cited – Berry v The Queen PC 15-Jul-1992
(Jamaica) A failure to comply with Jamaica’s own rules on disclosure was a material irregularity. Where credibility is in issue, a good character direction is always relevant. . .
Cited – Kizza Sealey and Marvin Headley v The State PC 14-Oct-2002
PC (Trinidad and Tobago) The defendant appealed his conviction. He said that his counsel had failed to ensure that the judge should mention the fact that he was of previous good character in defending him.
Cited – Barrow 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 . .
Cited – Thompson 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 . .
Cited – Regina v Clinton CACD 1993
Where counsel’s conduct is called in question, the general principle requires the court to focus on the impact of the faulty conduct on the trial and result. . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Cited – Boodram v The State PC 10-Apr-2001
(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to . .

Cited by:

Cited – Mantoor 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 . .
Cited – Taylor v The Queen PC 13-Mar-2006
(Jamaica) The defendant appealed against his conviction for murder. He complained that admissions against each other by the co-defendants had been entered in evidence despite his allegations of police mistreatment. The statement was the only . .
Cited – Simmons and Another v Regina PC 3-Apr-2006
(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no . .
Cited – 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.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 29 June 2022; Ref: scu.223881

McLeod v St Aubyn: PC 1899

St. Vincent: The defendant was accused of publishing a statement by handing over an unread copy of a newspaper for return the following day.
Held: There was no sufficient degree of awareness or intention to impose legal responsibility for that ‘publication’.
Lord Morris said: ‘A printer and publisher intends to publish, and so intending cannot plead as a justification that he did not know the contents. The appellant in this case never intended to publish.’

Judges:

Lord Morris

Citations:

[1899] AC 549, [1899] UKPC 51

Links:

Bailii

Cited by:

Cited – Bunt v Tilley and others QBD 10-Mar-2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
Cited – Metropolitan International Schools Ltd. (T/A Skillstrain And/Or Train2Game) v Designtechnica Corp (T/A Digital Trends) and Others QBD 16-Jul-2009
The claimant complained that the defendant had published on its internet forums comments by posters which were defamatory of it, and which were then made available by the second defendant search engine. The court was asked what responsibility a . .
Lists of cited by and citing cases may be incomplete.

Contempt of Court, Commonwealth

Updated: 29 June 2022; Ref: scu.223753

Gianchand Jahree v The State: PC 28 Feb 2005

(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation is the right to arrange representation at court, not a guarantee that the defendant would not be tried without representation. The behaviour of the magistrate was to be criticised, but this was a simple case relying upon bare contradictions of the prosecutor’s case, and no miscarriage of justice had taken place.

Citations:

[2005] 1 WLR 1952, [2005] UKPC 7

Links:

Bailii, PC

Citing:

Cited – Mohammadally v The State 2000
(Supreme Court of Mauritius) The appellant had dispensed with the services of her counsel four days before the date of trial and had not taken steps to engage another. The trial judge refused to grant her a postponement, on the ground that she could . .
Cited – Regina v Tuegel CACD 2000
The court retains a common law power to adjourn part of its sentencing procedure. Courts should exercise considerable restraint in their interventions. . .
Cited – Robinson v The Queen PC 1985
Where a defendant found himself unrepresented on the day of trial, an adjournment should be granted. The constitutional right to representation was not a guarantee of representation but a right for the defendant to arrange representation at his own . .
Cited – Dunkley and Robinson v The Queen PC 1-Nov-1994
(Jamaica) The appellant’s counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings.
Held: A defendant in a capital murder case is to be allowed to find . .
Cited – Dunkley and Robinson v The Queen PC 1-Nov-1994
(Jamaica) The appellant’s counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings.
Held: A defendant in a capital murder case is to be allowed to find . .
Cited – Higgs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .

Cited by:

Cited – Grant 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.

Commonwealth, Criminal Practice

Updated: 29 June 2022; Ref: scu.223453

Peterson v Inland Revenue: PC 28 Feb 2005

PC (New Zealand) The Board considered a tax avoidance scheme of a kind which has been widely used, has excited the attention of the revenue authorities in many countries, and has frequently been challenged by them, sometimes successfully and sometimes not. The success of any challenge depends on the specific features of the scheme, the particular fiscal background, the weaponry available to the tax authorities to counter the effect of the scheme, and the marksmanship with which such weaponry is discharged.

Judges:

Lord Bingham of Cornhill, Lord Millett, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood

Citations:

[2005] UKPC 5, [2005] STC 448

Links:

Bailii, PC

Commonwealth

Updated: 29 June 2022; Ref: scu.223455

Kelvin 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 Board had to remember that the court of appeal had already considered these circumstances, and was much closer to the local situation and had considered the issues. It is not the function of the Board to make itself a second constitution of the Appeal Division and to duplicate its process. Appeal dismissed.
PC Lord Brown of Eaton-under-Heywood said: ‘The law is now clearly established and can simply be stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.’

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2005] 1 WLR 1660, [2005] UKPC 4, Times 28-Feb-2005

Links:

Bailii, PC

Citing:

Cited – Stafford v Director of Public Prosecutions HL 1974
The House rejected the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. It . .
Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Cited – Regina v Hakala CACD 2002
The court discussed the correct approach of the Court of Appeal to new evidence on appeal: ‘However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this Court, is whether, in the . .
Applied – Stafford and others v The State (Note) PC 30-Jul-1998
PC (Trinidad and Tobago) Where the matter at issue is the exercise of a discretion by a trial judge. ‘It has been said many times that it is not the function of the Judicial Committee to act as a second Court of . .
Cited – Regina v Ishtiaq Ahmed CACD 6-Dec-2002
Approach to fresh evidence produced on appeal. . .
Cited – Regina v James Hanratty (Deceased) CACD 10-May-2002
Posthumous Appeal – Clear Purpose and Care Needed
An appeal was presented against the conviction for a murder many years earlier. The prosecution sought to introduce DNA evidence to support its case. The appellant party objected.
Held: The purpose of the appeal was to achieve justice, and . .

Cited by:

Cited – Bowman, Regina v CACD 2-Mar-2006
The defendant appealed his conviction of murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . .
Cited – Hendy, Regina v CACD 12-Apr-2006
The applicant was sentenced to life imprisonment in 1992 for a brutal murder. He had pleaded diminished responsibility. There were now no papers from the trial. Medical evidence now suggested that at the time of the trial he would have suffered a . .
Cited – Noye, Kenneth, Regina v CACD 22-Mar-2011
The prisoner appealed against his conviction for murder on reference from the CCRC. There were new doubts about the reliabiity of the expert forensic expert.
Held: The appeal was dismissed. Dr H’s evidence did not impinge on the essential . .
Cited – Dizaei v Regina CACD 16-May-2011
The defendant had been convicted of misconduct in a public office and doing acts with intent to pervert the course of justice. He now appealed saying that he could demonstrate that the principal witness was dishonest. The prosecution replied that . .
Cited – 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 . .
Cited – S and Others v Regina CACD 28-Jun-2012
Four defendants appealed against convictions for child sex abuse. The convictions had taken place at a time when current guidance to examining physicians did not apply. In each case the defendants consented to new evidence from the prosecution.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 29 June 2022; Ref: scu.223015

Fitzgibbon v HM Attorney General: ChD 9 Feb 2005

The claimant sought declarations that the government of Australia was not being conducted in accordance with the 1900 Act as it should be.
Held: Though the Act was an English Act, the Courts of England now have no jurisdiction over Australia: ‘when HM the Queen is exercising her functions under the Constitution, she is acting pursuant to Australian law. It is for the Australian courts to apply Australian law to determine the capacity in which HM the Queen is acting, the appropriate seal and the consequences (if any) if the wrong seal is used. It is not for the United Kingdom courts to enter the field proffering its view as to the proper interpretation of the Constitution. The claim was rejected on other grounds also.

