Category: Commonwealth

Thompson v Bankstown Municipal Corporation: 1953

(Australia) Occupier’s duty of care to a person to whom he already has a neighbour relationship.

Citations:

(1953) 87 CLR 619

Cited by:

Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Negligence, Land, Commonwealth

Updated: 29 April 2022; Ref: scu.183020

McCarthy v Wellington City: 1966

A person storing dangerous explosives on his premises owed a duty of care to keep them secure to all persons foreseeably likely to be injured as a result of a breach of that duty.

Citations:

[1966] NZLR 481

Cited by:

Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Land, Negligence

Updated: 29 April 2022; Ref: scu.182863

Beck v Montana Constructions Pty Ltd: 1964

(New South Wales)

Citations:

[1964-5] NSWR 229

Cited by:

Approved – Blair v Osborne and Tomkins and Another CA 12-Nov-1970
Two neighbours engaged an architect to draw up plans for a building at the rear of their houses. He charged them the full RIBA rate for the plans. They did not ask the architect to build the house or supervise the project but handed the plans to a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 29 April 2022; Ref: scu.182989

Taylor v Attorney-General: 1975

(New Zealand – Court of Appeal) A court has power to make an explicit order directed to and binding on the public ipso jure as to what might lawfully be published outside the courtroom in relation to proceedings held before it.

Citations:

[1975] 2 NZLR 675

Cited by:

Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Contempt of Court

Updated: 29 April 2022; Ref: scu.182811

Fernando v Sri Lanka Broadcasting Corporation: 1996

(Sri Lanka) Broadcasts were planned including discussion by experts and listeners. Mr Fernando had participated in these discussions. After criticisms of the government the service came to an end and the broadcasts included little listener participation. Art 14 of the Constitution gave every citizen the freedom of speech and expression including publication’. The Supreme Court of Sri Lanka rejected the contention that the right to freedom of information simpliciter is included in the right to freedom of speech and expression. The right to receive information was in Article 10 of the Constitution that ‘every person is entitled to freedom of thought’ which was the corollary of freedom of speech.
Held: The freedom of speech of the petitioner, qua participatory listener, was infringed, because the stoppage of the NFEP prevented his participation. He was in the same position as the contributor of a column in Visuvalingam and the plaintiff in Lamont.

Judges:

Fernando J

Citations:

(1996) 1 BHRC 104

Cited by:

Cited – Benjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-Feb-2001
PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Media

Updated: 29 April 2022; Ref: scu.182066

Jaensch v Coffey: 20 Aug 1984

(High Court of Australia) The claimant’s husband was injured. She saw his injuries at hospital and was affected. She claimed damages for her own shock.
Held: The driver owed her a duty of care, and was liable for negligence which caused nervous shock. A finding at first instance that she had normal fortitude, her predisposition to anxiety and depression gave no defence.
Brennan J said: ‘Liability for negligence occasioning nervous shock has not been readily accepted, perhaps because the courts found evidence of psychiatric illness and of its aetiology to be too vague to warrant a finding of a causal relationship between psychiatric illness and careless conduct . . A plaintiff may recover only if the psychiatric illness is the result of physical injury negligently inflicted on him by the defendant or if it is induced by ‘shock’. Psychiatric illness caused in other ways attracts no damages . . I understand ‘shock’ in this context to mean the sudden sensory perception – that is, by seeing, hearing or touching – of a person, thing or event, which is so distressing that the perception of the phenomenon affronts or insults the plaintiff’s mind and causes a recognizable psychiatric illness.’

Judges:

Gibbs CJ, Murphy, Brennan, Deane and Dawson JJ

Citations:

(1984) 55 CLR 549, [1984] 54 ALR 417, [1985] CLY 2326, [1984] HCA 52

Links:

Austlii

Citing:

Cited – McLoughlin v O’Brian HL 6-May-1982
The plaintiff was the mother of a child who died in an horrific accident, in which her husband and two other children were also injured. She was at home at the time of the accident, but went to the hospital immediately when she had heard what had . .

Cited by:

Cited – Alcock and Others v Chief Constable of South Yorkshire Police HL 28-Nov-1991
The plaintiffs sought damages for nervous shock. They had watched on television, as their relatives and friends, 96 in all, died at a football match, for the safety of which the defendants were responsible. The defendant police service had not . .
Cited – Alcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
Cited – Taylor v A Novo (UK) Ltd CA 18-Mar-2013
The deceased had suffered a head injury at work from the defendant’s admitted negligence. She had been making a good recovery but then collapsed and died at home from pulmonary emboli, and thrombosis which were a consequence of the injury. The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Negligence, Personal Injury

Updated: 28 April 2022; Ref: scu.180106

Michael Adams and Frederick Lawrence v Regina: PC 18 Mar 2002

PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence.
Held: The trial judge had heard a plea of no case to answer before the jury. This was incorrect. The court of appeal had applied the proviso to maintain the convictions, and an appellate court should be careful before overturning such a decision, but the Board could not say that the defendants would inevitably have been convicted. The convictions were overturned.

Citations:

(Appeal No 14 of 2001)

Links:

PC

Citing:

Cited – Rupert Crosdale v The Queen PC 6-Apr-1995
(Jamaica) A court’s insistence that a submission of no case to answer must be made in the presence of jury was unfair. When considering submissions of no case to answer, the judge should invite the jury to retire and, if he decided to reject the . .
Cited – Mitchell v The Queen PC 24-Jan-1998
(Bahamas) The judge’s decision on a voire dire to determine the admissibility of a confession should not be revealed to the jury since it might cause unfair prejudice to the defendant by conveying the impression that the judge had reached a . .
Cited – Stirland v Director of Public Prosecutions HL 1944
The House considered what was the appropriate test for allowing a conviction to stand despite the finding of an irregularity in the trial.
Held: The House must be satisfied that there was ‘a situation a reasonable jury, after being properly . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 28 April 2022; Ref: scu.168105

In re Straw Products Pty Ltd: 1942

The court considered the requirement on a partner to retire under a ‘just and reasonable’ provision: ‘All that Hinds has done in the past in exercise of his control has been within his legal powers. The question is whether he has used those powers in such a way as to make it just and equitable that Robertson should be allowed by the court to retire from the partnership. The analogy of a partnership seems to me to clarify discussion.’

Judges:

Mann CJ

Citations:

[1942] VLR 222

Cited by:

Approved – Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Company

Updated: 28 April 2022; Ref: scu.182290

Regina v Whitehouse: 1941

(British Columbia) The court asked when a party to a joint enterprise may claim to have abandoned or withdrawn from that enterprise ‘Can it be said on the facts of this case that a mere change of mental intention and a quitting of the scene of the crime just immediately prior to the striking of the fatal blow will absolve those who participate in the commission of the crime by overt acts up to that moment from all the consequences of its accomplishment by the one who strikes in ignorance of his companion’s change of heart? I think not. After a crime has been committed and before a prior abandonment of the common enterprise may be found by a jury there must be, in my view, in the absence of exceptional circumstances, something more than a mere mental change of intention and physical change of place by those associates who wish to dissociate themselves from the consequences attendant upon their willing assistance up to the moment of the actual commission of that crime. I would not attempt to define too closely what must be done in criminal matters involving participation in a common unlawful purpose to break the chain of causation and responsibility. That must depend upon the circumstances of each case but it seems to me that one essential element ought to be established in a case of this kind: where practicable and reasonable there must be timely communication of the intention to abandon the common purpose from those who wish to dissociate themselves from the contemplated crime to those who desire to continue in it. What is ‘timely communication’ must be determined by the facts of each case but where practicable and reasonable it ought to be such communication, verbal or otherwise, that will serve unequivocal notice upon the other party to the common unlawful cause that if he proceeds upon it he does so without the further aid and assistance of those who withdraw. The unlawful purpose of him who continues alone is then his own and not one in common with those who are no longer parties to it nor liable to its full and final consequences.’

Judges:

Sloan J A

Citations:

[1941] 1 WWR 112, [1941] 1 DLR 683

Citing:

Cited – Rex v Saunders and Archer 1573
Misdirected Poison remained Offence
A intended to kill his wife, and gave her a poisoned apple. She gave it her child who ate the apple and died. The defendant had not intended his daughter to eat the apple.
Held: A was guilty of the murder of his daughter, but his wife, who was . .

