Category: Commonwealth

Junior Reid, Roy Dennis and Oliver Whylie v The Queen; Errol Reece, Robert Taylor and Delroy Quelch v the Queen: PC 27 Jul 1989

PC (Jamaica)

Lord Diplock
[1989] UKPC 1, [1990] 1 AC 363
Bailii, PC, PC
England and Wales
Cited by:
Cited – Dean Cedeno v Kenwin Logan PC 18-Dec-2000
(Trinidad and Tobago) The defendant appealed conviction and sentence for larceny, based on identification evidence. He said that the magistrate had failed to give proper weight to the need, pace Turnbull, to be careful in accepting identification . .
Cited – Delroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Human Rights

Updated: 08 January 2022; Ref: scu.159151

Krys and Others v KBC Partners Lp and Others: PC 19 Nov 2015

From the Court of Appeal of the Eastern Caribbean Supreme Court (British Virgin Islands) – The parties disputed the destination for funds held by a limited partnership set up to manage investments of principals whose identities were hidden.

Lord Mance, Lord Sumption, Lord Reed, Lord Toulson, Lord Hodge
[2015] UKPC 46
Bailii

Commonwealth, Company, Insolvency

Updated: 06 January 2022; Ref: scu.554763

Robinson v The State: PC 20 Jul 2015

Trinidad and Tobago – The defendant appealed against his conviction for murder, complaining of the manner in which the partial defence of diminished responsibility was dealt with in the court of trial.

Lady Hale, Lord Kerr, Lord Clarke, Lord Hughes, Lord Toulson
[2015] UKPC 34, [2015] WLR(D) 322
Bailii, WLRD

Commonwealth, Crime

Updated: 03 January 2022; Ref: scu.551028

Arcelormittal Point Lisas Ltd v Steel Workers Union of Trinidad and Tobago: PC 6 Aug 2015

Trinidad and Tobago – The Board considered the applicability of collective agreements to persons employed under ‘labour only’ contracts under Trinidad and Tobago legislation

Lady Hale, Lord Clarke, Lord Wilson, Lord Hodge, Sir Paul Girvan
[2015] UKPC 36
Bailii

Commonwealth, Employment

Updated: 03 January 2022; Ref: scu.551029

Hunte and Another v The State: PC 16 Jul 2015

Trinidad and Tobago – defendants appealed against conviction for murder and also against the sentences imposed.
Held: The fact alone that the Board was hearing an appeal against conviction and or sentence did not give it jurisdiction to order the commutation of the death penalty. Such an order required an application under a constitutional sentence.

Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Toulson
[2015] UKPC 33, [2015] WLR(D) 340
Bailii, WLRD

Commonwealth, Crime, Criminal Sentencing, Constitutional

Updated: 03 January 2022; Ref: scu.551027

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 unconstitutional, being inhuman treatment.
Held: The imposition of the mandatory death sentence on the appellant subjected him to an inhuman punishment. Since the the provision had been repealed and re-instated, it was not pre-existing law and was not saved by the new constitution: ‘So long as these laws remained untouched, they did not have to be scrutinised. But as soon as they were changed, adapted or modified in any respect, except in the circumstances referred to in paragraphs (a) and (b) of section 26(9), they had to comply with the requirements of Chapter III.’ The results might be different for different constitutions.

Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Mr. Justice Edward Zacca
[2004] UKPC 34, Times 14-Jul-2004, [2005] 1 AC 472
Bailii, PC, PC
England and Wales
Citing:
Cited – Reyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Regina v Hughes PC 11-Mar-2002
(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading . .
Cited – Ong Ah Chuan v The Public Prosecutor PC 1980
(Singapore) It was asked whether the mandatory death sentence for trafficking in more than 15 grammes of heroin was unconstitutional. The appellant submitted that the mandatory nature of the sentence rendered it arbitrary, since it debarred the . .
Cited – Regina v Powell (Anthony) and Another; Regina v English HL 30-Oct-1997
When the court looked at the issue of foreseeability of murder in an allegation of joint enterprise, there was no requirement to show intent by the secondary party. The forseeability of the risk of the principal committing the offence from the point . .
Cited – Director of Public Prosecutions v Nasralla PC 1967
(Jamaica) The constitution provided that no person tried for a criminal offence and either convicted or acquitted should again be tried for that offence. It was asked whether this was to be treated as declaring the common law or as expressing the . .
Cited – Matthew vThe State PC 7-Jul-2004
(Trinidad and Tobago) The court questioned the constitutionality of the mandatory death penalty in Trinidad.
Held: The constitution of Trinidad, when implemented, forbade cruel and unusual punishment, but also preserved existing penalties. The . .
Cited – Boyce and Joseph v Regina PC 7-Jul-2004
(Barbados) The appellants challenged the constitutionality of the death penalty in Barbados.
Held: The new constitution banned treatment which was inhuman or degrading, but preserved existing penalties. The mandatory death sentence remained in . .

Cited by:
Cited – David Gordon v The Queen PC 15-Dec-2005
PC (Jamaica) The defendant appealed his conviction for capital murder whilst in the course of committing a sexual offence.
Held: There had been weaknesses in the direction on joint enterprise, but the . .
Cited – 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 . .
Cited – Ebanks (Jurt) v The Queen PC 16-Feb-2006
(Jamaica) The defendant appealed against his conviction for murder saying that identification evidence had been wrongly admitted and also if that appeal failed against the sentence of death. Though the witness knew the defendant, an identification . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Sentencing, Constitutional

Updated: 03 January 2022; Ref: scu.198647

Metaxides and Another v Swart and Others: PC 14 Jul 2015

From the Court of Appeal of the Commonwealth of The Bahamas – the respective parties owned apartments within a condominium, and one now asserted that a settlement by the other group with the landlord was unlawful because the original proceedings had been defective, being brought against a non-existent party.

Lord Neuberger, Lord Clarke, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKPC 32
Bailii

Commonwealth, Landlord and Tenant

Updated: 02 January 2022; Ref: scu.550214

Lovelace v The Queen: PC 15 Jun 2017

(St Vincent and The Grenadines) Appeal against the decision of the Eastern Caribbean Court of Appeal (Saint Vincent and the Grenadines) dismissing his application for an extension of time to apply for leave to appeal against sentence of death imposed on the appellant..