Judges:

Lightman J

Citations:

[2005] EWHC 114 (Ch), Times 15-Mar-2005

Links:

Bailii

Statutes:

Commonwealth of Australia Act 1900

Jurisdiction:

England and Wales

Citing:

Cited – Buck v Attorney General CA 2-Jan-1965
By an action for declaratory relief, a challenge was offered to the validity of the Order in Council giving effect to the 1961 Act.
Held: The appeal failed. As a matter of international comity an English court should not grant declarations . .
Cited – Regina v Foreign Secretary ex parte Indian Association of Alberta CA 1982
The court traced the transformation of the doctrine of the indivisibility of the crown to the modern docrtrine of divisibility. May LJ: ‘Although at one time it was correct to describe the Crown as one and indivisible, with the development of the . .
Cited – Quark Fishing Ltd, Regina (on the Application Of) v Secretary of State for the Foreign and Commonwealth Affairs CA 29-Apr-2004
The claimant sought damages for having had its licence to catch Patagonian toothfish off South Georgia revoked, saying that it had infringed its property rights under the Convention.
Held: Though the Convention rights had been extended to . .
Cited – Regina v Rochdale MBC ex parte Schemet 1992
In a proper case the court may permit a challenge to a decision which is months out of time. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 29 June 2022; Ref: scu.222591

New Zealand Shipping Co Ltd v A M Satterthwaite and Co Ltd (The Eurymedon): PC 25 Feb 1974

The Board considered the extent to which an exclusion clause in a bill of lading could be relied on by the third party stevedore, an independent contractor employed by the carrier, who was sued by the consignees of goods for negligently damaging the goods while unloading them.
Held: (Majority) The board gave effect to the clause by regarding the shipper as having made an offer of a unilateral contract to the stevedores to unload the goods on terms incorporating the exclusion clause. This offer was accepted by the stevedores by commencing work.
Lord Wilberforce said that the bill of lading: ‘ brought into existence a bargain initially unilateral but capable of becoming mutual, between the shipper and the [stevedores], made through the carrier as agent. This became a full contract when the [stevedores] performed services by discharging the goods. The performance of these services for the benefit of the shipper was the consideration for the agreement by the shipper that the [stevedores] should have the benefit of the exemptions and limitations contained in the bill of lading.’ The exclusion clause was entered into by the carrier as agent for its servants, agents and independent contractors, and therefore ‘the exemption is designed to cover the whole carriage from loading to discharge, by whomsoever it is performed: the performance attracts the exemption or immunity in favour of whoever the performer turns out to be’. Also ‘In the opinion of their Lordships, to give the appellant the benefit of the exemptions and limitations contained in the bill of lading is to give effect to the clear intentions of a commercial document, and can be given within existing principles. They see no reason to strain the law or the facts in order to defeat these intentions. It should not be overlooked that the effect of denying validity to the clause would be to encourage actions against servants, agents and independent contractors in order to get round exemptions… ‘

Judges:

Lord Wilberforce

Citations:

[1975] AC 154, [1974] UKPC 1, [1974] UKPC 4

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – The Mahkutai PC 24-Apr-1996
(Hong Kong) The question was whether shipowners, who were not parties to the bill of lading contract between the charterers and carriers on the one part, and the cargo-owners, the bill of lading being a charterer’s bill, could enforce against the . .
Cited – Butler Machine Tool Co Ltd v Ex-Cell-O Corporation CA 25-Apr-1977
The plaintiff offered to sell a machine tool to the defendant. The offer said that its terms had precedence over any terms in the buyer’s order, and contained a clause allowing a price variation. The defendant’s order form allowed no variation, and . .
Lists of cited by and citing cases may be incomplete.

Contract, Transport, Commonwealth, Contract

Updated: 29 June 2022; Ref: scu.221974

Al Sabah and Al Sabah v Grupo Torras SA Culmer as trustee of the property of Sheikh Fahad Mohammed Al Sabah, bankrupt: PC 11 Jan 2005

PC (Cayman Islands) The claimant complained of an order of the Court of Appeal of the Cayman Islands, requiring him to comply with a letter of request from the Grand Court of the Bahamas.
Held: In earlier times, Acts of the English parliament were readily held to apply throughout the Empire. Over time two other principles came to apply; that England should not interfere unasked in the laws of Commonwealth countries, and that laws passed at Westminster should not apply extra-territorially unless clearly intended to do so. In 1914 the Bahamas, Jamaica and the Cayman Islands were colonies, but each was acquired and governed differently, and had later taken different routes forward. After independence, the new insolvency laws of Jamaica were limited to applying also to the Cayman Islands. The Cayman legislation on this point appeared to have no effect. The 1985 Act did not repeal the application outside the UK of section 122 of the 1914 Act, which remained in effect, and the Cayman Islands had jurisdiction to make the order it had to comply with the letter of request.

Judges:

Lord Hoffmann, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

Times 14-Jan-2005, [2005] UKPC 1

Links:

PC, Bailii

Statutes:

Bankruptcy Act 1914 122

Citing:

See Also – Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al Sabah and others (2) CA 21-Mar-1997
The Court of Appeal should interfere with Judge’s case management decisions only with great reluctance. . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al-Sabah Et Al CA 2-Oct-1997
A party choosing to provide discovery of substantial documents on a Compact Disk must ask the court first before charging extra for the service. . .
Cited – Grupo Torras SA and Another v Al-Sabah and others Lst CA 6-Feb-1998
. .
See Also – Barbara Alison Al-Sabah and Another v Grupo Torras S A and Others PC 10-Oct-2000
PC (Jersey) The board refused special leave to appeal: ‘Normally all such questions of case management are matters for the courts concerned and are not suitable for any further review before their Lordships’ . .
See Also – Khaled Naser Hamoud Al-Sabah and Juan Jose Folchi Bonafonte v Grupo Torras SA CA 2-Nov-2000
The court discussed the approach to be taken when asked to act upon evidence which it found to be unreliable, though the witness’s credibility had not been destroyed. In a claim for dishonest assistance it is not necessary to show a precise causal . .
See Also – Grupo Torras Sa and Another v Al-Sabah and others CA 30-Jul-2001
The hearing followed others concluding that the claimant had been defrauded of substantial sums by the defendants. The parties sought clarifications. . .
Cited – Callender, Sykes and Co v Colonial Secretary of Lagos PC 1891
Nigeria had no bankruptcy law of its own.
Held: The general vesting provisions of the Bankruptcy Act 1869 of the United Kingdom (and not merely provisions about reciprocal enforcement) applied in Nigeria. . .
Cited – Regina v Jameson 1896
As to possessions after acquired by occupancy, settlers from the parent country take their law with them into such possessions so far as they may reasonably be applied. . .
Cited – Re Hart, ex parte Green 1912
The original disposal by a debtor was prior to the act of bankruptcy, though the later transfer by the disponee to the defendant was after it.
Held: In such a case, the trustee could not succeed against a transferee for value without notice. . .
Cited – Re Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .
Cited – Hughes and others v Hannover Re Ruckversicherungs-Aktiengesellschaft CA 28-Jan-1997
An insolvency court answering an international call for assistance has the full range of remedies available to it. It may exercise ‘its own general jurisdiction and powers’ as well as the insolvency laws of England and the corresponding laws of the . .
Cited – Galbraith v Grimshaw and Baxter HL 2-Jan-1910
Where a Scottish sequestration occurred shortly after an English garnishee order nisi, the judgment creditor prevailed over the trustee in bankruptcy, although the result would have been different if both the attachment and the bankruptcy had . .
Cited – Re Osborn 1931
An Isle of Man trustee in bankruptcy was seeking the assistance of the English court in relation to the bankrupt’s immovable property in England.
Held: Section 122 was to be given a cautious interpretation. . .
Cited – Re A Debtor (Order in Aid No 1 of 1979) ex parte Viscount of the Royal Court of Jersey 1981
The court noted the differences in bankruptcy law between England and Jersey: ‘The word ‘bankruptcy’ in section 122, if indeed it refers at all to process of bankruptcy, must, in my judgment, be construed in a wide sense, for the section is designed . .

Cited by:

See Also – Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al Sabah and others (2) CA 21-Mar-1997
The Court of Appeal should interfere with Judge’s case management decisions only with great reluctance. . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al-Sabah Et Al CA 2-Oct-1997
A party choosing to provide discovery of substantial documents on a Compact Disk must ask the court first before charging extra for the service. . .
See Also – Grupo Torras SA and Another v Al-Sabah and others Lst CA 6-Feb-1998
. .
See Also – Barbara Alison Al-Sabah and Another v Grupo Torras S A and Others PC 10-Oct-2000
PC (Jersey) The board refused special leave to appeal: ‘Normally all such questions of case management are matters for the courts concerned and are not suitable for any further review before their Lordships’ . .
See Also – Khaled Naser Hamoud Al-Sabah and Juan Jose Folchi Bonafonte v Grupo Torras SA CA 2-Nov-2000
The court discussed the approach to be taken when asked to act upon evidence which it found to be unreliable, though the witness’s credibility had not been destroyed. In a claim for dishonest assistance it is not necessary to show a precise causal . .
See Also – Grupo Torras Sa and Another v Al-Sabah and others CA 30-Jul-2001
The hearing followed others concluding that the claimant had been defrauded of substantial sums by the defendants. The parties sought clarifications. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency

Updated: 28 June 2022; Ref: scu.221052

Thomas Cook (New Zealand) Limited v Inland Revenue: PC 10 Nov 2004

(New Zealand) Under the Act, certain companies had a duty to pay over to the Inland Revenue balance held on old and dormant accounts. They had issued travellers cheques which had never been presented. The revenue argued that the claim arose six months after the cheques were issued.
Held: The Act was unconcerned with Limitation Act issues. ‘The monies unclaimed under these Thomas Cook drafts were for the purposes of the 1971 Act owing and payable from their date of issue and it matters not whether the drafts could ever have been sued upon without a demand being made, whether before or after they became stale.’ The sums were unclaimed sums within the Act, and the appeal by the company was dismissed.