Cited by:

Explained – Regina v Mitchell and King CACD 16-Sep-1998
A defendant would sufficiently disassociate himself from a violent joint enterprise by communicating his withdrawal to the co-accused, only when the violent element was not pre-planned. Otherwise it was not sufficient merely to withdraw. . .
Cited – Regina v Derek William Bentley (Deceased) CACD 30-Jul-1998
The defendant had been convicted of murder in 1952, and hung. A court hearing an appeal after many years must apply laws from different eras to different aspects. The law of the offence (of murder) to be applied was that at the time of the offence. . .
Applied – Regina v Becerra and Cooper CACD 1975
The defendants sought leave to appeal against their convictions for a brutal and horrific murder. Becerra suggeste dtat he had wanted to withdraw from the event before the murder took place.
Held: The appeal failed: ‘ in the circumstances then . .
Applied – Regina v Whitefield 1984
The two accused agreed to break into a flat, but before entry was achieved, W said he withdrew. The other burgled the flat with another.
Held: The appeal was allowed. The judge was wrong to tell the jury that communication of his withdrawal to . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 28 April 2022; Ref: scu.181236

Bombay Official Assignee v Shroff: PC 1932

The bankrupt had been a member of the Bombay stock exchange. His share had been forfeit. The trustee claimed the share. The official assignee contended that his members card or the value thereof vested in him as the assignee in the insolvency, because among other reasons, ‘if the effect of the rules be that the proceeds of sale of the insolvent’s card do not enure for the benefit of the general body of his creditors the rules are contrary to the law of insolvency.’
Held: The nature of the constitution of the association as regulated by the deed of association and its rules in the case of a defaulting member who was expelled from the Association, no interest in his card was retained and there was nothing to pass to the assignee.
Lord Blanesburgh said: ‘It being agreed . . that the rules of this association are entirely innocent of any design to evade the law of insolvency, it may be that even these cases, although cases of a company and a partnership, are more favourable to the [association] than to the [official assignee] . . [T]he real answer to this contention of the [official assignee] [is] in the nature and character of the association as they have described it whereby in the case of a defaulting member who is expelled from the association no interest in his card remains in himself, and none can pass to his assignee, whether his expulsion does or does not take place before the commencement of his insolvency.’

Judges:

Lord Blanesburgh

Citations:

(1932) 48 TLR 443 PC

Jurisdiction:

England and Wales

Cited by:

Cited – Money Markets International Stockbrokers Ltd v London Stock Exchange Ltd and Another ChD 10-Jul-2001
MMI were members of the London Stock Exchange, and accordingly held one share in that non-profit making institution. The share was valueless. Anticipating losing their membership and so the share, and also the demutualisation, the share was to be . .
Cited – Belmont Park Investments Pty Ltd v BNY Corporate Trustee Services Ltd and Another SC 27-Jul-2011
Complex financial instruments insured the indebtedness of Lehman Brothers. On that company’s insolvency a claim was made. It was said that provisions in the documents offended the rule against the anti-deprivation rule. The courts below had upheld . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Insolvency, Company

Updated: 28 April 2022; Ref: scu.180973

Nankissoon Boodram v Attorney-General of Trinidad and Tobago: PC 19 Feb 1996

The court considered the effect of prejudicial reporting on a trial: ‘In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge for neutralising them will be insufficient to prevent injustice. The proper forum for a complaint about publicity is the trial court, where the judge can assess the circumstances which exist when the defendant is about to be given in charge of the jury, and decide whether measures such as warnings and directions to the jury, peremptory challenge and challenge for cause will enable the jury to reach its verdict with an unclouded mind, or whether exceptionally a temporary or even permanent stay of the prosecution is the only solution.’

Judges:

Lord Mustill

Citations:

[1996] AC 842, (1996) 47 WIR 459

Jurisdiction:

England and Wales

Cited by:

Cited – Thakur Persad Jaroo v Attorney-General of Trinidad and Tobago PC 4-Feb-2002
(Trinidad and Tobago) The appellant sought a declaration that his constitutional rights had been infringed. He had bought a car. When told it may be stolen, he took it to the police station, but after he heard nothing and it was not returned. He . .
Cited – Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions PC 8-Jun-2004
PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether . .
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 . .
Cited – Noel Heath and Glenroy Matthew v The Government of the United States of America PC 28-Nov-2005
PC (St. Christopher and Nevis) The defendants resisted extradition to the US to face charges relating to importating of unlawful drugs.
Held: There was nothing in the arguments proposed to support an . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth, Media

Updated: 28 April 2022; Ref: scu.180976

Super Industrial Services Ltd and Another v National Gas Company of Trinidad and Tobago Ltd: PC 16 Jul 2018

(Trinidad and Tobago) The Board considered the effect of provisions in Trinidadian law for automatic striking out of claim.

Judges:

Lord Mance, Lord Carnwath, Lord Hughes, Lady Black, Lord Briggs

Citations:

[2018] UKPC 17

Links:

Bailii

Jurisdiction:

Commonwealth

Commonwealth

Updated: 25 April 2022; Ref: scu.619846

Singularis Holdings Ltd v Pricewaterhousecoopers: PC 10 Nov 2014

(Bermuda) Liquidators of two companies sought information from the companies’ former auditors, and in particular their working papers.

Judges:

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins

Citations:

[2014] UKPC 36, [2015] 1 AC 1675, [2015] BCC 66, [2014] WLR(D) 476, [2015] 2 WLR 971, [2014] 2 BCLC 597

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Citing:

See Also – Pricewaterhousecoopers v Saad Investments Company Ltd PC 10-Nov-2014
(Bermuda) The Board was asked as to the interpretation of Bermudan statutes, and whether the the respondents’ auditors had standing to challenge the winding up order in answer to an appliation by the liquidators. . .

Cited by:

Cited – Cartier International Ag and Others v British Telecommunications Plc and Another SC 13-Jun-2018
The respondent ISP companies had been injuncted to stop the transmission of websites which infringed the trade mark rights of the claimants. The ISPs now appealed from the element of the order that they pay the claimants’ costs of implementing the . .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 24 April 2022; Ref: scu.538671

Erikson v Carr: 1945

New South Wales – an individual was alleged to have disentitled himself to commission as a result of a breach of duty.
Held: Though the legal rights of the parties would depend on the jury’s conclusions as to, among other things, ‘whether it was partnership or agency’.
Jordan CJ had observed that ‘if a partner in a subsisting partnership finds that his co-partner has made a secret profit for which he is accountable to the firm, this does not entitle him to rescind the partnership ab initio’ but ‘to require the amount to be brought into the partnership account so that he may receive his proper share of it’, while ‘[i]f a person, acting as agent under a subsisting contract of commission agency, accepts a secret commission in relation to an agency transaction, he must account for it to his principal’ and ‘[o]rdinarily he also forfeits his right to commission’

Judges:

Jordan CJ

Citations:

(1945) 46 SR (NSW) 9

Jurisdiction:

England and Wales

Cited by:

Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Agency

Updated: 12 April 2022; Ref: scu.569931

Regina v Cey: 1989

Saskatchewan Court of Appeal – The defendant was accused of assault committed during the course of a game of ice hockey.
Held: (Majority) The game was very physical, but even so: ‘some forms of bodily contact carry with them such a high risk of injury and such a distinct probability of serious harm as to be beyond what, in fact, the players commonly consent to, or what, in law, they are capable of consenting to.’ (Gerwing JA)
Objective criteria are to be used to determine whether the consent defence can applym, including:
(a) the conditions in which the game was played;
(b) the nature and circumstances of the act;
(c) how much force was used;
(d) the victim’s injury, and
(e) the state of mind of the accused.

Judges:

Gerwing JA, Cameron JA

Citations:

(1989) 48 CCC (3d) 480

Jurisdiction:

Canada

Cited by:

Cited – Regina v Barnes CACD 21-Dec-2004
The defendant appealed against a conviction for inflicting grievous bodily harm, after causing a serious leg injury in a football match when tackling another player.
Held: There was surprisingly little authority on when it was appropriate to . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 12 April 2022; Ref: scu.566847

Dunbee Ltd v Gilman and Co, (Australia) Pty Ltd: 1968

New South Wales Court of Appeal -The court was asked to enforce an English default judgment. The judgment debtor had ‘agree[d] to submit to the jurisdiction’ of the English court by virtue of a contractual provision that the agreement was ‘governed by and construed under the Laws of England’.
Held: Walsh J referred to the division of authority (particularly between Emanuel v Symon and Blohn v Desser) on the question whether a submission could be implied, but said that that need not be decided. If the agreement had to be an express one, it was not essential that a particular form of words should be used: it could mean only that the express terms of the contract, when properly construed, contained an agreement to submit. If an implied agreement sufficed, there was nothing which could lead to the conclusion that, if the agreement was silent on the question, a term could be implied that the judgment debtor had submitted to the jurisdiction. The fact that leave could be given to serve proceedings under RSC Order 11 by virtue of the choice of English law did not amount to a law which ‘govern[ed]’ the contract.