[2017] UKPC 18
Bailii
England and Wales

Criminal Sentencing

Updated: 31 December 2021; Ref: scu.591296

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

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

Carnwath LJ, Mitting J
[2009] EWHC 1039 (Admin)
Bailii
The Turks and Caicos Islands Constitution (Interim Amendment) Order 2009, West Indies Act 1962, United Nations International Covenants 1966
England and Wales
Citing:
Cited – Calvin’s case 1606
Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws . .
Applied – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Lykourezos v Greece ECHR 15-Jun-2006
‘once the wishes of the people have been freely and democratically expressed, no subsequent amendment to the organisation of the electoral system may call that choice into question, except in the presence of compelling grounds for the democratic . .
Cited – Campbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
Cited – Liyanage and others v The Queen PC 2-Dec-1965
liyanagePC196502
The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Regina v Makanjuola CACD 17-May-1995
Guidance was given on the directions to be given to the jury where a co-accused speaks for prosecution as a witness and in sexual assault cases. The full corroboration warning is not now needed; the Judge may use his own discretion, and may give a . .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Pierson HL 24-Jul-1997
The Home Secretary may not later extend the tariff for a lifer, after it had been set by an earlier Home Secretary, merely to satisfy needs of retribution and deterrence: ‘A power conferred by Parliament in general terms is not to be taken to . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 31 December 2021; Ref: scu.346158

Ram (Administrator of The Estate of Pearl Baboolal) v Motor and General Insurance Company Ltd: PC 18 May 2015

Trinidad and Tobago – There had been a road traffic accident leading to the loss of several lives. The insurer of the negligent party resisted paying out more in damages, saying that its liability was limited to $1m, and: ‘The principal issue in this appeal is whether an insurance company, before it pays third party claims under an insurance policy which has a contractual monetary limit on the aggregate of claims arising out of one event which equates with the statutory minimum cover, must (a) ascertain the total claims arising from the event and (b) where the total exceeds the limit, devise a scheme for the proportionate payment of the claims.’

Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge
[2015] UKPC 22
Bailii
Commonwealth

Insurance, Road Traffic

Updated: 30 December 2021; Ref: scu.546864

Hall v Maritek Bahamas Ltd: PC 18 May 2015

The Bahamas – the court was asked whether negotiations had concluded in a binding contract for the sale of land where the buyer had not yet required the necessary permission, as a non-resident, to acquire land, and the contract was conditional upon such.

Lord Mance, Lord Kerr, Lord Clarke, Lord Carnwath, Lord Gill (Scotland)
[2015] UKPC 23
Bailii

Commonwealth, Contract, Land

Updated: 30 December 2021; Ref: scu.546863

Brantley and Others v Constituency Boundaries Commission and Others: PC 11 May 2015

Saint Christopher and Nevis – the parties disputed the implementation of constituency boundary changes in anticipation of a forthcoming election.
Held: The declaration having been made onlay after parliament had been dissolved, could only take affect in the election next following parliament having re-assembled.

Lord Mance
Lord Kerr, Lord Clarke, Lord Reed, Lord Hodge
[2015] UKPC 21, [2015] WLR(D) 209
Bailii, WLRD

Commonwealth, Elections, Constitutional

Updated: 30 December 2021; Ref: scu.546862

Victorian Railway Commissioners v Coultas: PC 21 Jan 1888

(Victoria) The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
Held: The defendant’s appeal on liability succeeded. It was difficult, if not impossible, to recover damages for ‘illness which was the effect of shock caused by fright’. Such injury was regarded as being too remote a head of damages in an action for negligence. There would be evidential difficulty in deciding upon the causes of psychiatric symptoms. Mere sudden terror unaccompanied by actual physical injury could not in such circumstances be considered a consequence which in the ordinary course would flow from the negligence of the gate keeper.
‘Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be.’

Fitzgeral, Hobnouse LL, Sir Barnes Peacock, Sir Richard Couch
(1888) 13 App Cas 222, [1888] UKPC 3, (1888) LR 13 App Cas 222
Bailii
Australia
Cited by:
Distinguished – Wilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Not Followed – Dulieu v White and Sons KBD 1901
A pregnant barmaid suffered nervous shock causing her to give premature birth as a result of the tortfeasor’s horse van bursting into her bar at the Bonner Arms in Bethnal Green from the roadway. The defendant pleaded that the damages claimed were . .
Cited – Wainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
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 – OPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
Cited – Rhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .

Lists of cited by and citing cases may be incomplete.

Negligence, Damages

Updated: 30 December 2021; Ref: scu.186859

Central Bank of Ecuador and Others v Conticorp Sa and Others: PC 23 Mar 2015

From the Court of Appeal of the Commonwealth of The Bahamas. The Board was asked as to the probity of three transactions entered into by the appellant. Held; The nominee director at the centre of the allegations had, in breach of his duty to the company, not acted indepently, but had instead acted as instructed by a third party. He could not surrender his decisions to a third party. He had to act honestly, in good faith, and in the company’s best interests, exercising appropriate skills at a level expected of others acting in comparable circumstances. This director had acted in breach of those duties when, acting on the instructions of third parties in the mannr described, he had caused it to enter into transactions which later proved to be worthless

Lord Mance, Lord Clarke, Lord Sumption, Lord Carnwath,Lord Toulson
[2015] UKPC 11, [2015] WLR(D) 150, [2015] BUS LR D7
Bailii, WLRD
Commonwealth
Cited by:
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Company

Updated: 29 December 2021; Ref: scu.545677

Dorothy Roulstone v O L Panton (Administrator of the Estate of Olive Hinds): PC 27 Jul 1979

Cayman Islands – The Board was asked whether the beneficial interests in certain parcels of land conveyed to the appellant and another jintly on purchases were those of joint tenants so that ion the death of the co-owner intestate, the appellant became owner vy survivorship of the sole legal and beneficial interests. Ther was no suggestion of any severance.