Judges:

Lord Bingham of Cornhill, Lord Clyde, Lord Millett, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood

Citations:

[2004] UKPC 53

Links:

Bailii, PC

Statutes:

Unclaimed Money Act 1971 4(1)(e)

Citing:

Cited – Joachimson v Swiss Bank Corporation CA 1921
The service of the order nisi binds the debt in the hands of the garnishee – that is, it creates a charge in favour of the judgment creditor. No cause of action for non payment arises in respect of money standing on a current account until the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Limitation, Banking

Updated: 27 June 2022; Ref: scu.219590

Jerome v Kelly (Inspector of Taxes): ChD 15 Apr 2002

The land was owned by members of family in undivided shares. Contracts were exchanged for its sale, but the land was divided before the sale was completed. Part of the land had come to be in the ownership of trusts in Bermuda. The Inspector sought to assess the British resident taxpayer with the chargeable gain acquired by the Bermudan Trustees.
Held: The provisions of s28 which deemed gains to have been acquired by others could not be used to hold a person being liable to gains tax on a gain which he did not make, and to leave other unconnected persons who had made a gain free of the tax.

Judges:

Mr Justice Park

Citations:

Times 19-Apr-2002

Statutes:

Taxation of Chargeable Gains Act 1992 28 60, Capital Gains Tax Act 1979 27(1)

Jurisdiction:

England and Wales

Citing:

Appealed to – Jerome v Kelly (HM Inspector of Taxes) CA 20-Dec-2002
The taxpayer had contracted for the disposal of land in three tranches. The later sales were by a Bahamian company to whom the land was assigned subject to the contract.
Held: The later sales were under the original contract. That contract . .

Cited by:

Appeal from – Jerome v Kelly (HM Inspector of Taxes) CA 20-Dec-2002
The taxpayer had contracted for the disposal of land in three tranches. The later sales were by a Bahamian company to whom the land was assigned subject to the contract.
Held: The later sales were under the original contract. That contract . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Capital Gains Tax

Updated: 27 June 2022; Ref: scu.170065

Surjit Lal Chhabda v Commissioner of Income Tax: 1976

(Indian Supreme Court) The court defined the idea of coparceny: ‘A Hindu coparcenary is a much narrower body than the joint family. It includes only those persons who acquire by birth an interest in the joint or coparcenary property and these are the sons, grandsons and great-grandsons of the holder of the joint property for the time being, that is to say the three generations next to the holder in unbroken male descent. Since under the Mitakshara Law, the right to joint family property by birth is vested in the male issue only, females . . cannot be coparceners…’

Citations:

[1976] AIR 109

Jurisdiction:

England and Wales

Cited by:

Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 17 June 2022; Ref: scu.523688

Candlewood Navigation Corporation Limited v Mitsui OSK Lines Limited and Matsuoka Steamship Co Limited: PC 1 Jul 1985

(New South Wales) Two ships had collided, after, without negligence, an anchor on one ship failed. The Supreme Court had found the crew negligent after failing to react appropriately to the loss of the anchor. The company now appealed against the damages awarded against it.
Held: The Board approved the reasoning of Jacob J in Caltex.
Lord Fraser approved the statement of principle constituting the limit or control mechanism to be imposed upon the liability of a wrongdoer towards those who have suffered economic loss on consequence of negligence.

Judges:

Fraser of Tullybelton, Roskill, Brandon of Oakbrook, Templeman, Griffiths LL

Citations:

[1986] 1 AC 1, [1985] UKPC 21, [1985] 3 WLR 381, [1985] 2 Lloyd’s Rep 303, [1985] 2 All ER 935

Links:

Bailii

Jurisdiction:

Australia

Citing:

Approved – Caltex Oil (Australia) Pty Ltd v Dredge ‘Willemstad’ 9-Dec-1976
Austlii (High Court of Australia) Negligence – Duty of care – Foreseeability of harm – Economic loss not consequential upon damage to person or property – Damage to property of one person – Economic loss suffered . .
Cited – Elliot Steam Tug Co Ltd v Shipping Controller CA 1922
Scrutton LJ said: ‘At common law there is no doubt about the position. In case of a wrong done to a chattel the common law does not recognize a person whose only rights are a contractual right to have the use or services of the chattel for purposes . .

Cited by:

Cited – D Pride and Partners (A Firm) and Others v Institute for Animal Health and Others QBD 31-Mar-2009
The claimants sought damages after the loss of business when the defendants’ premises were the source of an outbreak of foot and mouth disease. The organism had escaped from their premises via a broken drain.
Held: Much of the damage claimed . .
Lists of cited by and citing cases may be incomplete.

Damages, Commonwealth

Updated: 17 June 2022; Ref: scu.331085

Makin v Attorney-General for New South Wales: PC 12 Dec 1893

The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons from other mothers and that their bodies were found buried in gardens of houses occupied by the prisoners.
Held: The evidence was admissible.
As to the admission of similar fact evidence, ‘It is undoubtedly not competent for the prosecution to adduce evidence tending to shew that the accused has been guilty of criminal acts other than those covered by the indictment, for the purpose of leading to the conclusion that the accused is a person likely from his criminal conduct or character to have committed the offence for which he is being tried. On the other hand, the mere fact that the evidence adduced tends to shew the commission of other crimes does not render it inadmissible if it be relevant to an issue before the jury, and it may be so relevant if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or to rebut a defence which would otherwise be open to the accused. The statement of these general principles is easy, but it is obvious that it may often be very difficult to draw the line and to decide whether a particular piece of evidence is on the one side or the other.’
The court expounded the principles on which a Court of Criminal Appeal should act, and construed the New South Wales Act, which in defining a strictly appellate jurisdiction in criminal matters, provided ‘that no conviction or judgment thereon shall be reversed, arrested or avoided in any case so stated, unless for some substantial wrong or other miscarriage of justice’.
Held: To transfer the decision of the guilt of the accused from a jury, acting on oral testimony, to an appellate tribunal, possessing that testimony only in writing, cannot be said to involve no miscarriage of justice, and hence that a court of criminal appeal is not entitled to dismiss the appeal by retrying the case on shorthand-notes, or by holding that, if the trial judge had excluded the evidence, which he wrongly received, the verdict would probably have been the same.

Judges:

Lord Herschell LC

Citations:

[1894] AC 57, [1893] UKPC 56

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – Rex v Dyson CCA 1908
The court adopted the practice for selecting cases for which leave to appeal should be given which was set down in Makin . .
Cited – Ibrahim v The King PC 6-Mar-1914
(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by . .
Cited – Director of Public Prosecutions v P HL 1991
The defendant faced specimen counts of rape and incest against each of his two daughters. The trial judge refused an application for separate trials in respect of the offences alleged against each daughter. The defendant was convicted.
Held: . .
Cited – Regina v Boardman HL 1974
The defendant appealed the admission of similar fact evidence against him. Acts of buggery were alleged by a schoolmaster with boys in which the accused was the passive partner.
Held: In order to be admissible similar facts must bear a . .
Cited – O’Brien v Chief Constable of the South Wales Police CA 23-Jul-2003
The claimant sought damages for malicious prosecution, and sought to adduce similar fact evidence. The defendant appealed an order admitting the evidence.
Held: Comparisons between admission of similar fact evidence in civil and criminal . .
Cited – Sattin v National Union Bank Ltd CA 21-Feb-1978
The plaintiff sought damages from the loss of a diamond deposited with the defendant bank as security. He asked to present evidence about the experience of another customer who had lost jewellery he had deposited with it.
Held: The proposed . .
Cited – Berger v Raymond Sun Ltd 1984
The court distinguished the test of the admissibility of evidence of similar facts from the criteria according to which the court should exercise its discretion to exclude such evidence. He said that the test of admissibility was the same in civil . .
Cited – Regina v Straffen CCA 20-Aug-1952
The defendant had been arrested for murders of young girls, but after being found unfit to plead, he was committed to Broadmoor. While he escaped another girl was murdered, and he was charged. The prosecutor sought to bring in evidence of admissions . .
Cited – O’Brien v Chief Constable of South Wales Police HL 28-Apr-2005
The claimant sought damages against the police, and wanted to bring in evidence of previous misconduct by the officers on a similar fact basis. They had been imprisoned and held for several years based upon admissions which they said they had . .
Approved – Regina v Brooks CACD 1992
. .
Cited – Regina v Beedles CACD 31-Jul-1996
The defendant appealed against his conviction for sexual assault. The issue was whether a note written by the complainant to her teacher was admissible as evidence of recent complaint to corroborate her statement. Similar allegations had been made . .
Cited – Regina v Wright and Ormerod CACD 1990
The defendants were charged with indecent assault on a child of 5, who said that the defendants had hurt her in the back and said naughty things to her. The Judge also admitted evidence from the child’s mother of the complaint the child had made to . .
Cited – Mitchell, Regina v SC 19-Oct-2016
Appeal against conviction for murder. Evidence was agreed with her representatives as to previous acts using knives, but was presented despite withdrawal by her of her consent. The prosecution now appealed against the quashing of the conviction.
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence

Updated: 11 June 2022; Ref: scu.184203

Hunter Area Health Service v Presland: 21 Apr 2005

(Supreme Court of New South Wales – Court of Appeal) The plaintiff, who had been negligently discharged from a psychiatric hospital, was acquitted of murdering a woman six hours later on the ground of mental illness but ordered to be detained in strict custody as a mental patient. Held; the court applied the maxim if ex turpi cause non oritur actio.
Austlii NEGLIGENCE – duty of care – nature and content of duty of care owed to psychiatric patient – Mental Health Act 1900 – ex turpi causa non actio – public policy – causation.