Judges:

Walsh J

Citations:

[1968] 2 Lloyd’s Rep 394, (1968) 70 SR (NSW) 219

Jurisdiction:

England and Wales

Cited by:

Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 12 April 2022; Ref: scu.565130

Premium Real Estate Ltd v Stevens: 6 Mar 2009

Supreme Court of New Zealand – The court was asked as to the forfeiture of remuneration by an agent for breach of fiduciary duty.
Held: In relation to remoteness of damage, it was observed that the question of foreseeability in common law claims was effectively overtaken by the relationships out of which fiduciary duties arose, and that different policy considerations might affect remoteness of damage in cases of breach of fiduciary duty than in common law claims. But the necessity of demonstrating that a loss was caused by the claimed breach of fiduciary duty followed from the compensatory justification for the remedy.
‘The remuneration is forfeited because it has not been earned by good faith performance in relation to a completed transaction. There is no inconsistency in awarding the principal both damages and the refund of the commission, as there would be, for instance, if a court were to order a defendant fiduciary both to pay damages and to account for profits made by the use of the principal’s asset. Remuneration for services is not a profit of this kind. It is something to which an agent has no entitlement once he or she has committed a breach of fiduciary duty save in the circumstances described by Atkin LJ [in Keppel v Wheeler]’.

Judges:

Elias CJ, Blanchard, Tipping, McGrath and Gault JJ

Citations:

[2009] 2 NZLR 384, [2009] NZSC 15, (2009) 9 NZBLC 102

Links:

Nzlii

Jurisdiction:

New Zealand

Cited by:

Cited – AIB Group (UK) Plc v Mark Redler and Co Solicitors SC 5-Nov-2014
Bank not to recover more than its losses
The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .
Cited – Hosking v Marathon Asset Management Llp ChD 5-Oct-2016
Loss of agent’s share for breach within LLP
The court was asked whether the principle that a fiduciary (in particular, an agent) who acts in breach of his fiduciary duties can lose his right to remuneration, is capable of applying to profit share of a partner in a partnership or a member of a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Agency

Updated: 12 April 2022; Ref: scu.554209

Fontin v Katapodis: 10 Dec 1962

(High Court of Australia) The plaintiff struck the defendant with a weapon, a wooden T-square. It broke on his shoulder. The defendant then picked up a sharp piece of glass with which he was working and threw it at the plaintiff, causing him severe injury. The Judge had reduced the damages from andpound;2,850 to andpound;2,000 by reason of the provocation.
Held: Provocation could be used to wipe out the element of exemplary or aggravated damages but could not be used to reduce the actual figure of pecuniary compensation. So they increased the damages to the full andpound;2,850.

Judges:

Sir Owen Dixon CJ, McTiernan, Owen JJ

Citations:

[1962] 108 CLR 177, [1963] ALR 582, 36 ALJR 283, [1962] HCA 63

Links:

Austlii

Jurisdiction:

England and Wales

Cited by:

Approved – Lane v Holloway CA 30-Jun-1967
In the context of a fight with fists, ordinarily neither party has a cause of action for any injury suffered during the fight. But they do not assume ‘the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 12 April 2022; Ref: scu.258462

Red Sea Insurance Co Ltd v Bouygues SA and Others: PC 21 Jul 1994

Lex loci delicti (the law of the jurisdiction in which the act complained of took place) can exceptionally be used when the lex fori (the jurisdiction formally assigned) gives no remedy. In the case of a claim under a foreign tort, the double actionability exception may be applied to allow use of the lex loci delicti. Lord Slynn: ‘Their Lordships, having considered all of these opinions, recognise the conflict which exists between, on the one hand, the desirability of a rule which is certain and clear on the basis of which people can act and lawyers advise and, on the other, the desirability of the courts having the power to avoid injustice by introducing an element of flexibility into the rule. They do not consider that the rejection of the doctrine of the proper law of the tort as part of English law is inconsistent with a measure of flexibility being introduced into the rules. They consider that the majority in Boys v Chaplin [1971] AC 356 recognised the need for such flexibility. They accept that the law of England recognises that a particular issue between the parties to litigation may be governed by the law of the country which, with respect to that issue, has the most significant relationship with the occurrence and with the parties. They agree with the statement of Lord Wilberforce, at pp 391-392, . . as to the extent and application of the exception. They accept, as he did, that the exception will not be successfully invoked in every case or even, probably, in many cases and, at p 391H, that ‘The general rule must apply unless clear and satisfying grounds are shown why it should be departed from and what solution, derived from what other rule, should be preferred.’

Judges:

Lord Slynn

Citations:

Gazette 09-Nov-1994, Ind Summary 26-Sep-1994, Times 21-Jul-1994, [1995] 1 AC 190

Citing:

Cited – Warren v Warren 1972
(Australia) The plaintiff was injured in a car accident while on a visit to New South Wales, where she had no right of action in tort against her husband. She began her action in Queensland, where she was ordinarily resident and domiciled where such . .
Appeal from – Red Sea Insurance Co Ltd v Bouygues SA and Others 1993
Hong Kong . .

Cited by:

Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

International, Commonwealth

Updated: 09 April 2022; Ref: scu.85926

Rees and Others v Crane: PC 30 Mar 1994

(Trinidad and Tobago) A High Court judge complained that he had been unlawfully excluded from the roster of sittings for the following term.
Held: The procedure to suspend judge had to be followed closely. In this case there had been a breach of natural justice. His fundamental right to the protection of the law under paragraph 4(b) of the Constitution, that is the right to the protection of the law, had been violated. The decision to suspend him was contrary to section 137(1) of the Constitution which provided that: ‘A judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause), or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.’ That contravention could not be corrected retrospectively by a later suspension order.

Citations:

Gazette 30-Mar-1994, [1994] 2 AC 173

Cited by:

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, Commonwealth

Updated: 09 April 2022; Ref: scu.85935

Owners of Cargo On K H Enterprise v Owners of Pioneer Container: PC 29 Mar 1994

Owners who were claiming under a bailment must accept the terms of a sub-bailment to which it had agreed. This result is both principled and just. A sub-bailee can only be said for these purposes to have voluntarily taken into his possession the goods of another if he has sufficient notice that a person other than a bailee is interested in the goods so that it can properly be said that (in addition to his duties to the bailee) he has, by taking the goods into his custody, assumed towards that other person the responsibility for the goods which is characteristic of a bailee. This they believe to be the underlying principle.
Where an exclusive jurisdiction clause exists, a party who seeks a stay brought in breach of that agreement to refer disputes to a named forum, will have to show strong cause
Lord Goff asked whether an exclusive jurisdiction clause in a bill of lading issued by a sub-bailee was binding on the cargo owner, and said: ‘Here is a ship, upon which the goods are loaded in a large number of containers; indeed, one container may contain goods belonging to a number of cargo owners. One incident may affect goods owned by several cargo owners, or even (as here) all the cargo owners with goods on board. Common sense and practical convenience combine to demand that all of these claims should be dealt with in one jurisdiction, in accordance with one system of law. If this cannot be achieved, there may be chaos. Much expense may be wasted on litigation in a number of different jurisdictions, as indeed happened in the present case, where there was litigation in eight other countries as well as Hong Kong and Taiwan. There is however no international regime designed to produce a uniformity of jurisdiction and governing law in the case of a multiplicity of claims of this kind. It is scarcely surprising therefore that shipowners seek to achieve uniformity of treatment in respect of all such claims, by clauses designed to impose an exclusive jurisdiction and an agreed governing law . . Within reason, such an attempt must be regarded with a considerable degree of sympathy and understanding . . Their Lordships do not consider that it can possibly be said that the incorporation of such a clause in a bill of lading is per se unreasonable.’

Judges:

Lord Goff

Citations:

Times 29-Mar-1994, Gazette 11-May-1994, [1994] 2 AC 324

Cited by:

Cited – Scottish and Newcastle International Limited v Othon Ghalanos Ltd HL 20-Feb-2008
The defendant challenged a decision that the English court had jurisdiction to hear a claim in contract saying that the appropriate court was in Cyprus. The cargo was taken by ship from Liverpool to Limassol. An English court would only have . .
Cited – Angara Maritime Ltd v Oceanconnect UK Ltd and Another QBD 29-Mar-2010
The court was asked as to the application of Section 25(1) of the Sale of Goods Act 1979 when an unpaid supplier of bunkers to a time charterer claims against the owner of the vessel.
Held: The issue was whether as a matter of fact there was a . .
Lists of cited by and citing cases may be incomplete.