[1979] UKPC 36, [1979] 1 WLR 1465
Bailii

Commonwealth, Land, Trusts

Updated: 29 December 2021; Ref: scu.544923

Lee Chow Meng alias Koh Loh Meng alias Lim Peng Hun v The Public Prosecutor: PC 10 May 1979

Malaysia – The Board declined to hear the petition of appeal saying that it did not have jurisdiction to hear appeals in criminal cases from Malaysia.

Wilberforce, Russell of Killowen, Keith of Kinkel LL
[1979] UKPC 20, [1979] Crim LR 465, [1979] 1 WLR 1463
Bailii

Commonwealth, Crime

Updated: 29 December 2021; Ref: scu.544924

Philip Joshua Rahming v The Queen: PC 20 May 2002

(Bahamas) The case was an appeal against a conviction for murder on the basis of the incorrect direction from the judge as to manslaughter and murder, and the failure to give a lies direction.
Held: The failure to bring the defendant before a court within 48 hours did not affect the weight of the evidence. The prosecution had not asked the jury to rely upon the fact of the defendant’s lies. The judge had failed to distinguish between acts intending causing unlawful bodily harm and those intending causing death. He left the jury with the impression that a reckless killing could suffice for murder. The conviction for murder was quashed and one for manslaughter substituted.

Lord Slynn of Hadley Lord Steyn Lord Hutton Lord Hobhouse of Woodborough Lord Rodger of Earlsferry
[2002] UKPC 23, (Appeal No 33 0f 2001)
PC, PC, Philip Joshua Rahming ‘ target=’_n’>PC, Bailii, PC
Evidence Act 1996 (Bahamas) 20
England and Wales
Citing:
Cited – Regina v Burge and Pegg CACD 1996
The court considered the circumstances under which the defendant had lied, and Lucas direction was to be given: ‘As there seems to be at the moment a tendency in one appeal after another to assert that there has been no direction, or an inadequate . .
Cited – Regina v Goodway CACD 11-Aug-1993
The judge is to give a ‘Lucas’ direction, if the fact of a defendant’s lie is to be relied upon by the prosecution to challenge the veracity of other evidence given by the defendant. . .
Cited – Regina v Lucas (Ruth) CACD 1981
People sometimes tell lies for reasons other than a belief that they are necessary to conceal guilt.
Four conditions were identified which must be satisfied before a defendant’s lie could be seen as supporting the prosecution case:-
(1) . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Evidence

Updated: 29 December 2021; Ref: scu.171197

Director of Public Prosecutions v Nelson: PC 16 Feb 2015

Court of Appeal of the Eastern Caribbean Supreme Court (Antigua and Barbuda) Both prosecutor and dfeendant appealed against a decision of the remitting court to substitute a conviction for manslaughter for an original conviction for murer. The defendant had argued self defence, inconsistent with provocation, but the appellate court had made its decision on the basis of evidence of provocation.
Held: Murderous intent (of either kind) is in no sense inconsistent with the partial defence of provocation. Indeed, provocation assumes murderous intent. It only arises when the essential elements of murder are all proved, including murderous intent, and: ‘The Board is satisfied that when the whole of the summing up is examined and the passage cited by the Court of Appeal is taken in context, the judge plainly did not fall into the error supposed by that court. There was no danger that the jury might think that murderous intent negated provocation.’
The defendant argued that the judge’s direction as to provocation did not sufficiently explain to the jury that provocation means, in law, things said or done which cause the defendant to have murderous intent. As to this, the Board answered that: ‘It is certainly true that the legal concept of provocation is of provocative behaviour which leads the defendant to do as he did, that is to say to kill the deceased. In the present case, the judge’s repeated directions that the question for the jury was whether provocative behaviour led the defendant ‘to do as he did’ amply made this clear.’

Lady Hale, Lord Hughes, Lord Toulson
[2015] UKPC 7
Bailii
Citing:
Cited – Regina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .

Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 27 December 2021; Ref: scu.542756

Seetohul v Omni Project Ltd: PC 3 Feb 2015

(Mauritius) Dr Seetohul was employed as an Education Officer by Omni Projects Ltd. He brought a claim against the defendants in the Industrial Court, alleging that he had been unlawfully dismissed. He claimed three months’ remuneration (about 49000 rupees), coupled with severance allowance at the punitive rate of six times the norm which is prescribed in certain circumstances by statute (about 470,000 rupees). He succeeded before the Industrial Court, but failed in the Supreme Court, which allowed the defendants’ appeal and reversed the first instance decision. The plaintiff appeals further to the Board.

Lady Hale, Lord Wilson, Lord Hughes
[2015] UKPC 5
Bailii

Commonwealth, Employment

Updated: 27 December 2021; Ref: scu.542234

The Presidential Insurance Company Ltd v Mohammed and Others: PC 3 Feb 2015

(Trinidad and Tobago) The principal issue in the appeal is whether the MVIA enables someone who has suffered property damage caused by a motor vehicle accident to obtain indemnity from the vehicle owner’s insurers when the driver, who caused the damage, was not authorised by the insurance policy to drive the vehicle.

Lord Mance, Lord Wilson, Lord Carnwath, Lord Toulson, Lord Hodge
[2015] UKPC 4
Bailii

Commonwealth, Insurance, Road Traffic

Updated: 27 December 2021; Ref: scu.542233

Nilon Ltd and Another v Royal Westminster Investments Sa and Others: PC 21 Jan 2015

(British Virgin Islands) The primary questions which were the subject of argument were (1) whether a claimant (A) can bring proceedings for rectification of the share register of a company (D1) when the reason for rectification is an untried allegation that a defendant (D2) has agreed to allot shares in D1 to A; and (2) if so, whether D2 is a necessary and proper party to A’s claim against D1 and whether the BVI is an appropriate forum for A’s claim against D.

Lord Mance, Lord Sumption, Lord Carnwath, Lord Toulson, Lord Collins
[2015] UKPC 2
Bailii

Commonwealth, Company, Equity, Jurisdiction

Updated: 27 December 2021; Ref: scu.541689

John Pfeiffer Pty Limited v Rogerson: 16 Apr 1999

(High Court of Australia) The double actionability rule should be discarded with regard to claims brought in an Australian court in respect of a civil wrong arising out of acts or omissions that occurred wholly within one or more of the law areas of the Commonwealth of Australia.