Citations:

[2005] NSWCA 33, (2005) 63 NSWLR 22

Links:

Austlii

Jurisdiction:

Australia

Cited by:

Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Negligence

Updated: 11 June 2022; Ref: scu.347284

Andrews v Grand and Toy Alberta Ltd: 1978

(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care.
Held: Dickson J said: ‘It is clear that a plaintiff cannot recover for the expense of providing for basic necessities as part of the cost of future care while still recovering fully for prospective loss of earnings. Without the accident, expenses for such items as food, clothing and accommodation would have been paid for out of earnings. They are not an additional type of expense occasioned by the accident.
When calculating the damage award, however, there are two possible methods of proceeding. One method is to give the injured party an award for future care which makes no deduction in respect of the basic necessities for which he would have had to pay in any event. A deduction must then be made for the cost of such basic necessities when computing the award for loss of prospective earnings: ie the award is on the basis of net earnings and not gross earnings. The alternative method is the reverse: ie to deduct the cost of basic necessities when computing the award for future care and then to compute the earnings award on the basis of gross earnings.
The trial judge took the first approach, reducing loss of future earnings by 53 per cent. The Appellate Division took the second. In my opinion, the approach of the trial judge is to be preferred. This is in accordance with the principle which I believe should underlie the whole consideration of damages for personal injuries: that proper future care is the paramount goal of such damages. To determine accurately the needs and costs in respect of future care, basic living expenses should be included.
The costs of necessaries when in an infirm state may well be different from those when in a state of health. Thus, while the types of expenses would have been incurred in any event, the level of expenses for the victim may be seen as attributable to the accident. In my opinion, the projected cost of necessities should, therefore, be included in calculating the cost of future care, and a percentage attributable to the necessities of a person in a normal state should be reduced from the award for future earnings.’

Judges:

Laskin CJ and Martland, Judson, Ritchie, Spence, Pigeon, Dickson, Beetz and de Grandpre JJ

Citations:

[1978] 2 SCR 229, (1978) 83 DLR (3d) 452, [1978] 1 WWR 577, 1978 CanLII 1 (SCC), 8 AR 182, 3 CCLT 225, AZ-78111098, [1978] CarswellAlta 214, [1978] SCJ No 6 (QL)

Links:

Canlii

Jurisdiction:

Canada

Cited by:

Applied – Watkins v Olafson 1989
(Supreme Court of Canada) The plaintiff sought damages for his injury. He was cared for by the state between the accident and the trial and so had no claim for the cost of care during that period. The Appeal Court (British Columbia) had held that in . .
Cited – O’Brien and others v Independent Assessor HL 14-Mar-2007
The claimants had been wrongly imprisoned for a murder they did not commit. The assessor had deducted from their compensation a sum to represent the living costs they would have incurred if living freely. They also appealed differences from a . .
Cited – Heil v Rankin, Rees v Mabco (102) Ltd, Schofield v Saunders and Taylor Ltd and Other cases CA 23-Mar-2000
The Law Commission had recommended that the general level of damages awarded for pain suffering and loss of amenity in personal injury cases should be raised. The Court now considered several cases on the issue.
Held: The court would do so. . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 11 June 2022; Ref: scu.250033

Robert De Maroussem and others (Heirs to the late Paul De Maroussem) v The Commissioner of Income Tax: PC 22 Jul 2004

PC (Mauritius) The appellant administered an estate. He sold land for development. He thought the sale was taxable as a capital receipt, but should have declared it as income from trading in land. He appealed a finding that he was guilty of ‘wilful neglect’ and therefore subject to an out of time assesment to income tax.
Held: There had been no finding that the failure to disclose was intentional or purposive, or that he must have known the truth. Accordingly there was no basis for the finding of wilful neglect under the statute. Appeal allowed.

Citations:

[2004] UKPC 43, Times 13-Sep-2004

Links:

Bailii, PC

Statutes:

(Mauritius) Income Tax Act 1995 130(2)

Jurisdiction:

Commonwealth

Commonwealth

Updated: 11 June 2022; Ref: scu.200082

King-Emperor v Deshpande: 7 May 1946

Citations:

(1946) 115 LJPC 71, [1946] UKPC 18

Links:

Bailii

Cited by:

Cited – The 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 11 June 2022; Ref: scu.199441

Carter Holt Harvey Building Products Group Ltd v The Commerce Commission: PC 14 Jul 2004

(New Zealand) The company had been found guilty under the Act of abusing its dominant position. The appeal was restricted to whether the dominant position was being used in the way suggested. Would the company have introduced its price cuts if it had not had the dominant position it did have.
Held: ‘while it is legitimate to infer ‘purpose’ from use of a dominant position producing an anti-competitive effect, it may be dangerous to argue the converse that because the anti-competitive purpose was present, therefore there was use of a dominant position.’ The court appeared to have wrongly inferred an abuse of the dominant position. A dominant firm uses its position of dominance when it engages in price-cutting with a view to recouping its losses without loss of market share by raising prices without fear of reprisals afterwards. Price-cutting is not a badge of the use of dominance, and the court must give appropriate weight to the counterfactual test. Appeal allowed (by a majority)

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Carswell

Citations:

[2004] UKPC 37

Links:

Bailii

Statutes:

Commerce Act 1986 36(1)

Citing:

Cited – Telecom Corporation of New Zealand Ltd v Clear Communications Ltd 1995
(New Zealand) A trader is entitled, before he enters upon a line of conduct which is designed to affect his competitors, to know with some certainty whether or not what he proposes to do is lawful. The meaning and effect of section 36 of the 1986 . .
Cited – Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd 1989
(Australia) The operation of section 46 of the 1974 Act, is predicated on the assumption that competition is a means to the end of protecting the interests of consumers: ‘Competition by its very nature is deliberate and ruthless. Competitors jockey . .
Cited – AKZO Chemie BV v Commission of the European Communities ECJ 3-Jul-1991
Europa Regard for the rights of the defence requires that the undertaking concerned shall have been enabled to make known effectively its point of view on the documents relied upon by the Commission in making the . .
Cited – Tetra Pak v Commission ECJ 14-Nov-1996
When defining the relevant market for the purpose of applying Article 86 of the Treaty, the competitive conditions and the structure of supply and demand on the market are relevant criteria for determining whether certain products are . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Commercial

Updated: 11 June 2022; Ref: scu.198903

Jennings 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 action for defamation claiming the privilege.
Held: The original statement had privilege but the repetition outside parliament by a mere reference was a republication which did not attract the same privilege. The court could rely upon the Hansard record to provide evidence of what was being repeated. At common law every republication of a libel is a new libel and a new cause of action.
‘In a case such as the present, however, reference is made to the parliamentary record only to prove the historical fact that certain words were uttered. The claim is founded on the later extra-parliamentary statement. The propriety of the member’s behaviour as a parliamentarian will not be in issue. Nor will his state of mind, motive or intention when saying what he did in Parliament. The situation is analogous with that where a member repeats outside the House, in extenso, a statement previously made in the House. The claim will be directed solely to the extra-parliamentary republication, for which the parliamentary record will supply only the text. ‘

Judges:

Lord Bingham of Cornhill, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Dame Sian Elias

Citations:

[2004] UKPC 36, Times 19-Jul-2004, [2004] EMLR 22, [2005] 1 AC 115, [2005] 2 All ER 273

Links:

Bailii, PC, PC

Statutes:

Bill of Rights 1689 9

Citing:

Cited – 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 . .
Cited – Sir 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 . .
Cited – Stockdale 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 . .
Cited – 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 . .
Cited – Pepper (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 . .
Cited – Bradlaugh 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 . .
Cited – Pickin 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: . .
Cited – 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 . .
Cited – Hamilton 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 . .
Cited – Church 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 . .
Cited – A v United Kingdom ECHR 2002
‘Statements made by MPs outside the Houses of Parliament are subject to the ordinary laws of defamation and breach of confidence, save where they are protected by qualified privilege.’ and ‘Furthermore, the immunity afforded to MPs in the United . .
Cited – Regina v Secretary of State for Foreign Affairs Ex Parte the World Development Movement Ltd QBD 11-Jan-1995
Judicial Review was granted in respect of a decision to fund the Pergau Dam. There was a possible argument that it involved a misuse of money which had been intended for foreign aid. . .
Cited – Rex v Lord Abingdon 1794
A Member of Parliament chose to have his earlier speech in the House re-published ‘under his authority and sanction . . and at his expense’.
Held: Statements made outside Parliament are not protected by absolute privilege even if they simply . .
Cited – Rex v Creevey Esq MP 1813
A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .

Cited by:

Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
Cited – Regina 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 . .
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 – Chaytor 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 . .
Cited – Makudi v Baron Triesman of Tottenham In London Borough of Haringey QBD 1-Feb-2013
The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the . .
Cited – Makudi 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation, Constitutional

Updated: 11 June 2022; Ref: scu.198904

Carter (T/A Michael Carter Partnership) v Harold Simpson Associates (Architects) Ltd (Jamaica): PC 14 Jun 2004

(Jamaica) A joint venture partnership dispute was referred to arbitration. Certain elements were appealed and remitted. One party claimed that the entire arbitration was deprived of legal effect.
Held: The amended award following remittal was not a new award. In general on such a remittal, the arbitrator’s powers were limited to the terms of the remission.

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Dame Sian Elias

Citations:

Times 29-Jun-2004, [2004] UKPC 29

Links:

Bailii

Citing:

Cited – Johnson v Latham 1851
In an arbitration concerning the right to maintain a weir, one issue was the depth of water which the defendant was entitled to maintain behind the weir. The award directed that, to define the height, marks should be placed as a third party should . .
Cited – Margulies Brothers Ltd v Dafnis Thomaides and Co (UK) Ltd 1958
A court has power to amend an award to put it into a form which is enforceable. . .
Cited – Re Boks and Co v Peters, Rushton and Co Ltd CA 1919
The alternative procedure for seeking enforcement of an arbitrator’s award is by an action upon the award. The procedure is to be used only in ‘reasonably clear cases’. . .

Cited by:

Cited – Gazette Media Company Ltd. and Others, Regina (on the Application Of) v Teeside Crown Court CACD 26-Jul-2005
The claimants appealed an order restricting their reporting of a criminal case so as to identify the defendant.
Held: Orders preventing the naming of a defendant in order to protect associated children are unlikely to enhance any child . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Arbitration

Updated: 11 June 2022; Ref: scu.198249

Sparks v The Queen: PC 4 Dec 1963

(Bermuda) A complaint by the alleged victim of a sexual offence is admissible at common law as hearsay only where the complainant gives evidence of the commission of the offence and only for the purpose of showing the consistency of the complainant’s conduct in making the complaint and of the statement or statements made by the complainant at the first reasonable opportunity with the complainant’s evidence in court.
It is trite law that the burden of proof is on the prosecution to establish that statements given were ‘made freely and voluntarily and not under the influence of improper inducement.’
There is no special rule making hearsay admissible in identification cases.

Judges:

Lord Morris of Borth-y-Gest

Citations:

[1964] 1 All ER 727, [1964] 2 WLR 566, [1964] AC 964, [1963] UKPC 33

Links:

Bailii

Cited by:

Cited – Spooner, Eric Charles v Regina; (Evidence: Sex abuse) CACD 25-May-2004
The defendant appealed his convictions for child sex abuse, involving assault, rape and buggery, saying that evidence of a recent complaint by a schoolgirl friend of the complainant which was not consistent with other evidence of the complainant . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Commonwealth

Updated: 11 June 2022; Ref: scu.198133

Berthill Fox v Regina (1): PC 2 Oct 2001

(St Christopher and Nevis) On a trial for murder, the defendant had made an unsworn statement from the dock. The direction from the judge as to its value was challenged on appeal. Though there was some confusion, on balance it was acceptable. As to provocation, the common law still applied in St Kitts, and the board was asked to develop the common law so as to bring it into line with the English statutory equivalent.
Held: The board has no such power. The judge had further been correct in directing the jury as to the issue of self defence. Appeal dismissed.

Judges:

Lord Bingham of Cornhill, Lord Mackay of Clashfern, Lord Hoffmann, Lord Clyde, Lord Scott of Foscote, Lord Hoffmann

Citations:

[2001] UKPC 40

Links:

PC, Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Director of Public Prosecutions v Walker PC 1974
. .
Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Updated: 10 June 2022; Ref: scu.166564

Maharaj v Attorney General of Trinidad and Tobago (No 2): PC 27 Feb 1978

(Trinidad and Tobago) The appellant barrister has been convicted of contempt. The Board had previously found the conviction improper because the basis of the complaint had not been made clear to him. The appellant now sought damages for his imprisonment.
Held: The Board referred to the risks of erroneous judicial decisions: ‘The fundamental human right is not to a legal system that is infallible but to one that is fair’. There was no right of appeal to the Court of Appeal from an order of a judge of the High Court finding a person guilty of contempt of court and ordering him to be punished for it.

Judges:

Diplock, Hailsham of St Marylebone, Salmon, Keith of Kinkell LL

Citations:

[1979] AC 385, [1978] UKPC 3, [1978] 2 All ER 670, [1978] Crim LR 355

Links:

Bailii

Citing:

See also – Maharaj v Attorney General for Trinidad and Tobago PC 11-Oct-1976
A judge of the High Court had committed the barrister appellant to prison for seven days for contempt in the face of the court. The barrister was granted special leave to appeal to the Board against the committal order.
Held: Allowing the . .

Cited by:

Cited – Boodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago PC 1-Apr-2004
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court’s delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial . .
See also – Maharaj v Attorney General for Trinidad and Tobago PC 11-Oct-1976
A judge of the High Court had committed the barrister appellant to prison for seven days for contempt in the face of the court. The barrister was granted special leave to appeal to the Board against the committal order.
Held: Allowing the . .
Cited – The 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contempt of Court, Damages

Updated: 10 June 2022; Ref: scu.195702

Dipcon Engineering Services Ltd v Bowen and Another: PC 1 Apr 2004

PC Grenada ‘Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) notwithstanding that final judgment has been entered, it is certainly not authority for saying that on an appeal against an assessment of damages a previous default judgment can be set aside without any such application ever having been made …’

Judges:

Lord Brown of Eaton-Under-Heywood

Citations:

[2004] UKPC 18, 64 WIR 117

Links:

Bailii, PC

Citing:

Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .

Cited by:

Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 10 June 2022; Ref: scu.195213

Cartwright and Knowles v The Superintendant of Her Majesty’s Prison and The Government of the United States of America: PC 10 Feb 2004

PC (Bahamas) A warrant for extradition had been held to be void, and the prisoners released. It was argued that the US government had no right of appeal.
Held: Section 17(3) of the Court of Appeal Act was applicable. Lord Steyn said that ‘[t]he correct approach is to ask, against the relevant context, what the legal effect of the pronounced decision is.’ He concluded: ‘[The Court of Appeal’s] view [that in substance the judge had been making an order for certiorari] is reinforced by the judge’s conclusion that ‘I find that the orders of committal are void’. The judge was in effect making a declaration that the orders of committal were void. From that decision it followed that the state was no longer entitled to detain the applicants. The judge had based his decision on judicial review. Accordingly there was a right of appeal against the critical order.’
The dissenting minority said: ‘Even if the judge (contrary to his express statement) is to be treated as having made an order of certiorari, we do not see how that helps the applicants. That only means that he made two orders: a deemed order of certiorari and an actual order that habeas corpus should issue. The applicants may have been entitled to appeal against the first. But that does not enable them to set aside the order for release unless they can also appeal against the second.’

Judges:

Lord Steyn, Sir John Roch and Sir Swinton Thomas, Lord Hoffmann and Lord Rodger of Earlsferry dissenting

Citations:

[2004] UKPC 10, [2004] 1 WLR 902

Links:

Bailii, PC, PC, PC

Cited by:

Overruled – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
See Also – Samuel Knowles, Junior v United States of America and Another PC 24-Jul-2006
(The Bahamas) The respondent sought the extradition of the appellant to face drugs charges. The appellant said that if extradited, he would not receive a fair trial, having been declared publicly by the US President to be a drugs ‘kingpin’.
See Also – Knowles and others v Superintendent of HM Prison Fox Hill and others PC 23-Mar-2005
(Bahamas) The claimants resisted requests for their extradition to the US on drugs charges. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Extradition, Litigation Practice

Updated: 10 June 2022; Ref: scu.193877

Rowling v Takaro Properties Ltd: PC 30 Nov 1987

(New Zealand) The minister had been called upon to consent to the issue of shares to a foreign investor. The plaintiff said that the minister’s negligent refusal of consent had led to the collapse of the project and financial losses.
Held: On the facts, even if a duty of care was owed by the minister, in this case he was not in breach of that duty.
The Board noted the importance of judicial review remedies in the context of not granting damages against the mistaken exercise of powers by a Minister, or other public bodies.
The central issue is one of justiciability and the suitability of certain decisions to judicial resolution: ‘Their Lordships . . are well aware of the references in the literature to this distinction (between policy and operation areas) (which appears to have originated in the United States of America), and of the critical analysis to which it has been subjected. They incline to the opinion . . that this distinction does not provide a touchstone of liability, but rather is expressive of the need to exclude altogether those cases in which the decision under attack is of such a kind that a question whether it has been made negligently is unsuitable for judicial resolution, of which notable examples are discretionary decisions on the allocation of scarce resources or the distribution of risks . . ‘.
Lord Keith urged caution in extending the ambit of negligence: ‘The third [matter] is the danger of overkill. It is to be hoped that, as a general rule, imposition of liability for negligence will lead to a higher standard of care in the performance of the relevant type of act; but sometimes not only may this not be so, but the imposition of liability may even lead to harmful consequences. In other words, the cure may be worse than the disease’.