Transport, Commonwealth, Contract, Agency

Updated: 09 April 2022; Ref: scu.84505

Mills and Others v The Queen: PC 1 Mar 1995

A judge’s identification direction need not always warn on the need for witnesses to be convincing. An unsworn statement from a defendant is significantly inferior to oral evidence.

Citations:

Times 01-Mar-1995, [1995] 1 WLR 511

Cited by:

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 – Anderson v HM Advocate HCJ 1996
The court considered the effect on a conviction of a failure by defence counsel. After considering the authorities: ‘It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That . .
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 . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Evidence, Commonwealth

Updated: 09 April 2022; Ref: scu.83731

Lobban v The Queen: PC 28 Apr 1995

(Jamaica) The judge had no discretion to exclude evidence on request of co-defendant in joint trial. The exculpatory part of co-accused statement not to be excluded since it was his right to have it put in. Those who are charged with an offence allegedly committed in a joint criminal enterprise should generally be tried in a joint trial.

Citations:

Gazette 01-Jun-1995, Times 28-Apr-1995, [1995] 1 WLR 877

Cited by:

Cited – Regina v Randall HL 18-Dec-2003
Two defendants accused of murder each sought to place blame for the victim’s death on the other. One sought to rely upon the other’s record of violence as evidence of his co-accused’s propensity to violence.
Held: The record was admissible. By . .
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. . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Commonwealth

Updated: 09 April 2022; Ref: scu.83125

Logan v The Queen: PC 8 Mar 1996

(Belize) The Privy Council may hear an appeal against the death sentence after a mercy plea had been rejected under the Belize criminal Code.

Citations:

Times 08-Mar-1996

Cited by:

Cited – Williams v The Queen PC 23-Nov-1998
(Saint Vincent and the Grenadines) The defendant was convicted of having killed his wife. He had killed his children but faced no charge on that issue. He complained of the admission of evidence showing that he had killed the children. In his . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Commonwealth

Updated: 09 April 2022; Ref: scu.83150

Kunnath v the State: PC 30 Jul 1993

The requirement that a trial must take place in the presence of the defendant is not limited to physical presence, but also requires a defendant to have available as necessary adequate interpretation. Unless he understood what was going on, he could not be said to have had a fair trial. It is the judge’s duty to ensure effective use of an interpreter. The defendant had made it clear that he had not understood the proceedings, but the Judge had continued. The conviction was quashed.

Citations:

Times 30-Jul-1993, Gazette 13-Oct-1993

Criminal Practice, Human Rights, Commonwealth

Updated: 09 April 2022; Ref: scu.82856

Kempe and Another v Ambassador Insurance Company (In Liquidation) (Bermuda): PC 3 Jan 1997

A scheme of arrangement though approved by the court was not itself a court order and could not be extended by the court.

Citations:

Times 03-Jan-1997

Cited by:

See Also – Kempe Jr and others v Ambassador Insurance Company PC 19-Nov-1997
(Bermuda) . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Commonwealth

Updated: 09 April 2022; Ref: scu.82723

Jones and Others v Attorney General of the Commonwealth of the Bahamas: PC 24 May 1995

The death penalty was properly imposed for murder since it was a requirement of the constitution.

Citations:

Gazette 24-May-1995, [1995] 1 WLR 891

Cited by:

Cited – Trevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Commonwealth

Updated: 09 April 2022; Ref: scu.82595

Gatherer v Gomez: PC 22 Jul 1992

(Barbados) The 1911 Act provided for the appointment of clergy, but did not envisage compulsory retirement. Clergy are public offcers within the 1947 Act, which did provide for retirement at the age of 60, but the Anglican Church in Barbados was disestablished in 1969, and the 1947 Act no longer applied. New regul;ations were made providing (inter alia) again for retirement, but these were not published in the Official Gazette as was required by the Interpretation Act.
Held: No obligation to retire was created because the regulations had not been properly published.

Citations:

Gazette 22-Jul-1992, [1992] CLY 1812, [1992] 1 WLR 727

Statutes:

Anglican Church Act 1911

Ecclesiastical, Commonwealth

Updated: 08 April 2022; Ref: scu.80767

Freemantle v The Queen: PC 7 Jul 1994

The judge’s warning to the jury about its dangers is needed, when the jury were being asked to consider uncorroborated visual identification evidence, unless, and exceptionally, the evidence is of such good quality as to stand without a warning. In this case though, although the direction was defective, the two eye witnesses had known the defendant for several years.

Citations:

Ind Summary 29-Aug-1994, Gazette 12-Oct-1994, Times 07-Jul-1994, [1994] 1 WLR 1437

Cited by:

Cited – Bertrand Roberts and Roland Roberts v The State PC 15-Jan-2003
PC (Trinidad and Tobago) The appellants had been convicted of murder and their capital sentences commuted. They now sought to challenge the convictions as to the admission of and directions given on the . .
Lists of cited by and citing cases may be incomplete.

Evidence, Criminal Practice, Commonwealth

Updated: 08 April 2022; Ref: scu.80681

Harley Development Inc. And, Trillium Investment Ltd v Commissioner of Inland Revenue Co: PC 14 Mar 1996

Hong Kong – ‘Their Lordships consider that, where a statute lays down a comprehensive system of appeals procedure against administrative decisions, it will only be in exceptional circumstances, typically an abuse of power, that the courts will entertain an application for judicial review of a decision which has not been appealed.’

Citations:

[1996] UKPC 67, [1996] 1 WLR 727

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – ABC Ltd and Another v HM Revenue and Customs CA 7-Jul-2017
Temporary approval pending appeal was preferred
The company challenged refusal of fit and proper approval for registration as wholesaler of duty paid alcohol.
Held: The appeals were allowed in part. HMRC, having once concluded that the applicant was not fit and proper was not free to . .
Cited – OWD Ltd (T/A Birmingham Cash and Carry) and Another v Revenue and Customs SC 19-Jun-2019
The wholesalers sought approval from the respondent for the wholesale supply of duty-paid alcohol. Approval was refused, but the parties sought a means of allowing a temporary approval pending determination by the FTT. The two questions considered . .
Lists of cited by and citing cases may be incomplete.

Taxes – Other

Updated: 08 April 2022; Ref: scu.442125

Opua Ferries Ltd and Another v Fullers Bay of Islands Ltd: PC 5 Mar 2003

PC (New Zealand) The Board was asked whether whether the effect of the registration of the repondent as licencees to provide ferry services permitted them to operate the ferry service with two vessels or with one vessel only.
Held: The appeal failed. There was insufficient in the words of the licence to justify a conclusion that only one vessel was to be used.

Judges:

Lord Hope of Craighead, Lord Slynn of Hadley, Lord Hobhouse of Woodborough, Lord Millett, Lord Scott of Foscote

Citations:

[2003] UKPC 19

Links:

PC, Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Slough Estates Ltd v Slough Borough Council HL 1971
Extrinsic evidence may be used to identify a thing or place referred to in a public document. Lord Reid said however that this was different from using evidence of facts known to the maker of the document but which are not common knowledge to alter . .
Cited – Investors Compensation Scheme Ltd v West Bromwich Building Society HL 19-Jun-1997
Account taken of circumstances wihout ambiguity
The respondent gave advice on home income plans. The individual claimants had assigned their initial claims to the scheme, but later sought also to have their mortgages in favour of the respondent set aside.
Held: Investors having once . .
Lists of cited by and citing cases may be incomplete.

Licensing, Transport

Updated: 08 April 2022; Ref: scu.179690

Perka v The Queen: 1984

(Canada) The court analysed the defence of necessity. The concept of necessity is used as an excuse for conduct which would otherwise be criminal. The defence arose where, realistically, the individual had no choice, where the action was ‘remorselessly compelled by normal human instincts’, and, per Dickson J: ‘I agree with this formulation of the rationale for excuses in the criminal law. In my view this rationale extends beyond specific codified excuses and embraces the residual excuse known as the defence of necessity. At the heart of this defence is the perceived injustice of punishing violations of (Canada) The law in circumstances in which the person had no other viable or reasonable choice available; the act was wrong but it is excused because it was realistically unavoidable.’ The involuntariness of the actor’s conduct ‘is measured on the basis of society’s expectation of appropriate and normal resistance to pressure’ and ‘If the defence of necessity is to form a valid and consistent part of our criminal law it must, as has been universally recognised, be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.’
Wilson J said: ‘The ethical considerations of the ‘charitable and the good’ must be kept analytically distinct from duties imposed by law. Accordingly, where necessity is invoked as a justification for violation of the law, the justification must, in my view, be restricted to situations where the accused’s act constitutes the discharge of a duty recognised by law. The justification is not, however, established simply by showing a conflict of legal duties. The rule of proportionality is central to the evaluation of a justification premised on two conflicting duties since the defence rests on the rightfulness of the accused’s choice of one over the other.’