[2000] HCA 36, (2000) 203 CLR 503
Austlii
Australia
Cited by:
Cited – Harding v Wealands CA 17-Dec-2004
The claimant sought damages here for a road traffic accident which had occurred in Australia. The defendant was working in England. The defendant argued that the law of New South Wales applied.
Held: The general rule in section 11 was not to . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Jurisdiction, Torts – Other

Updated: 21 December 2021; Ref: scu.222523

Burnie Port Authority v General Jones Property Ltd: 1994

(High Court of Australia) The court treated the rule in Rylands v Fletcher as absorbed by the principles of ordinary negligence. The majority were influenced by the difficulties of interpretation and application to which the rule had given rise, the progressive weakening of the rule by judicial decision, by recognition that the law of negligence had been very greatly developed and expanded since Rylands v Fletcher was decided and by a belief that most claimants entitled to succeed under the rule would succeed in a claim for negligence anyway: ‘Where a duty of care arises under the ordinary law of negligence, the standard of care exacted is that which is reasonable in the circumstances. It has been emphasised in many cases that the degree of care under that standard necessarily varies with the risk involved and that the risk involved includes both the magnitude of the risk of an accident happening and the seriousness of the potential damage if an accident should occur . . even where a dangerous substance or dangerous activity of a kind which might attract the rule in Rylands v Fletcher is involved, the standard of care remains ‘that which is reasonable in the circumstances, that which a reasonably prudent man would exercise in the circumstances’: Adelaide Chemical and Fertiliser Co Ltd v Carlyle [1940] 64CLR514 at page 523. In the case of such substances or activities, however, a reasonably prudent person would exercise a higher degree of care. Indeed, depending upon the magnitude of the danger, the standard of ‘reasonable care’ may involve ‘a degree of diligence so stringent as to amount practically to a guarantee of safety”

Mason CJ
[1994] 120 ALR 42, (1994) 179 CLR 520
Australia
Citing:
Explained – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

Cited by:
Cited – Transco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
Cited – LMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
Cited – Stannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Nuisance, Negligence

Updated: 21 December 2021; Ref: scu.188013

Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal: PC 19 Jun 2002

PC (Trinidad and Tobago) Disciplinary proceedings had commenced against the appellant, the chief magistrate, but the time limits had not been followed. The appellant argued that the time limits were mandatory.
Held: When considering time limits, it is better to avoid words such as ‘mandatory’ and ‘directory’. Bearing in mind the minimal impact of the failures on the appellant, his appeal was dismissed.
Tipping J: ‘At the outset their Lordships observe that it seems highly unlikely that the Commission can have intended that breaches of time limits at the investigation stage would inevitably prevent it from discharging its public function and duty of inquiring into and, if appropriate, prosecuting relevant indiscipline or misconduct. A self-imposed fetter of such a kind on the discharge of an important public function would seem inimical to the whole purpose of the investigation and disciplinary regime.’ and ‘. . . If a complaint is made about the non-fulfilment of a time limit the giving of relief will usually be discretionary. This discretionary element to which Lord Hailsham referred [in the London and Clydeside Estates case] underlines the fact that problems arising from breach of time limits and other like procedural flaws are not generally susceptible of rigid classification or black and white a priori rules. With this in mind their Lordships note that in the present case the delays were in good faith, they were not lengthy and they were entirely understandable. The appellant suffered no material prejudice; no fair trial considerations were or could have been raised, and no fundamental human rights are in issue.’

Lord Bingham of Cornhill Lord Steyn Lord Hope of Craighead Lord Scott of Foscote The Rt. Hon. Justice Tipping
(Appeal No 34 of 2001), [2002] UKPC 34, [2003] 1 LRC 422
PC, Bailii, PC
Citing:
Cited – Wang v Commissioner of Inland Revenue PC 19-Oct-1994
(Hong Kong) At first instance the judge found that the deputy commissioner lacked jurisdiction to make two determinations since he had not done so within a reasonable time required by the imperative language of the statute. The Court of Appeal . .
Cited – New Zealand Institute of Agriculture Science Inc v Ellesmere County 1976
(New Zealand High Court) Cooke J said: ‘Whether non-compliance with a procedural requirement is fatal turns less on attaching a perhaps indefinite label to that requirement than on considering its place in the scheme of the Act or regulations and . .

Cited by:
Cited – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Commonwealth

Updated: 21 December 2021; Ref: scu.174493

Archer v Cutler: 1980

(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental capacity was voidable at his option not only if the other party knew of or ought to have appreciated his unsoundness of mind, but also if the contract ‘was unfair to the person of unsound mind’. There were no considerations of policy or principle precluding the court from holding that a contract entered into by a person of unsound mind is voidable at his option if it is proved either that the other party knew of his unsoundness of mind or, whether or not he had that knowledge, the bargain was unfair. The court considered the idea of an unfair cotract in English law: English law on the subject is ill-defined. The case of Imperial Loan Company v. Stone [ 1892] 1 Q.B. 599 widely accepted as being a statement of the law on avoidance of contracts made with persons of unsound mind would, save in the judgment of Lopes LJ, seem to regard unfairness of the contract as being of no moment. Proof of unsoundness of mind and the other party’s knowledge of that unsoundness alone will avoid the contract. But the passage cited from the judgment of Lopes LJ. and the dicta of Pollock CB. in Molton v. Camroux (1848) 2 Exch 487 of Patteson J. on appeal in the same case, of Sir Ernest Pollock MR. in York Glass Company v. Jubb [1924] 131 L.T. Rep. 559 and of Sargant LJ. in the same case would suggest that proof of unfairness of a bargain entered into by a person of unsound mind, even though that unsoundness be not known to the other party, will suffice to avoid it.’ and ‘I find nothing in policy or principle to prevent me from holding that a contract entered into by a person of unsound mind is voidable at his option if it is proved either that the other party knew of his unsoundness of mind or, whether or not he had that knowledge, the contract was unfair to the person of unsound mind.’