Judges:

Keith, Templeman, Brandon, Mackay, Goff LL

Citations:

[1988] AC 473, [1988] 1 All ER 163, [1987] UKPC 2, [1987] UKPC 34

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Caparo Industries Plc v Dickman and others HL 8-Feb-1990
Limitation of Loss from Negligent Mis-statement
The plaintiffs sought damages from accountants for negligence. They had acquired shares in a target company and, relying upon the published and audited accounts which overstated the company’s earnings, they purchased further shares.
Held: The . .
Cited – Gorringe 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 . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc HL 12-May-1988
The plaintiffs as representatives sought to restrain Amstrad selling equipment with two cassette decks without taking precautions which would reasonably ensure that their copyrights would not be infringed by its users.
Held: Amstrad could only . .
Cited – Welton, Welton v North Cornwall District Council CA 17-Jul-1996
The defendant authority appealed a finding that it was liable in negligence from the conduct of one of its environmental health officers. The plaintiff had set out to refurbish and open a restaurant. He said the officer gave him a list of things he . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence, Judicial Review

Updated: 09 June 2022; Ref: scu.193352

Bishop of Roman Catholic Diocese of Port Louis and Others v Suttyhudeo Tengur and Others: PC 3 Feb 2004

PC (Mauritius) A father challenged the constitutionality of a system where 50% of places in Catholic run secondary schools were allocated to Catholic childen, and fifty per cent according to merit. He feared this would discriminate against his daughter as a Hindu. The Supreme Court upheld his claim, and the Colleges appealed.
Held: The constitution acknowledged the rights to establish church based schools, but also guaranteed against discrimination for religion. The giving of preference to one group of applicants necessarily works to the disadvantage of any group of applicants to whom preference is not given, but differentiation without more is not enough to enable the father to succeed. The differentiation required justification, but no sufficient justification had been put forward. The appeal was dismissed.

Citations:

[2004] UKPC 9

Links:

PC, Bailii, PC, PC

Citing:

Cited – Societe United Docks v Government of Mauritius; Marine Workers Union v Mauritius Marine Authority PC 1985
(Mauritius) Dockworkers and the Ports Authority, submitted their wage dispute to binding arbitration. The award granted a substantial wage increase which the workers then sought to have enforced. The government, brought in legislation allowing the . .
Cited – Matadeen and others v M G C Pointu and others (Mauritius) PC 18-Feb-1998
It is a well recognised canon of construction that domestic legislation, including the Constitution, should if possible be construed so as to conform to international instruments to which the state is party. Lord Hoffmann said: ‘of course persons . .
Cited – Relating to certain aspects of the laws on the use of languages in education in Belgium (Belgian Linguistics) No 2 ECHR 9-Feb-1967
The applicants, parents of more than 800 Francophone children, living in certain (mostly Dutch-speaking) parts of Belgium, complained that their children were denied access to an education in French.
Held: In establishing a system or regime to . .
Cited – Canea Catholic Church v Greece ECHR 16-Dec-1997
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 6-1; Violation of Art. 14; Not necessary to examine Art. 9; Not necessary to examine P1-1; Not necessary to examine Art. 14; Pecuniary damage – . .
Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Education

Updated: 09 June 2022; Ref: scu.192650

Harracksingh v The Attorney General of Trinidad and Tobago and PC Neville Adams: PC 15 Jan 2004

(Trinidad and Tobago) The appellant had succeeded in a claim for damages against the police for false imprisonment and assault. He now appealed a reversal of that decision. The judge had been doubtful as to the value of the police evidence. The Court of Appeal had apparently re-assessed that evidence.
Held: The trial judge had made explicit findings of fact which the appellate court had no standing to alter. The judgment was re-instated. ‘the conduct of the police officers was not merely ‘overzealous’, as Mr Dingemans submitted: it was tortious. Although even upon that assumption he did not formally concede liability for malicious prosecution, it is irresistible. Not only was the prosecution doomed, but charging a person with an offence, which the arresting officer knows he has not committed, necessarily involves a lack of honest belief on the part of the officer, and his motive can only have been improper. ‘

Judges:

Lord Hoffmann Lord Hope of Craighead Lord Scott of Foscote Sir Andrew Leggatt Sir Kenneth Keith

Citations:

[2004] UKPC 3

Links:

Bailii, PC, PC, PC

Citing:

Cited – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – Scammel and Nephew Ltd v Hurley CA 1929
The court considered when a public authority may lose any statutory protection for its acts.
Scrutton LJ said: ‘if illegal acts are really done from some motive other than an honest desire to execute the statutory or other legal duty and an . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice, Police, Torts – Other

Updated: 08 June 2022; Ref: scu.192155

Lalchan Nanan v The State: PC 1986

(Trinidad and Tobago) The Board refused to admit evidence that four members of the jury, including the foreman, were acting under a misapprehension when they agreed to the verdict. However, the Board accepted the possibility that other cases might arise in the future where the presumption against enquiring into activities in the jury room might be rebutted.
The need to protect and preserve the finality of trial by jury as a justification for the exclusionary rule loses its force where the evidence in question does not go to the substance of the jury’s deliberations, but, rather, to demonstrate the disruption of the deliberative process.

Judges:

Lord Goff of Chieveley

Citations:

[1986] AC 860, [1986] UKPC 29, [1986] 83 Cr App R 292, (1986) 83 LSG 1995, [1986] 3 WLR 304, (1986) 83 Cr App R 29, [1986] 3 All ER 248

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Approved – Ras Behari Lal v King-Emperor PC 1933
It was alleged that a juror had been unable to understand sufficient English to follow the trial.
Held: The rule against enquiring into the events in the jury room has an exception where there are external events which may have affected them. . .
Cited – Ellis v Deheer 1922
The court heard an application for a new trial of a civil action which had been tried before a jury on the ground that the verdict as delivered by the foreman was not the verdict of the jury.
Held: A jury’s deliberations cannot be questioned. . .

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Cited – Regina v Tantram; Regina v Bibby etc CACD 24-May-2001
The defendants appealed against their convictions for conspiracy in have combined to put into the human food chain poultry meat which had been condemned as unfit. The jury after retiremen had indicated that they had reached agreement on some . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 08 June 2022; Ref: scu.192256

Ng Chun Pui v Lee Chuen Tat: PC 24 May 1988

There had been a crossover collision on a dual carriageway.
Held: The court considered the doctrine of res ipsa loquitur.
Held: Where a defendant adduces evidence, that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident.
Lord Griffiths said: ‘The judge however was of the view that, despite those findings of fact, because the plaintiffs had originally relied upon the doctrine of res ipsa loquitur, the burden of disproving negligence remained upon the defendants and they had failed to discharge it. In their Lordships’ opinion this shows a misunderstanding of the so-called doctrine of res ipsa loquitur, which is no more than the use of a latin maxim to describe a state of the evidence from which it is proper to draw an inference of negligence. Although it has been said in a number of cases, it is misleading to talk of the burden of proof shifting to the defendant in a res ipsa loquitur situation. The burden of proving negligence rests throughout the case on the plaintiff’ and
‘So in an appropriate case the plaintiff establishes a prima facie case by relying upon the fact of the accident. If the defendant adduces no evidence there is nothing to rebut the inference of negligence and the plaintiff will have proved his case. But if the defendant does adduce evidence that evidence must be evaluated to see if it is still reasonable to draw the inference of negligence from the mere fact of the accident. Loosely speaking this may be referred to as a burden on the defendant to show he was not negligent, but that only means that faced with a prima facie case of negligence the defendant will be found negligent unless he produces evidence that is capable of rebutting the prima facie case.’ and ‘Resort to the burden of proof is a poor way to decide a case; it is the duty of the judge to examine all the evidence at the end of the case and decide whether on the facts he finds to have been proved and on the inferences he is prepared to draw he is satisfied that negligence has been established. In so far as resort is had to the burden of proof the burden remains at the end of the case as it was at the beginning upon the plaintiff to prove that his injury was caused by the negligence of the defendants. Their Lordships adopt the following two passages from the decided cases as most clearly expressing the true meaning and effect of the so-called doctrine of res ipsa loquitur.’

Judges:

Lord Griffiths

Citations:

[1988] SJ 1244, [1988] RTR 298, [1988] UKPC 7

Links:

Bailii, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Scott v The London and St Katherine Docks Co CEC 1865
Requirements to set up Res Ipsa Loquitur
The maxim res ipsa loquitur applies only where circumstances are established which afford reasonable evidence, in the absence of explanation by the defenders, that the accident arose from their negligence. The doctrine of res ipsa loquitur is that: . .

Cited by:

Cited – Smith and Another v Harris PC 30-Oct-2006
(Cayman Islands) The respondent appealed a finding of negligence. She drove a car along a road colliding with three pedestrians, the claimants. The pedestrians said they had been walking in single file in a lay-by off the main carriageway. The . .
Cited – Bingham, Regina (on the Application of) v Director of Public Prosecutions Admn 7-Feb-2003
The defendant appealed by case stated against a conviction for driving a lorry without due care and attention, leading to the death of another road user. There had been an unexplained swing of the rear of his trailer out into the path of the other . .
Lists of cited by and citing cases may be incomplete.