Judges:

Dickson J, Wilson J

Citations:

[1984] 2 SCR 232, 13 DLR (4th) 1

Jurisdiction:

Canada

Cited by:

Cited – In Re A (Minors) (Conjoined Twins: Medical Treatment); aka In re A (Children) (Conjoined Twins: Surgical Separation) CA 22-Sep-2000
Twins were conjoined (Siamese). Medically, both could not survive, and one was dependent upon the vital organs of the other. Doctors applied for permission to separate the twins which would be followed by the inevitable death of one of them. The . .
Cited – Hasan, Regina v HL 17-Mar-2005
The House was asked two questions: the meaning of ‘confession’ for the purposes of section 76(1) of the 1984 Act, and as to the defence of duress. The defendant had been involved in burglary, being told his family would be harmed if he refused. The . .
Cited – Quayle and others v Regina, Attorney General’s Reference (No. 2 of 2004) CACD 27-May-2005
Each defendant appealed against convictions associated variously with the cultivation or possession of cannabis resin. They sought to plead medical necessity. There had been medical recommendations to move cannabis to the list of drugs which might . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 01 April 2022; Ref: scu.213655

Hurnam v The Attorney General and Others: PC 30 Oct 2017

(Supreme Court of Mauritius) The appellant had sought to appeal his case to the Supreme Court of Mauritius, but it was rejected as not having been signed endorsed by an attorney.
Held: The appeal failed.

Judges:

Lord Mance, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2017] UKPC 33

Links:

Bailii

Jurisdiction:

Commonwealth

Commonwealth

Updated: 01 April 2022; Ref: scu.598623

E D Sassoon and Co v Western Assurance Co: PC 1912

(Shanghai) A cargo of opium was damaged as a result of ingress of water through a rotten hull.
Held: Losses occasioned by the incursion of water into a vessel’s hull owing to the defective, deteriorated or decayed condition of the hull or ordinary wear and tear are not losses caused by ‘perils of the seas’
‘The learned judge held that the damage was not due to a sea peril at all, but was solely due to the weakness of the hulk, and he thereupon dismissed the action. Their Lordships are of opinion that the learned judge was right. There was no weather, nor any other fortuitous circumstance, contributing to the incursion of the water; the water merely gravitated by its own weight through the opening in the decayed wood and so damaged the opium. It would be an abuse of language to describe this is a loss due to perils of the sea.’

Citations:

[1912] AC 561

Jurisdiction:

England and Wales

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.

Insurance, Commonwealth

Updated: 23 March 2022; Ref: scu.428507

Crawford v Financial Institutions Services Ltd: PC 2 Nov 2005

(Jamaica) The government had intervened in banking institutions under the control of the appellant. Subsequently orders had been made against him for compensation in respect of loans made negligently or otherwise than in accordance with good banking practice. He appealed those orders.
Held: The appeal failed. He had not been accused of fraud, and his failure to gve evidence had led to proper inferences being drawn against him.

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Lord Mance

Citations:

[2005] UKPC 40

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .
See Also – Century National Merchant Bank Limited and others v Omar Davies and others PC 16-Mar-1998
(Jamaica) The lawfulness of action taken by the Minister of Finance under statutory powers to assume temporary management of three financial institutions was challenged, and the remedies available to aggrieved parties in the event of unlawfulness. . .
Cited – Armitage v Nurse; etc CA 19-Mar-1997
A clause in a trust deed may validly excuse trustees from personal liability for even gross negligence. The trustee was exempted from liability for loss or damage ‘unless such loss or damage shall be caused by his own actual fraud’.
Held: The . .
Cited – Jones v Lipman and Another ChD 1962
The defendant had contracted to sell his land. He changed his mind, and formed a company of which he was owner and director, transferred the land to the company, and refused to complete. The plaintiff sought relief.
Held: Specific performance . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Evidence

Updated: 11 February 2022; Ref: scu.235359

Yuen Kun-Yeu v Attorney-General of Hong Kong: PC 1987

(Hong Kong) The claimant deposited money with a licensed deposit taker, regulated by the Commissioner. He lost his money when the deposit taker went into insolvent liquidation. He said the regulator was responsible when it should have known of the difficulties.
Held: The requirements for a duty of care were a foreseeability of harm, and a close and direct proximity. The commissioner had no day to day contact with the deposit taker, and no especial proximity to the plaintiff. The nature of the statute gave no warranty that could properly have been relied upon by the plaintiff.
Lord Keith identified the issue at stake: ‘The foremost question of principle is whether in the present case the commissioner owed to members of the public who might be minded to deposit their money with deposit-taking companies in Hong Kong a duty, in the discharge of his supervisory powers under the Ordinance, to exercise reasonable care to see that such members of the public did not suffer loss through the affairs of such companies being carried on by their managers in fraudulent or improvident fashion.’
Lord Keith analysed the nature of the power exercisable by the defendants and the circumstances in which it would fall to be exercised. The power was to refuse or grant registration and to revoke or suspend it once granted. Anything other than granting the registration would put the deposit-taker out of business. The power was quasi-judicial. In exercising it, the defendant might well have to have regard to the interests of existing as well as prospective depositors whose interests might not coincide. The defendant did not have the resources to control the day to day management of the company. In those circumstances, the Commissioner owed no statutory or common law duty to potential depositors. It was not reasonable or justifiable for the plaintiffs to rely on the fact of registration as a guarantee of the soundness of the company, nor could the defendant be expected to know of such reliance. In the circumstances, no duty of care was owed to the plaintiffs.

Judges:

Keith L

Citations:

[1988] AC 175, [1987] 2 All ER 705, [1987] 3 WLR 776, [1987] UKPC 16

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Applied – Anns and Others v Merton London Borough Council HL 12-May-1977
The plaintiff bought her apartment, but discovered later that the foundations were defective. The local authority had supervised the compliance with Building Regulations whilst it was being built, but had failed to spot the fault. The authority . .

Cited by:

Cited – K v the Secretary of State for the Home Department CA 31-May-2002
The applicant sought damages from the defendant who had released from custody pending deportation a man convicted of violent sexual crimes and who had then raped her. She appealed against a strike out of her claim. She had been refused information . .
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 – Three Rivers District Council and Others v Governor and Company of The Bank of England HL 18-May-2000
The applicants alleged misfeasance against the Bank of England in respect of the regulation of a bank.
Held: The Bank could not be sued in negligence, but the tort of misfeasance required clear evidence of misdeeds. The action was now properly . .
Cited – Jones v Department of Employment CA 1989
The claimant said the respondent adjudication officer had been negligent in assessing and rejecting his claim for benefits, which had later been allowed on appeal. The officer claimed he was exercising a judicial office and was immune from action. . .
Cited – Tee v Lautro Limited CA 20-Nov-1996
. .
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 – Mitchell and Another v Glasgow City Council HL 18-Feb-2009
(Scotland) The pursuers were the widow and daughter of a tenant of the respondent who had been violently killed by his neighbour. They said that the respondent, knowing of the neighbour’s violent behaviours had a duty of care to the deceased and . .
Cited – Glaister and Others v Appelby-In-Westmorland Town Council CA 9-Dec-2009
The claimant was injured when at a horse fair. A loose horse kicked him causing injury. They claimed in negligence against the council for licensing the fair without ensuring that public liability insurance. The Council now appealed agaiinst a . .
Distinguished – Schubert Murphy (A Firm) v The Law Society QBD 17-Dec-2014
The claimant solicitors’ firm had acted in a purchase, but the vendors were represented by fraudsters presenting themselves as solicitors, registering with the defendant in names of retired solicitors, and who made off with the money intended for . .
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .
Cited – The Law Society of England and Wales v Schubert Murphy (A Firm) CA 25-Aug-2017
The solicitors had made use of the online facility provided by the appellant Law Society to verify the bona fides of a firm of solicitors acting for a third party to a transaction. Relying upon the information, they suffered losses, and claimed in . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Negligence