[1980] 1 NZLR 386
Citing:
Cited – Molton v Camroux CEC 2-Jan-1848
The buyer of annuities from a company was of unsound mind. The company had acted in its normal course of business.
Held: The court asked ‘whether the mere fact of unsoundness of mind, which was not apparent, is sufficient to vacate a fair . .
Cited – Molton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .
Cited – Earl of Aylesford v Morris 1873
One party to a contract knew of the other’s insanity.
Held: The contract of a lunatic is voidable not void. ‘Fraud’ in equity does not mean, and nor is it confined to, deceit; ‘it means an unconscientious use of power arising out of the . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .
Cited – York Glass Co Ltd v Jubb 1924
The defendant denied liability under contract, after the vendor brought an action against against the committee of his estate as a person of unsound mind. He said that the fact that he was of unsound mind was known to vendor, and later that the . .
Cited – York Glass Co Ltd v Jubb CA 1925
The vendor sought to enforce a contract. The court had rejected the defendant’s plea first that the vendor knew of his incapacity, and that therefore the contract was void, and that second, the contract should not be enforced in equity because of . .
Cited – Hardman v Falk 1955
Canada – ‘The contract of a lunatic is voidable not void: see York Glass Co. v. Jubb, Courts of equity will not interfere if a contract with a lunatic is made in good faith without any knowledge of the incapacity of the lunatic and no advantage is . .

Cited by:
Cited – Hart v O’Connor PC 22-Apr-1985
Effect of insanity on making of contract
(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Updated: 18 December 2021; Ref: scu.252445

In re Douglas: 1928

(New South Wales) The court considered the application of the rule against self dealing as it applied to trustees’ wives: ‘the Court of Equity would presume that the contract was for the benefit of the trustee, and evidence would be required to displace this presumption.’

[1928] 29 SR (NSW) 48
Citing:
Cited – Burrell v Burrell’s Trustees SCS 1915
The Court of Session considered the applicability of the rule against self dealing as it applied to the wives of trustees. The wives in question were wealthy members of the Burrell shipping family who in each case were ‘capable business women . .

Cited by:
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts

Updated: 18 December 2021; Ref: scu.220736

Tanti v Carlson: 1948

(Victoria – Australia) The court considered the application of the rule against self dealing for trustees as it applied to wives: ‘The matrimonial relationship then becomes merely a ground of suspicion, and it becomes necessary to consider whether that suspicion has been dispelled in the present case.’

[1948] VLR 401
Citing:
Cited – Burrell v Burrell’s Trustees SCS 1915
The Court of Session considered the applicability of the rule against self dealing as it applied to the wives of trustees. The wives in question were wealthy members of the Burrell shipping family who in each case were ‘capable business women . .

Cited by:
Cited – Newgate Stud Company, Newgate Stud Farm Llc v Penfold, Penfold Bloodstock Limited ChD 21-Dec-2004
The claimants sought damages from the defendant. He had been employed to manage their horse-racing activities, and it was alleged that he had made secret profits. The defendant denied any dishonesty, saying all matters were known to the deceased . .

Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 18 December 2021; Ref: scu.220735

Hart v O’Connor: PC 22 Apr 1985

Effect of insanity on making of contract

(New Zealand) The parties disputed the effect in law of an agreement for the sale of land. The transferor had proved not to be of sound mind.
Held: The validity of a contract entered into by a lunatic who is ostensibly sane is to be judged by the same standards as a contract by a person of sound mind, and is not voidable by the lunatic or his representatives by reason of ‘unfairness’ unless such unfairness amounts to equitable fraud which would have enabled the complaining party to avoid the contract even if he had been sane.
Lord Brightman: ‘In the opinion of their Lordships it is perfectly plain that historically a court of equity did not restrain a suit at law on the ground of ‘unfairness’ unless the conscience of the plaintiff was in some way affected. An unconscionable bargain in this context would be a bargain of an improvident character made by a poor or ignorant person acting without independent advice which cannot be shown to be a fair and reasonable transaction. ‘Fraud’ in its equitable context does not mean, or is not confined to, deceit; ‘it means an unconscientious use of power arising out of the circumstances and conditions’ of the contracting parties; Earl of Aylesford v Morris (1873) L.R. 8 Ch. App. 484, 491. It is victimisation, which can consist either of the active extortion of a benefit or the passive acceptance of a benefit in unconscionable circumstances.’
To accept the proposition enunciated in Archer v. Cutler that a contract with a person ostensibly sane but actually of unsound mind can be set aside because it is ‘unfair’ to the person of unsound mind in the sense of contractual imbalance, is unsupported by authority, is illogical.

Lord Brightman, Lord Scarman, Lord Bridge of Harwich, Sir Denys Buckley
[1985] 1 AC 1004, [1985] UKPC 1
England and Wales
Citing:
Cited – Molton v Camroux CEC 2-Jan-1848
The buyer of annuities from a company was of unsound mind. The company had acted in its normal course of business.
Held: The court asked ‘whether the mere fact of unsoundness of mind, which was not apparent, is sufficient to vacate a fair . .
Cited – Molton v Camroux CExC 1848
A person of unsound mind bought an annuity from a life assurance society. The society granted the annuities in the ordinary course of its business. The contracts were challenged.
Held: The court referred to the argument that a plea of insanity . .
Cited – Archer v Cutler 1980
(New Zealand) The purchaser of land sought specific performance of the contract. The vendor and purchaser had been neighbours. The neighbour needed part of the vendor’s land for access.
Held: A contract made by a person of insufficient mental . .
Cited – Earl of Aylesford v Morris 1873
One party to a contract knew of the other’s insanity.
Held: The contract of a lunatic is voidable not void. ‘Fraud’ in equity does not mean, and nor is it confined to, deceit; ‘it means an unconscientious use of power arising out of the . .
Cited – Imperial Loan Co v Stone CA 1892
Contract without Capacity – Voidable not Void
A person of unsound mind was sued on a promissory note. He had signed it as surety. The jury found that he was insane when he signed the note but there was no finding as to the creditor’s knowledge of such insanity. The judge entered a verdict . .
Cited – McLaughlin v Daily Telegraph Newspaper Co. Ltd 15-Jul-1904
(High Court of Australia) The court considered the law on the effect of mental incapacity on a contract in the two cases Imperial Loan, and Molton v Camroux: ‘The principle of the decision seems, however, to be the same in both cases, which, in our . .
Cited – York Glass Co Ltd v Jubb 1924
The defendant denied liability under contract, after the vendor brought an action against against the committee of his estate as a person of unsound mind. He said that the fact that he was of unsound mind was known to vendor, and later that the . .
Cited – York Glass Co Ltd v Jubb CA 1925
The vendor sought to enforce a contract. The court had rejected the defendant’s plea first that the vendor knew of his incapacity, and that therefore the contract was void, and that second, the contract should not be enforced in equity because of . .
Cited – Hardman v Falk 1955
Canada – ‘The contract of a lunatic is voidable not void: see York Glass Co. v. Jubb, Courts of equity will not interfere if a contract with a lunatic is made in good faith without any knowledge of the incapacity of the lunatic and no advantage is . .
Cited – Tremills v Benton 1892
A lunatic who appeared to be sane, entered into a contract. His representatives sought to set aside deeds of gift by the lunatic to the defendants. The administrator sought to set aside the deeds on the ground that their execution was obtained by . .