Negligence, Evidence, Commonwealth

Updated: 08 June 2022; Ref: scu.190044

Attorney-General for New South Wales v Perpetual Trustee Co Ltd: PC 14 Mar 1955

(Australia) The Crown could not recover damages for the loss of the services of a police constable as the result of injuries caused by the negligence of a third person. A chief constable was an office held under the Crown, and the usual relationship of master and servant did not apply.
Viscount Simonds said: ”And he is to be regarded as a servant or minister of the King because, as Lord Blackburn said in Coomber v Berks JJ (9 App Cas at p67), the administration of justice, both criminal and civil, and the preservation of order and prevention of crime by means of what is now called police, are amongst the most important functions of government and, by the constitution of this country, these functions do, of common right, belong to the Crown. A constable, then, may be said in a certain context, and sometimes with the appendage ‘or minister’, to be a ‘servant of the Crown”

Judges:

Viscount Simonds

Citations:

[1955] AC 457, [1955] UKPC 6, [1955] 1 All ER 846, [1955] 2 WLR 707

Links:

Bailii

Jurisdiction:

Australia

Cited by:

Cited – Coulter v Chief Constable of Dorset Police ChD 12-Dec-2003
The claimant had failed in an action for damages against the respondent, and had failed to pay the costs award. The respondent issued a statutory demand. He claimed that it was invalid because the chief constable had changed in the interim, and . .
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Employment, Police

Updated: 08 June 2022; Ref: scu.189947

Pratt Contractors Limited v Transit New Zealand: PC 1 Dec 2003

PC (New Zealand) The claimant sought damages arising from the defendant’s management of a bidding process. It had submitted the lowest tender, but that had been rejected. The tender document allowed rejection of the lowest bid.
Held: The findings of fact justify a conclusion that there was a breach of the express or implied terms of the preliminary procedural contract at either of the tender rounds. They also agree with the Court of Appeal that even if there was such a breach in the first round, it would have had no causative effect on Pratt’s failure to obtain the contract.

Judges:

Lord Nicholls of Birkenhead, Lord Slynn of Hadley, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 83

Links:

PC, Bailii

Commonwealth, Contract

Updated: 08 June 2022; Ref: scu.188446

Balkissoon 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 required. The death penalty should no longer be read as mandatory. Legislation since 1976 meant that the court now had a ciscretion to impose imprisonment.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2003] UKHL 78, Times 26-Nov-2003, Gazette 15-Jan-2004, [2004] 2 WLR 652, Gazette 05-Feb-2004

Links:

Bailii, PC

Citing:

Cited – Regina 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 . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited – Reyes 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 . .
Cited – Minister 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 . .
Cited – 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 . .

Cited by:

Cited – Haroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
Overruled – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing, Commonwealth

Updated: 08 June 2022; Ref: scu.188441

Haroon Khan v The State: PC 20 Nov 2003

PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been re-introduced after it had been repealed as a side effect of abolishing the distinction between felonies and misdemeanours. The appellant now argued that the re-introduction of the rule was unconstitutional, as it was inconsistent with the presumption of innocence. ‘The presumption of innocence is perhaps the most fundamental principle underlying the administration of the criminal law. It places on the prosecution, fairly and squarely, the duty of proving guilt. But it does not control the ingredients of the offence which the prosecution must prove to establish guilt.’ The present case fell within that rule, and the new law was not unconstitutional. The appellant’s sentence of death was however overturned under Roodal.

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Millett, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2005] 1 AC 374, [2003] UKPC 79, Times 26-Nov-2003, Gazette 15-Jan-2004

Links:

Bailii, PC

Citing:

Cited – Moses v The State PC 29-Jul-1996
(Trinidad and Tobago) The appellant had been convicted under the felony murder rule, where if a victim dies in the course of the defendant committing a felony, the defendant is guilty of murder.
Held: The distinction between felony and murder . .
Cited – Riel v The Queen PC 1885
A power given to a Parliament to ‘make laws for the peace, order and good government’ is ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to’ . .
Cited – Ibralebbe v The Queen PC 1964
(Grenada) In an appeal from the Court of Appeal of Grenada, the Judicial Committee of the Privy Council forms part of the Grenadian judicial system. Section 53 of the constitution which empowered Parliament to ‘make laws for the peace, order and . .
Cited – Darrin Roger Thomas and Haniff Hilaire v Cipriani Baptiste PC 17-Mar-1999
(Trinidad and Tobago) If the reason for delay in executing a prisoner was the slowness of bodies with whom appeals had been undertaken, that delay itself was not to be considered a good reason for preventing the execution. A delay period above 18m . .
Cited – Lewis, 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, . .
Cited – Balkissoon 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 . .

Cited by:

Cited – Her Majesty’s Attorney General for Gibraltar v Shimidzu (Berllaque, Intervenor) PC 28-Jun-2005
(Gibraltar) The appellants sought to argue that the failure to allow an acquitted defendant any possible order for costs was a breach of the Constitution.
Held: Section 8 of the Constitution, like its analogue article 6 of the European . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Constitutional

Updated: 08 June 2022; Ref: scu.188442

Mukta Gokaldas Hindocha (widow of C S Gheewala) and Others v Mahesh Shamjibhal Juthabhai Gheewala and Others: PC 20 Nov 2003

PC (Jersey) The defendant sought a stay of the action, arguing it should be heard in another jurisdiction. He wanted the estate to be administered in Kenya, a jurisdiction which would apply Hindu laws of coparceny, but the substantial asset was in Jersey.
Held: The Royal Court was right in its view that Kenya is clearly a more appropriate forum than Jersey for the trial of Mahesh’s action, and that no compelling reason has been made out for rejecting Kenya on the ground that Mahesh (or any other party) cannot expect to obtain justice there.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Sir William Aldous

Citations:

[2003] UKHL 77

Links:

Bailii, PC

Citing:

Cited – Spiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Cited – Lubbe (Suing As Administrator Of The Estate Of Rachel Jacoba Lubbe) and 4 Others v Cape plc and Related Appeals HL 22-Jun-2000
South African asbestosis victims suing in England submitted that to stay their proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non-Convention ground that, because of the lack of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Wills and Probate

Updated: 08 June 2022; Ref: scu.188440

Alexander Benedetto v The Queen (No and William Labrador v The Queen (No 2): PC 20 Oct 2003

PC British Virgin Islands

Citations:

[2003] UKPC 70, [2004] 1 WLR 500

Links:

PC, Bailii, PC

Jurisdiction:

Commonwealth

Citing:

See Also – Alexander Benedetto v The Queen and William Labrador v The Queen PC 7-Apr-2003
PC (British Virgin Islands) The appellants challenged their convictions for murder which had been based upon alleged confessions to a fellow inmate also awaiting trial.
Held: The court must be particularly . .

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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 08 June 2022; Ref: scu.187100

Eshugbayi Eleko v Office Administering the Government of Nigeria: HL 24 Mar 1931

The claimant sought a writ of habeas corpus.
Held: Lord Atkin said that in a habeas corpus case, ‘no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality of his action before a court of justice. And it is the tradition of British justice that judges should not shrink from deciding such issues in the face of the executive.’

Judges:

Lord Atkin

Citations:

[1931] AC 662, [1931] UKPC 37, [1931] All ER 44

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Boddington 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 . .
Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – TF, Regina (on the Application of) v Secretary of State for Justice CA 18-Dec-2008
The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with . .
Cited – Dodsworth v Crown Prosecution Service Admn 8-Nov-2010
The defendant effectively sought to appeal against his conviction on his own guilty plea to possession of wild bird eggs. They had been collected before possession itself was made an offence, and he had received them before the 2004 Act, after which . .
Lists of cited by and citing cases may be incomplete.

Administrative, Commonwealth

Updated: 08 June 2022; Ref: scu.187081

Hunter, Moodie v The Queen: PC 8 Oct 2003

PC (Jamaica) The defendants appealed against their convictions for capital murder.
Held: The appeals were allowed, and non-capital convictions substituted. It is not enough to comply with section 2(2), for the judge to give directions to the jury about the law of joint enterprise and as to whether the murder was committed in the circumstances which make it capital murder as set out in subsection (1). The jury must, of course, be invited in a case of that kind to reach a separate verdict for each defendant on the question whether he is guilty of murder. But it must also be made clear to the jury that a separate verdict is required against each defendant as to whether the murder which he committed was capital murder as defined by the statute.