Updated: 11 February 2022; Ref: scu.181785

National Australia Bank Ltd v Bond Brewing Holdings Ltd: 1991

(Supreme Court of Victoria) The court had appointed a receiver without requiring a cross-undertaking in damages. The order was then set aside, and compensation was sought. There had been no cross-undertaking.
Held: If it had power to award compensation it would do so. However, after an exhaustive review of authorities from three continents, the court unanimously concluded that the court had no such power; and that a person against whom an injunction is granted but later discharged is ‘without remedy’ in the absence of a cross-undertaking.
Kaye J: ‘It is therefore clear from the authorities to which I have referred that the practice followed for nearly 150 years of requiring a plaintiff seeking an interim or interlocutory injunction to give an undertaking as to damages has been based on the view that otherwise the defendant would be without remedy in the event of the order having been improperly made.’
Murphy J: ‘Next, restitutio in integrum has been espoused as a principle by the appellants. The cases relied upon to support the assertion that it is just and equitable to award monetary compensation for any loss caused the appellants do not in my view go this far in terms. It must be conceded that it is an established principle that it is just and equitable to allow interest upon money ordered to be repaid to a defendant who has been wrongly ordered to pay a capital sum to a plaintiff’ and
‘The fallacy in the appellants’ case appears to me to rest in the fact that they cannot point to a right entitling them in equity to monetary compensation. What the respondents have done is come to the court seeking payment of an alleged debt, and in the course of such action have sought interlocutory equitable relief in support of that claim. The court has ruled that the interlocutory equitable relief sought was wrongly granted, and have set it aside, but this did not constitute the breach or infringement of any recognisable right in equity which might have entitled the appellants/defendants to monetary compensation or might have obliged the respondents to put the appellants ‘in as good a position pecuniarily as that in which he was’ (they were) ‘before the injury’: Nocton v Lord Ashburton [1914] A.C. 932, at p.952.’ and
‘Nowhere have the researches of counsel found a relevant precedent in which, in the absence of an undertaking, an award of monetary compensation has been made to compensate a defendant for loss occasioned [to] his property by the making of an erroneous order that has been subsequently set aside’
Brooking J: ‘With all due respect to W.S. Gilbert’s Lord Chancellor, in practice the law is not always the true embodiment of everything that’s excellent. Mistakes are made from time to time.’ and
‘The first question is that of the limits of the principle expressed by Lord Cairns in Rodger’s Case. For the passage cannot be read as asserting that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. The law being what it is, and judges being what they are, many wrong judgments and orders are given and made. These can be corrected on appeal. But there are and must be limits to how far the courts will go in putting matters right on appeal.’ and
‘But while the cases show that the courts will often, by way of setting things right on appeal, go beyond the mere substitution of the right judgment or order for the wrong one, it is not the law that the court will always ensure, so far as possible, that no suitor suffers as a result of the act of the court a loss for which there is no redress. Any such unlimited principle is inconsistent with the law’s recognition of the torts of malicious abuse of process and malicious institution of proceedings, with their uncertain, but certainly limited, scope: Metall und Rohstoff v Donaldson Lufkin and Jenrette [1989] 3 W.L.R. 563, at pp. 611-15. And any such unlimited principle would mean that an appellate court would be entitled or obliged to award compensation or damages whenever it set aside an erroneous judgment or order which had caused damage to the appellant which was not regarded for this purpose as too remote. Yet many final judgments or orders that may be set aside on appeal are apt to cause great damage to the unsuccessful party in circumstances where it is unthinkable that the appellate court should have power to award damages or compensation. An order winding up a corporation is about as drastic an order as one could imagine. Such an order will rarely be stayed pending an appeal, and great and irremediable damage may be done to the corporation by the order in the meantime. But I have never heard it suggested that if a winding up order is set aside on appeal the appellate court may award damages or compensation against the party who obtained it. At the trial of an action a final injunction to prevent the commission of a nuisance may put the defendant out of business. May the court of appeal not only set aside the injunction but also award damages for the destruction of the defendant’s business? A judgment for possession of business premises may mean financial disaster for the defendant who claims that his lease has not been duly determined. If there is no stay and the defendant succeeds on appeal, is he to be awarded damages on the principle that the court must take care that ‘no act of the Court in the course of the whole of the proceedings does an injury to the suitors in the Court.’

Judges:

Murphy J, Kaye J, Brooking J

Citations:

[1991] 1 VR 386

Citing:

Cited – Nocton v Lord Ashburton HL 19-Jun-1914
The defendant solicitor had persuaded his client to release a charge, thus advancing the solicitor’s own subsequent charge on the same property. The action was started in the Chancery Division of the High Court. The statement of claim alleged fraud . .

Cited by:

Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice, Equity

Updated: 11 February 2022; Ref: scu.231217

Brown v The Queen (Jamaica): PC 13 Apr 2005

A police officer appealed against his conviction for manslaughter after being involved in a road traffic accident. Two were killed. The policemen complained as to the direction given on gross negligence manslaughter.
Held: Adomako could not apply in jurisdictions where causing a death by reckless driving is a possible alternative to a charge of manslaughter. ‘Where those statutory offences can be charged, as in Jamaica, the content of motor manslaughter must frequently bear some relation to them, in which event a definition has necessarily to be framed with reference to recklessness. There must be proof of an extra ingredient, over and above the elements proof of which will ground a charge of causing death by reckless driving, but in their Lordships’ opinion juries have to be directed on the meaning of recklessness if they are to give proper consideration to a charge of motor manslaughter. It follows that the authority of R v Seymour and R v Lawrence must still hold good in those jurisdictions, subject to the modification made by the recent decision of the House of Lords in R v G [2004] 1 AC 1034, to which their Lordships now turn. ‘ Though the judge’s directions were at fault, the faults wer not so serious as to fundamentally undermine the conviction. However in the context of the stautory charge of causing death by dangerous driving, the standard for proving manslaughter must be high. That standard had not been reached here. A conviction for the lesser offence was substituted, and the matter remitted for sentence.

Judges:

Lord Steyn, Lord Slynn of Hadley, Lord Hutton, Lord Rodger of Earlsferry, Lord Carswell

Citations:

[2005] UKPC 18, [2005] 2 WLR 1558, [2006] 1 AC 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Rex v Bateman CCA 1925
A doctor was convicted of manslaughter arising out of his treatment of a woman in childbirth. Lord Hewart CJ discussed the law governing manslaughter by negligence, which required, as the element distinguishing criminal from civil liability, proof . .
Cited – Regina v Shulman, Regina v Prentice, Regina v Adomako; Regina v Holloway HL 1-Jul-1994
An anaesthetist failed to observe an operation properly, and did not notice that a tube had become disconnected from a ventilator. The patient suffered a cardiac arrest and died, and the defendant was convicted of manslaughter, being guilty of gross . .
Cited – Regina v Lawrence (Stephen) HL 1981
The defendant had ridden a motor-cycle and hit a pedestrian. The court asked whether he had been reckless.
Held: The House understood recklessness as ‘a state of mind stopping short of deliberate intention, and going beyond mere inadvertence’ . .
Cited – Regina v Government of Holloway Prison, Ex parte Jennings HL 1983
J sought habeas corpus to avoid her extradition to California on a charge of manslaughter arising from a motor accident. Her counsel argued that the unlawful killing of another by the reckless driving of a motor vehicle on a road was no longer . .
Cited – Regina v Charlie Williamson 1993
(Court of Appeal of Jamaica) . .
Cited – Kong Cheuk Kwan v The Queen PC 10-Jul-1985
Two hydrofoils collided, causing deaths. The officers were charged with manslaughter.
Held: The Board applied to the situation the law which had developed for road traffic accidents. . .
Cited – Andrews v Director of Public Prosecutions HL 22-Apr-1937
The defendant was accused of manslaughter in a road traffic case.
Held: The House sought a simple definition of manslaughter which would be applicable for road traffic cases. Lord Atkin said: ‘My Lords, of all crimes manslaughter appears to . .
Cited – Regina v Seymour HL 1983
The court considered the relationship between the offences of manslaughter and causing death by reckless driving. The applicant argued that recklessness in a manslaughter case bore a different meaning from that which applied in respect of the . .
Cited – Commissioner of Police v Caldwell HL 19-Mar-1981
The defendant got drunk and set fire to the hotel where he worked. Guests were present. He was indicted upon two counts of arson. He pleaded guilty to the 1(1) count but contested the 1(2) charge, saying he was so drunk that the thought there might . .
Cited – Commissioner of Police v Caldwell HL 19-Mar-1981
The defendant got drunk and set fire to the hotel where he worked. Guests were present. He was indicted upon two counts of arson. He pleaded guilty to the 1(1) count but contested the 1(2) charge, saying he was so drunk that the thought there might . .
Cited – Elliott v C 1983
A 14-year old girl of low intelligence entered a shed, poured white spirit on the floor and set it alight. The fire destroyed the shed after she left. The allegation was that she was reckless. The justices applied Caldwell but inferred that in his . .
Cited – Regina v G and R HL 16-Oct-2003
The defendants, young boys, had set fire to paper and thrown the lit papers into a wheelie bin, expecting the fire to go out. In fact substantial damage was caused. The House was asked whether a conviction was proper under the section where the . .
Cited – Regina v Reid HL 1992
The defendant, convicted of causing death by reckless driving contrary asked the House to reconsider its decision in Lawrence on which the trial judge’s jury direction had been based.
Held: Lawrence remained good. (Lord Keith) ‘where the . .
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.
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 07 February 2022; Ref: scu.224733