Cited by:
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Portman Building Society v Dusangh and Others CA 19-Apr-2000
The defendant sought to set aside an order for possession under a mortgage.
Held: Where a case was strong enough on its face in terms of conduct and terms, unconscionable conduct could be inferred if there was no explanation offered to . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .

Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth, Health

Updated: 18 December 2021; Ref: scu.186684

Davis v Shaughnessy: PC 1932

The grant by the committee of special leave to appeal is discretionary.

Viscount Dunedin
[1932] AC 106
Cited by:
Cited – Lopes v Chettiar PC 1968
(Malaysia) The petitioner had an appeal as of right to the Judicial Committee from the Federal Court of Malaysia under section 74(1)(a)(ii). The Court refused leave to appeal holding that the appeal had no merits and was bound to fail and the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 18 December 2021; Ref: scu.184493

Yiacoub and Another v The Queen: PC 10 Jul 2014

The Board was asked: ‘whether the separate court system established by the Courts (Constitution and Jurisdiction) Ordinance 2007 for the Sovereign Base Areas of Cyprus complies in one particular with the common law requirement that justice must not only be done, but clearly be seen to be done. ‘

Lord Neuberger, Lord Mance, Lord Clarke, Lord Hughes, Lord Toulson
[2014] UKPC 22
Bailii

Commonwealth, Human Rights

Updated: 16 December 2021; Ref: scu.534088

Shand v The Queen: PC 27 Nov 1995

(Jamaica) The case for the defence was that the identification witnesses were deliberately lying and it was not suggested that they were mistaken, so that the sole line of defence was fabrication. The identification evidence was exceptionally good and the court applied the test in Domican v R, that the jury acting reasonably and properly would have returned the same verdict had the judge given them the appropriate Turnbull warning and explanation and that no miscarriage of justice had occurred.
Held: A Turnbull identification direction can be briefer if it was an attack on credibility. Lord Slynn said: ‘no precise form of words need be used so long as the essential elements of the warning are given to the jury’, and ‘the cases in which the warning can be entirely dispensed with must be wholly exceptional, even where credibility is the sole line of defence. In the latter type of case the judge should normally, and even in the exceptional case would be wise to tell the jury in an appropriate form to consider whether they are satisfied that the witness was not mistaken in view of the danger of the mistake referred to in R v Turnbull [1977] Q.B. 224.’

Lord Slynn
Times 29-Nov-1995, [1996] 1 WLR 67, [1995] UKPC 46
Bailii
Citing:
Cited – Domican v The Queen 1992
(Australia) Mason CJ said: ‘A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to . .

Cited by:
Cited – Phipps v The Director of Public Prosecutions and Another PC 27-Jun-2012
phipps_dppPC2012
(Jamaica) The defendant appealed against his conviction for murder. He complained that he had been prejudiced because the jury were told that he had been produced from custody, and one of his witnesses was produced in court in chains, thus . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Commonwealth

Updated: 16 December 2021; Ref: scu.89184

Queen v Beckford and Another: PC 30 Jun 1993

The court rehearsed the Australian cases on the dangers of relying upon identification evidence, the need for proper jury directions, and the dangers of a court of appeal maintaining a conviction where an inadequate direction had been given relying upon other evidence in the case. It was still the judge’s duty to give a Turnbull warning even if the defence was not relying on the possibility of mistake, the thrust of the defence simply being to challenge the veracity of the witness. A direction was given on the award of costs of an applicant to the Privy Council.

Times 30-Jun-1993, (1993) 97 Cr App R 409
Commonwealth
Citing:
Cited – Domican v The Queen 1992
(Australia) Mason CJ said: ‘A trial judge is not absolved from his or her duty to give general and specific warnings concerning the danger of convicting on identification evidence because there is other evidence, which, if accepted, is sufficient to . .

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.

Criminal Practice, Costs, Commonwealth

Updated: 16 December 2021; Ref: scu.89843

Pfizer Ltd v Medimpex Jamaica Ltd and Another: PC 2 Jul 2014

The parties disputed whether the actual applicant for the patent, being an attorney and inventor had applied as law agent for the appellant or as the inventor.

Lord Neuberger, Lord Sumption, Lord Hughes, Lord Hodge, Sir David Kitchin
[2014] UKPC 20
Bailii

Commonwealth, Intellectual Property, Legal Professions

Updated: 16 December 2021; Ref: scu.533887

Supercool Refrigeration and Air Conditioning v Hoverd Industries Ltd: 1994

(New Zealand) The court noted a greater reluctance in Australia and Ireland than in England to accept the creation of a fixed charge over present and future book debts.
Tompkins J said:’ a requirement to pay the proceeds of the book debts into the company’s account without any restriction on how the company may use those proceeds does not give effective possession of those proceeds to the Bank. It does not, without more, fasten the charge onto those proceeds. Supercool was free to deal with those proceeds except in the two respects stated, unless and until the BNZ intervened in a manner that would effectively inhibit that freedom. This conclusion is entirely consistent with the circumstances as they existed at the time the debenture was entered into. Supercool was about to take over part of the business of the old Supercool company. It was the clear intention of Supercool and the BNZ that Supercool was then going to trade in the normal way in the course of which it would acquire book and other debts and would be using the proceeds of those debts in the normal course of its business. If it were not able to do so freely, it would not be able to trade. And the BNZ was well aware that that was what Supercool was about to do – the whole object of the finance facility was to enable Supercool to commence business. There was no intervention by the Bank that in any way restricted this freedom to carry on its business until the Bank appointed the receiver on 10 March 1992. It follows that the charge over the book and other debts was a floating charge until it crystallised on that date. It also follows that, for the reasons I have expressed, I do not follow the decision of Slade J in Siebe Gorman.’