Judges:

Lord Bingham of Cornhill, Lord Hope of Craighead, Lord Clyde, Lord Hutton, Lord Millett

Citations:

[2003] UKPC 69

Links:

PC, Bailii

Statutes:

Offences against the Person Act 1864 2(2)

Citing:

Cited – Daley v The Queen PC 8-Dec-1997
(Jamaica) Whether murder was a capital murder under Jamaican legislation. The board explained the effect of s2(2) of the Act. Where two or more persons are found guilty of any of the categories of murder referred to in subsection (1) – except that . .
Cited – Alexander Von Starck v The Queen PC 28-Feb-2000
(Jamaica) The defendant had fatally stabbed a woman. On arrest, he admitted killing her and that he had the knife which he had used to do so. He gave the police officer a pouch containing a knife, on which blood of the same group as that of the . .
Cited – Regina v Maxwell HL 1990
The defendant had hired two men to enter his former partner’s house to commit robbery. It was his defence that he did not contemplate violence, and that he was only guilty of the offence of burglary. The prosecution would not add a count of burglary . .

Cited by:

Cited – Coutts, Regina v CACD 21-Jan-2005
The defendant appealed his conviction for murder, saying that the judge should have left to the jury the alternative conviction for manslaughter. The victim had died through strangulation during a sexual assault by the defendant. He said it had not . .
Cited – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 08 June 2022; Ref: scu.186815

Jones v Skelton: PC 1963

(New South Wales) Lord Morris of Borth-y-Gest discussed how words subject to a claim in defamation should be read: ‘In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation.’
As to the width of the concept of ‘natural and ordinary meaning’, he said: ‘The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v. Daily Telegraph Ltd . . The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words.’

Judges:

Lord Morris of Borth-y-Gest, Viscont Radcliffe, Lord Jenkins, Lord Gest, Sir kenneth Gresson

Citations:

[1963] 1 WLR 1362, [1963] 3 All ER 952, [1963] UKPC 29

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Branson v Snowden; Branson v Gtech UK Corporation (a Body Corporate) and Rendine CA 3-Jul-1997
The respective parties had been preparing competing bids for the National Lottery. One (Branson) alleged that the other had offerered a bribe. The other responded that the allegation was a lie, and each sued the other for defamation.
Held: The . .
Cited – Associated Newspapers Ltd v Burstein CA 22-Jun-2007
The newspaper appealed an award of damages for defamation after its theatre critic’s review of an opera written by the claimant. The author said the article made him appear to sympathise with terrorism.
Held: The appeal succeeded. Keene LJ . .
Cited – Ajinomoto Sweeteners Europe Sas v Asda Stores Ltd QBD 15-Jul-2009
The claimant said that the defendant’s characterisation of its own products as ‘Good for You’ by reference to a description saying that it did not include the claimant’s product as a component, was a malicious falsehood. The defendant sold other . .
Cited – McAlpine v Bercow QBD 24-May-2013
The claimant alleged defamation in a tweet by the defendant. The court now decided as a preliminary point, the meaning of the words: ‘Why is Lord McAlpine trending? *Innocent face*’. There had been other but widespread (mistaken) allegations against . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth

Updated: 08 June 2022; Ref: scu.185963

Grace Shipping v CF Sharp and Co (Malaya) Pte Ltd: PC 10 Dec 1986

(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord Goff of Chievely discussed the fact finding task of a judge: ‘And it is not to be forgotten that, in the present case, the Judge was faced with the task of assessing the evidence of witnesses about telephone conversations which had taken place over five years before. In such a case, memories may very well be unreliable; and it is of crucial importance for the Judge to have regard to the contemporary documents and to the overall probabilities. In this connection, their Lordships wish to endorse a passage from a judgment of one of their number in Armagas Ltd v. Mundogas S.A. (The Ocean Frost), [1985] 1 Lloyd’s Rep. 1, when he said at p. 57:- ‘Speaking from my own experience, I have found it essential in cases of fraud, when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents in the case, and also to pay particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence such as there was in the present case, reference to the objective facts and documents, to the witnesses’ motives, and to the overall probabilities, can be of very great assistance to a Judge in ascertaining the truth.’
That observation is, in their Lordships’ opinion, equally apposite in a case where the evidence of the witnesses is likely to be unreliable; and it is to be remembered that in commercial cases, such as the present, there is usually a substantial body of contemporary documentary evidence.’
In that context he was impressed by a witness described in the following terms: ‘Although like the other main witnesses his evidence was a mixture of reconstruction and original recollection, he took considerable trouble to distinguish precisely between the two, to an extent which I found convincing and reliable.’ That is so important, and so infrequently done.’

Judges:

Lord Goff of Chievely

Citations:

[1987] 1 Lloyd’s Rep 207, [1986] UKPC 57

Links:

Bailii

Citing:

Adopted – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) CA 1985
Proof of corruption not needed for bribe
In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the . .

Cited by:

Cited – Nina Naicker Gow v Dr Rosemary Harker CA 31-Jul-2003
The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing . .
Cited – Six Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
Cited – Earles v Barclays Bank plc Merc 8-Oct-2009
earles_barclaysQBD2009
The claimant had lost his claim against the bank, but resisted the amount of costs claimed.
Held: The trial had been of a simple factual dispute, and the bank had failed adequately to disclose electronically held material in its possession. . .
Cited – Piper v Hales QBD 18-Jan-2013
The claimant owned a very vauable vintage Porsche racing car. It was hired to the defendant. The car suffered severe mechanical damage whilst being driven, and the insurers declined liability.
Held: The Defendant as hirer was under an . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Commonwealth

Updated: 07 June 2022; Ref: scu.185263

Bank of New Zealand v Board of Management of the Bank of New Zealand Officers’ Provident Association: PC 14 Jul 2003

PC (New Zealand) The defendant operated a superannuation scheme for and on behalf of the officers of the bank it regulated. The trustees ought to amend the scheme, but it had been set up by statute.
Held: When assessing such amendments to see whether they remained within the purposes of the original scheme as set up, the court was not limited to express statements made in the founding documents.

Judges:

Lord Hoffmann, Lord Hobhouse of Woodborough, Lord Millett, Lord Walker of Gestingthorpe, Sir Andrew Leggatt

Citations:

[2003] UKHL 58

Links:

Bailii, PC

Citing:

Cited – In re Courage Group’s Pension Schemes Ryan v Imperial Brewing and Leisure Ltd ChD 1987
It was possible to amend the provisions of a pension scheme provided the amendments did not conflict with the purposes of the scheme. How was a court to identify such purposes: ‘It is trite law that a power can be exercised only for the purpose for . .
Cited – Mettoy Pension Trustees v Evans ChD 1990
Where a trustee acts under a discretion given to him by the terms of the trust the court will interfere with his action if it is clear that he would not have so acted as he did had he not failed to take into account considerations which he ought to . .
Cited – In re Locker’s Settlement Meachem v Sachs 1977
The court considered how the trustees of a pension scheme could appropriate different parts of the funds as between long standing and new classes of members.
Held: Objects (that is, those who had only recently qualified as beneficiaries) could . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 07 June 2022; Ref: scu.184658

Waikato Regional Airport Ltd and others v Attorney General: PC 30 Jun 2003

PC New Zealand

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 50

Links:

PC, Bailii, PC

Cited by:

Cited – Hemming (T/A Simply Pleasure Ltd) and Others v Westminster City Council Admn 16-May-2012
The applicant had sought a license for a sex establishment. He paid the (substantial) fee, but complained that the Council had not as required, resolved to set the fee, and that in any event, the sum did not reflect the cost of administering the . .
Cited – Hemming (T/A Simply Pleasure Ltd) and Others, Regina (on The Application of) v The Lord Mayor and Citizens of Westminster CA 24-May-2013
The claimant had submitted an application for a licence to operate a sex shop. On its failure it sought repayment of that part of the fee which related to the costs of supervising the system, rather than the costs of dealing with the application. It . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Local Government

Updated: 07 June 2022; Ref: scu.184504

Channel Islands Knitwear Company Limited v Hotchkiss: PC 16 Jun 2003

PC (Jersey) The claimant sought damages for personal injuries in the form of a neck strain acquired by working long hours for her employer. Negligence was admitted, but both parties appealed.
Held: There was no sufficient evidence that the substantial injury which followed her ceasing to work for the defendant was caused by the neglect. The company remained liable for the injury to the extent they admitted.

Judges:

Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe, The Rt. Hon. Justice Tipping

Citations:

[2003] UKPC 45

Links:

Bailii, PC, PC

Commonwealth, Personal Injury, Damages

Updated: 07 June 2022; Ref: scu.183885

Jones v Her Majesty’s Attorney-General sued on behalf of New Zealand Police: PC 19 Jun 2003

PC (New Zealand) The claimant was stopped driving his son to the airport. He drove off, but was stopped again. He complained at the constable’s conduct. His claim was struck out. He had been stopped under road traffic legislation, but this was not available for non-traffic purposes.
Held: There were disputes as to the exact circumstances in which the constable had stopped the car, but a plaintiff’s claim should not be dismissed without trial save under the clearest of circumstances indicating that the claim would fail. That had not been shown here. Appeal allowed.

Judges:

Lord Bingham of Cornhill, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote, Lord Rodger of Earlsferry

Citations:

[2003] UKPC 48

Links:

Bailii, PC

Commonwealth, Police, Litigation Practice

Updated: 07 June 2022; Ref: scu.183888