Attorney-General v Prince and Gardner: 1998

(New Zealand Court of Appeal) Claims in negligence were made by the natural mother of a child who had been adopted, and also by the child, now an adult, complaining of the process followed in the adoption and also of failure to investigate a complaint made about his treatment when the child was still a child.
Held: The social worker’s function is one of independent professional judgment, the purpose of which is to facilitate the Family Court’s determination of the application. The legislative environment is of considerable relevance to the dual issues of proximity and policy which drive the conventional enquiry into whether it is fair, just and reasonable to impose a duty of care in a novel situation. The court struck out the first claim as incompatible with the adoption regime laid down by statute in New Zealand, but by a majority, allowed both the claims under the second head to proceed to trial.

Judges:

Richardson P

Citations:

[1998] 1 NZLR 262, [1998] NZFLR 145, (1997) 16 FRNZ 258

Jurisdiction:

England and Wales

Cited by:

Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – B and others v Attorney General and others PC 16-Jul-2003
(New Zealand) Children were removed from their home. The father was interviewed for suspected child abuse, but no charges were laid. He sought damages in negligence for the way the matter had been handled. Children whose allegations against adopted . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Health Professions

Updated: 07 February 2022; Ref: scu.224419

AMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board): 24 Mar 1993

Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens . . the foreign court could reasonably have concluded that there was no alternative forum that was clearly More appropriate, the domestic court should respect that decision and the application [for an anti-suit injunction] should be dismissed.’

Judges:

La Forest, Sopinka, Gonthier, Cory and McLachlin JJ

Citations:

[1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674

Links:

Canlii

Cited by:

Approved – Airbus Industrie G I E v Patel and Others HL 2-Apr-1999
An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Contract, International

Updated: 31 January 2022; Ref: scu.228197

Housen v Nikolaisen: 28 Mar 2002

Supreme Court of Canada – Torts – Motor vehicles – Highways – Negligence – Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Municipal law — Negligence — Liability of rural municipality for failing to post warning signs on local access road — Passenger sustaining injuries in motor vehicle accident on rural road — Trial judge apportioning part of liability to rural municipality — Whether Court of Appeal properly overturning trial judge’s finding of negligence — The Rural Municipality Act, 1989, S.S. 1989-90, c. R-26.1, s. 192.
Appeals — Courts — Standard of appellate review — Whether Court of Appeal properly overturning trial judge’s finding of negligence — Standard of review for questions of mixed fact and law.
‘The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged.’

Judges:

McLachlin CJ and L’Heureux-Dube, Gonthier, Iacobucci, Major, Bastarache, Binnie, Arbour and LeBel JJ

Citations:

[2002] 2 SCR 235, 2002 SCC 33, 211 DLR (4th) 577, 286 NR 1, [2002] 7 WWR 1, 219 Sask R 1, 10 CCLT (3d) 157, AZ-50118043, [2002] CarswellSask 178

Links:

SCC, Canlii

Jurisdiction:

Canada

Cited by:

Cited – McGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
Cited – Henderson v Foxworth Investments Limited and Another SC 2-Jul-2014
It was said that land, a hotal and gold courses, had been sold at an undervalue and that the transaction was void as against the seller’s liquidator.
Held: The appeal was allowed. The critical issue was whether ‘the alienation was made for . .
Cited – Perry v Raleys Solicitors SC 13-Feb-2019
Veracity of a witness is for the court hearing him
The claimant, a retired miner, had sued his former solicitors, alleging professional negligence in the settlement of his claim for Vibration White Finger damages under the government approved scheme for compensation for such injuries. At trial, the . .
Cited – DB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .
Cited – Stocker v Stocker SC 3-Apr-2019
The parties had been married and divorced. Mrs S told M S’s new partner on Facebook that he had tried to strangle her and made other allegations. Mrs S now appealed from a finding that she had defamed him. Lord Kerr restated the approach to meaning . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 29 January 2022; Ref: scu.540459

Lee v Lee’s Air Farming Limited: PC 11 Oct 1960

Mr Lee had formed a company, Lee’s Air Farming Limited and held nearly all its shares. He was the managing director, but by profession a pilot. The company was formed to conduct an aerial top-dressing business. He appointed himself the chief pilot for the company. In the Court of Appeal of New Zealand, North J said: ‘These powers were moreover delegated to him for life and there remained with the company no power of management whatsoever. One of his first acts was to appoint himself the only pilot of the company, for, although article 33 foreshadowed this appointment, yet a contract could only spring into existence after the company had been incorporated. Therefore, he became in effect both employer and worker. True, the contract of employment was between himself and the company: see Booth v Helliwell, but on him lay the duty both of giving orders and obeying them. In our view, the two offices are clearly incompatible. There could exist no power of control and therefore the relationship of master-servant was not created.’
Held: Appeal allowed. ‘one person may function in dual capacities. ‘ and ‘Ex facie there was a contract of service . . the real issue is whether the position of the deceased as sole governing director made it impossible for him to be the servant of the company in the capacity of chief pilot of the company. . . there was no such impossibility. There appears to be no greater difficulty in holding that a man acting in one capacity can give orders to himself in another capacity than there is in holding that a man acting in one capacity can make a contract with himself in another capacity. The company and the deceased were separate legal entities. The company had the right to decide what contracts for aerial top-dressing it would enter into. The deceased was the agent of the company in making the necessary decisions.’

Judges:

Viscount Simons, Lord Reid, Lord Tucker, Lord Denning, Lord Morris

Citations:

[1960] 3 All ER 420, [1960] UKPC 33, [1960] 3 WLR 758, [1961] AC 12

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Salomon v A Salomon and Company Ltd HL 16-Nov-1896
A Company and its Directors are not same paersons
Mr Salomon had incorporated his long standing personal business of shoe manufacture into a limited company. He held nearly all the shares, and had received debentures on the transfer into the company of his former business. The business failed, and . .

Cited by:

Cited – Ben Hashem v Ali Shayif and Another FD 22-Sep-2008
The court was asked to pierce the veil of incorporation of a company in the course of ancillary relief proceedings in a divorce. H had failed to co-operate with the court.
After a comprehensive review of all the authorities, Munby J said: ‘The . .
Lists of cited by and citing cases may be incomplete.

Company, Employment, Commonwealth

Updated: 28 January 2022; Ref: scu.445368

Madhewoo v The State of Mauritius and Another: PC 31 Oct 2016

(From the Supreme Court of Mauritius) The claimant had alleged that a new compulsory biometric identity card scheme contravened his human rights. It was provided that citizens must carry such cards and produce them to identify themselves upon request. In particular the court had found that the need to give fingerprints and for their retention requird justification.
Held: The Constitution is to be given a generous and purposive interpretation and in particular the provisions that enshrine fundamental rights should receive a generous and not literalist interpretation.

Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hodge
[2016] UKPC 30
Bailii
Commonwealth

Commonwealth, Constitutional

Updated: 24 January 2022; Ref: scu.570730

Connell v Odlum: 1993

(New Zealand Court of Appeal) Prior to his marriage to W, the claimant wished to enter with her into an agreement of which the statutory effect would be to contract them out of the law’s general provisions for the making of financial adjustments between them in the event of separation. Pursuant to one of the statutory requirements, the defendant, who was W’s solicitor, certified that, prior to her signing the agreement, he had explained its effect to her. Following separation a judge found that he had not explained its effect to her and held that the agreement was void. The agreement settling their ancillary affairs was found to be invalid after the wife’s solicitors had failed properly to explain its effect to her. The husband sued her solicitor in negligence. The solicitor applied to have the claim struck out on the basis that he owed no duty of care to the husband in advising the wife. He did not succeed before the High Court and appealed.
Held: The husband had an arguable claim against the solicitor, so that the application to strike out was properly declined. The solicitor had in effect stepped outside his role as his client’s solicitor and accepted with the act of certification a direct responsibility to the other party to the agreement. Once a solicitor has assumed the obligation under the New Zealand statute to certify its requirements have been met, he or she has ‘undertaken a duty which is ‘separate and different’ from their professional duty to their client and one which they must contemplate will be relied upon by the other party to the agreement.’
Thomas J explained that the claimant had relied, and had been expected by the defendant to rely, on the certificate as a feature of the validity of the agreement and that there had been the necessary assumption of responsibility towards him on the part of the defendant.