Tompkins J
[1994] 3 NZLR 300
England and Wales
Citing:
Not Followed – Siebe Gorman and Co Ltd v Barclays Bank Ltd ChD 1979
It was possible to create a fixed charge over present and future book debts and on its true construction, the debenture granted to Barclays Bank Ltd in this case had done so. If the chargor of book debts, having collected the book debts, ‘[had] had . .
Cited – In re Yorkshire Woolcombers Association Ltd CA 2-Jan-1903
Nature of Company’s Debenture Charge
The court considered the nature of a debenture charge. Romer LJ said: ‘I certainly do not intend to attempt to give an exact definition of the term ‘floating charge’, nor am I prepared to say that there will not be a floating charge within the . .
Cited – Illingworth v Houldsworth HL 1904
A clause in a floating charge allowing a company to continue to trade in the assets charged: ‘contemplates not only that it should carry with it the book debts which were then existing, but it contemplates also the possibility of those book debts . .
Cited – In Re Keenan Bros Ltd 1986
(Supreme Court of the Republic of Ireland) A debenture conferred a fixed charge on book debts. It specifically provided that withdrawals from the account to which the proceeds of the book debts had to be credited might only be made with the prior . .

Cited by:
Approved – National Westminster Bank Plc v Spectrum Plus Ltd and others ChD 15-Jan-2004
The company granted a debenture to the claimant purporting to secure its book debts. The company went into liquidation. The liquidator challenged the bank’s charge.
Held: Siebe was wrongly decided. The charge was ineffective over the book . .
Approved – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Banking

Updated: 15 December 2021; Ref: scu.191966

Confessor Valdez Franco v The Queen: PC 14 Aug 2001

(Antigua and Barbuda) The appellant had been convicted of murder, with his defence of self-defence rejected by the jury. His defence was self-defence. No defence of provocation was advanced at trial and the trial judge gave no direction to the jury on provocation. It was accepted that there was some evidence of provocation, but this had not been left for the jury. On appeal, the court had said that this should have been left for the jury, but would also have been rejected. Statute in Antigua required evidence of provocation, once raised to be left to the jury. In the circumstances the appeal court had been wrong to pre-empt what the jury might have decided. A conviction of manslaughter was substituted, and the matter was remitted for sentence on that basis. The clear effect of s9C was to deny to trial judges the power previously exercisable to withdraw the issue of provocation from the jury where there is evidence potentially capable of satisfying the subjective condition, even if the judge considers that there is no evidence which could lead a reasonable jury to conclude that the provocation was enough to make a reasonable man do as the particular defendant did. As to the application of the proviso allowing a conviction to stand despite a misdirection: ‘The Board would accept that there will be cases where the proviso may properly be applied even where the objective issue should have been but was not left to the jury.’
Lord Bingham: ‘In the opinion of the Board, the reasoning of the Court of Appeal in R v Cox, above, does not give adequate weight to the intention of Parliament expressed in section 3 of the 1957 Act and its overseas equivalents. The starting point must always be that in a trial on indictment the jury is the body to which the all-important decisions on the guilt of the accused are entrusted. This does not mean that every deviation from procedural regularity and legal correctness vitiates a jury’s verdict of guilty. That would impose an unattainable standard of perfection and frustrate to an unacceptable extent the effective administration of criminal justice. But it does mean that an appellate court, which is not the trial tribunal, should be very cautious in drawing inferences or making findings about how the jury would have resolved issues which, for whatever reason, were never before it. This is particularly so in the context of section 3, since Parliament has gone out of its way, unusually, to stipulate that resolution of the objective issue, where it properly arises, should be exclusively reserved to the jury. To the extent that an appellate court takes it upon itself to decide that issue it is doing what Parliament has said the jury should do, and section 3 cannot be read as applying only to the trial court. ‘

Lord Bingham of Cornhill
Times 11-Oct-2001, [2001] UKPC 38, Appeal No 70 of 2000
PC, Bailii, PC, PC
Citing:
Cited – Regina v Duffy CCA 1949
The court approved Devlin J’s direction to the jury on the defence of provocation to a charge of murder which had described provocation: ‘Provocation is some act or series of acts done or words spoken by the dead man to the accused which would cause . .

Cited by:
Cited – Van Dongen and Another, Regina v CACD 5-Jul-2005
The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation . .
Cited – Serrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .

Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 13 December 2021; Ref: scu.163306

Vakauta v Kelly: 1989

(High Court of Australia) The majority held that the first instance judge fell on the wrong side of ‘an ill-defined line beyond which the expression by a trial judge of preconceived views about the reliability of particular medical witnesses could threaten the appearance of impartial justice.’
Toohey J said: ‘… when a party is in a position to object but takes no steps to do so that party cannot be heard to complain later that the judge was biased.’

Brennan, Deane and Gaudron JJ
(1989) 167 CLR 569
Australia
Citing:
Appeal from – Vakauta v Kelly 1988
(Supreme Court of New South Wales) The judge had made disparaging remarks about certain doctor witnesses who ‘thought you could do a full day’s work with no arms and no legs.’ Mahoney JA discussed a suggestion of apparent bias, saying: ‘In . .