Thomas J
[1993] 2 NZLR 257
England and Wales
Cited by:
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 22 January 2022; Ref: scu.424849

Evon Smith v The Queen: PC 14 Nov 2005

PC (Jamaica) The Board was asked whether the offence was a capital murder. The murder was committed in the course of a burglary. The defendant had stood on a ladder and reached in through a window and attacked the victim with a machete.
Held: (Majority opinion) ‘the offences of burglary and housebreaking both relate to acts of breaking into and entering dwelling houses. The protection of the subsection undoubtedly extends to those who are at risk of being killed by intruders who have broken into their homes for the purpose of stealing from them. But it does not follow that every murder committed within a victim’s own home is a capital murder, nor does it follow that a capital murder is committed by every person who kills after breaking into the victim’s dwelling house. The legislature could have said so if this was its intention, and in this area of the law where the right to life is in issue it had to spell out what it meant with absolute clarity. What it did was to restrict the offence of capital murder to the categories listed in section 2(1), which require more of the intruder to qualify as a capital murderer than the act of breaking into and entering the dwelling house with intent to commit the murder. They require a duality of purpose which is absent from this case. ‘

Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Walker of Gestingthorpe
[2005] UKPC 43, [2006] 1 WLR 243
Bailii, PC
England and Wales
Citing:
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 . .
Cited – Regina v Vickers CCA 1957
The appellant, having broken into a dwelling-house to commit burglary, came upon the occupier whom he struck in a way which according to the medical evidence could have been inflicted with a moderate degree of violence. The victim died as a result. . .
Cited – Lamey v The Queen PC 20-May-1996
(Jamaica) The appellant was convicted of capital murder.
Held: Murder was not a terrorist act where fear caused is merely a by-product of the acts and not directly intended. He had had no intention of putting any member of the public in fear. . .
Cited – HM Advocate v Graham HCJ 1958
The accused was said to have stabbed the deceased while in the act of breaking into a public house with intent to steal from it. There was evidence that he was attempting to break in and steal when the fatal struggle took place.
Held: There . .
Cited – Regina v Jones 1959
There were two criminal acts and the defendant had two purposes, one ancillary to the other. His primary intention was to steal. Having stolen the money, he then killed as he left the house in order to avoid detection. . .

Lists of cited by and citing cases may be incomplete.

Crime

Updated: 22 January 2022; Ref: scu.236688

CIVC v Wineworths: 1991

(New Zealand High Court)

[1991] 2 NZLR 327
England and Wales
Cited by:
Cited – Chocosuisse, Kraft Jacobs Suchard (Schweiz) Ag, Chocoladefabriken Lindt and Sprungli (Schweiz) Ag v Cadbury Limited PatC 29-Oct-1997
The plaintiffs brought actions in passing off against the defendant company in respect of their chocolate products. They objected to the use of the terms ‘Swiss Chocolate’ applied to chocolates not made in Switzerland.
Held: The claimant had . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 18 January 2022; Ref: scu.239100

Donnelly v Adams: 1905

(Ireland)

[1905] 1 Irish Reports 154
England and Wales
Cited by:
Cited – Kent and Another v Kavanagh and Another CA 2-Mar-2006
The parties owned properties part of a building estate. The properties had been held under leases, but those had been enfranchised. The question was as to how the easements granted by the leases were preserved on enfranchisement. A particular . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 18 January 2022; Ref: scu.239385

Paponette and Others v Attorney General of Trinidad and Tobago: PC 13 Dec 2010

The appellants operated taxis in Port-of-Spain. The Minister proposed changes, but when challenged provided re-assurances. After the changes, the re-assurances were not satisfied. The claimants sought judicial review asserting that a legitimate expectation had been created in their favour.
Held: The question to be asked is whether it would be so unfair as to amount to an abuse of power for a public body so to act.

Lord Phillips, Lady Hale, Lord Brown, Sir John Dyson, SCJ, Sir Malachy Higgins
[2010] UKPC 32, [2012] 1 AC 12, [2011] 3 WLR 219
Bailii
England and Wales
Citing:
Applied – The Association of British Civilian Internees – Far Eastern Region (ABCIFER) v Secretary of State for Defence CA 3-Apr-2003
The association sought a judicial review of a decision not to pay compensation in respect of their or their parents or grandparents’ internment by the Japanese in the Second World War. Payment was not made because those interned were not born in . .

Cited by:
Cited – Badger Trust, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 29-Aug-2014
The respondent had carried out the first round of a badger cull, subject to supervision and reporting by an independent expert panel. Promoises were made, the claimant said, that the panel’s role would be maintained for any subsequent round. The . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Judicial Review

Updated: 16 January 2022; Ref: scu.427053

Allied Finance and Investments Ltd v Haddow and Co: 1983

(New Zealand Court of Appeal) The claimant had agreed to make a loan to X and to take security for it on a yacht. The defendants, who were X’s solicitors, certified to the claimant that the instrument of security executed by X in relation to the yacht was binding on him. In fact, as the defendants knew, it was not binding on him because he was not, and was not intended to become, the owner of the yacht.
Held: The fact that a certificate is sent by a solicitor to a lender confirming the giving of independent advice and that guarantors had signed the guarantee voluntarily may place a duty of care on the solicitor in relation to the lender.
Cooke J said: ‘the relationship between two solicitors acting for their respective clients does not normally of itself impose a duty of care on one solicitor to the client of the other. Normally the relationship is not sufficiently proximate. Each solicitor is entitled to expect that the other party will look to his own solicitor for advice and protection.’
Richardson J said: ‘This is not the ordinary case of two solicitors simply acting for different parties in a commercial transaction. The special feature attracting the prima facie duty of care is the giving of a certificate in circumstances where the [defendants] must have known it was likely to be relied on by the [claimant].’

Cooke J, Richardson J
[1983] NZLR 22
England and Wales
Cited by:
Cited – Connolly-Martin v Davis CA 27-May-1999
A claim was brought by a party against counsel for his opponent who had gone beyond his authority in giving an undertaking for his client.
Held: The claim had no prospect of success, and had been struck out correctly. Counsel offering to the . .
Cited – Steel and Another v NRAM Ltd (Formerly NRAM Plc) SC 28-Feb-2018
The appellant solicitor acted in a land transaction. The land was mortgaged to the respondent bank. She wrote to the bank stating her client’s intention to repay the whole loan. The letter was negligently mistaken and the bankers allowed the . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Professional Negligence

Updated: 12 January 2022; Ref: scu.424848

Gartside v Sheffield Young and Ellis: 1983

(New Zealand) The court discussed the potential liability of a solicitor having failed to prepare an effective will: ‘To deny an effective remedy in a plain case would seem to imply a refusal to acknowledge the solicitor’s professional role in the community. In practice the community relies upon solicitors (or statutory officers with similar functions) tp prepare effective wills.’

Cooke J
[1983] NZLR 37
England and Wales
Citing:
Applied – Ross v Caunters (a firm) ChD 1979
The court upheld a finding of negligence against a firm of solicitors for failing to ensure the correct attestation of a will, and also the award of damages in favour of a disappointed beneficiary.
A solicitor owes a duty of care to the party . .

Cited by:
Cited – White and Another v Jones and Another HL 16-Feb-1995
Will Drafter liable in Negligence to Beneficiary
A solicitor drawing a will may be liable in negligence to a potential beneficiary, having unduly delayed in the drawing of the will. The Hedley Byrne principle was ‘founded upon an assumption of responsibility.’ Obligations may occasionally arise . .
Distinguished – Clarke v Bruce Lance and Co CA 1988
The defendant solicitors drafted a will, which the testator executed in 1973. The testator later granted a lease of a service station which had been disposed of in the will, and then granted an option for its purchase at a fixed price, which the . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .

Lists of cited by and citing cases may be incomplete.

Professional Negligence, Commonwealth, Wills and Probate

Updated: 12 January 2022; Ref: scu.195673