Cited by:
Cited – Otkritie International Investment Management and Others v Urumov CA 14-Oct-2014
The claimants brought proceedings against several defendants. There had been a series of hearings conducted by a single judge leading to findings that several defendants had been involved in a fraud. The defendants sought recusal of that judge . .
Cited – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – The Conservative and Unionist Party v The Election Commissioner CA 23-Nov-2010
A losing candidate at a local election alleged corrupt and illegal practices relating to the entry of non-existent people on the electoral roll and using postal votes. The Election Commissioner found this proved and the election void, and awarded . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 13 December 2021; Ref: scu.537709

Watcham v Attorney-General of the East Africa Protectorate: PC 1919

The Watchams held land along the bank of the Nairobi River. It had been conveyed to them by the Crown by a certificate under the East African Land Regulations. The certificate gave the area transferred as ’66 3/4 acres, or thereabouts’, but included a description by reference to physical features on the ground which would have resulted in an area of 160 acres. There was evidence that the Watcham family had never occupied the more extensive area, part of which had been occupied without objection from them by someone else.
Held: The evidence was admissible as an aid to construction, to show that the description in the certificate must be ‘falsa demonstratio’. In a conveyancing matter, it may be possible to take into account the subsequent behaviour of the parties to interpret what was intended by the conveyance.

[1919] AC 533
Commonwealth
Cited by:
Doubted – F L Schuler AG v Wickman Machine Tools Sales Limited HL 4-Apr-1973
The parties entered an agreement to distribute and sell goods in the UK. They disagreed as to the meaning of a term governing the termination of the distributorship.
Held: The court can not take into account the post-contractual conduct or . .
Cited – Tower Hamlets v Barrett and Another CA 19-Jul-2005
The defendant tenants appealed an order for them to surrender possession of land which they claimed had been acquired by adverse possession. The buildings, including one which shared a party wall with the building owned by the defendants had been . .
Applied – Neilson v Poole ChD 1969
Significance of Boundary agreements
The parties, neighbours, disputed the boundary between their gardens. In a conveyance of land where the plan is stated to be for identification purposes only, the effect of those words: ‘Seems . . to confine the use of the plan to ascertaining where . .
Supported – Ali v Lane and Another CA 21-Nov-2006
The parties disputed the boundary between their neighbouring plots of land.
Held: In the modern law the conveyance (parchment or not) is undoubtedly the starting point. Where information contained in the conveyance is unclear or ambiguous, it . .
Doubted – Sussex Caravan Parks Ltd v Richardson CA 1961
Harman LJ described the Watcham case: ‘a case which has been long under suspicion of the gravest kind from real property lawyers.’ . .
Doubted – Wickham Tools v Schuler AG HL 1974
Lord Wilberforce referred to the Watcham case as: ‘a precedent which I had thought had long been recognised to be nothing but the refuge of the desperate.’ but ‘Whether in its own field, namely that of interpretation of deeds relating to real . .
Not Followed – Beale v Harvey CA 28-Nov-2003
Land had been divided into three lots on its development, but the site plan did not match the line of a fence actually erected.
Held: The court was not bound by the Watcham case, and would not follow it to allow reference to the later . .
Cited – Piper and Another v Wakeford and Another CA 17-Dec-2008
The parties disputed the boundary between their land.
Held: The judge had been entitled to rely on the evidence he had accepted, and had been entitled to find on the factual basis asserted. . .

Lists of cited by and citing cases may be incomplete.

Land

Updated: 06 December 2021; Ref: scu.228940

Civil Air Transport Incorporated v Central Air Transport Corporation: PC 28 Jul 1952

(Hong Kong) The parties disputed ownership of 40 aircraft on an airfield at Kai Tak. The object of the suit brought by an American corporation was to recover possession of airplanes in Hong Kong which had been sold by the Nationalist Government of China to the plaintiff corporation’s predecessor in interest in December 1949, before the British recognition of the Communist Government.
Held: The validity of the sale was recognized and the claim of the Communist Government to the property was denied by the court since it was shown that the Communist Government had not taken possession of the property and the subsequent recognition was held not to operate retroactively to extinguish the title of the purchaser. Under the (foreign) act of state doctrine

Viscount Simon
[1952] UKPC 25, [1952] 2 Lloyd’s Rep 259, [1952] 2 All ER 733, [1952] 2 TLR 621, [1953] AC 70
Bailii
England and Wales

International

Updated: 05 December 2021; Ref: scu.445967

Ibrahim v The King: PC 6 Mar 1914

(Hong Kong) The defendant was an Afghan subject with the British Army in Hong Kong. He was accused of murder. Having accepted the protection of the British Armed forces, he became subject to their laws. In custody, he was asked about the offence by a senior officer, and admitted the act. He appealed on the basis that the admission was not voluntary, having being made to an officer with authority over him, and should not have been admitted.
Held: The committee was not inclined to enunciate a general rule for admissibility of evidence in such circumstances, this is a matter for the Court of Criminal Appeal. It could only say that any defect must be such as to deprive the accused of a fair trial, before a decision could be set aside. The appellate court should ask whether the summing up contains ‘Something which . . deprives the accused of the substance of fair trial and the protection of the law, or which, in general, tends to divert the due and orderly administration of the law into a new course, which may be drawn into an evil precedent in future.’ and
‘It has long been established as a positive rule of English criminal law, that no statement by an accused is admissible in evidence against him unless it is shewn by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised or held out by a person in authority. The principle is as old as Lord Hale.’

The Lord Chancellor Lord Moulton, Lord Atkinson Lord Sumner, Lord Shaw, Delivered by Lord Sumner
[1914] UKPC 1, [1914] AC 599, [1914] UKPC 16, [1914-15] All ER Rep 874, (1914) 24 Cox CC 174
Bailii, PC, Bailii
Foreign Jurisdiction Act 1890 4(1)
England and Wales
Citing:
Cited – Rex v Thornton 1824
. .
Cited – Rex v Wilde 1835
. .
Cited – Rex v Kerr 1837
. .
Cited – Regina v William Baldry 1852
A police constable, who apprehended a man on a charge of murder, having told him the nature of the charge aganist him, said ‘he need not say any thing to criminate himself – what he did say would he taken down, and used as evidence against him.’ The . .
Cited – Regina v Thompson 1893
No statement by an accused is admissible in evidence against him unless it is shown by the prosecution to have been a voluntary statement, in the sense that it has not been obtained from him either by fear of prejudice or hope of advantage exercised . .
Cited – Regina v Brackenbury 1893
. .
Cited – Rex v Cheverton 1848
. .
Cited – Regina v Pettit 1850
. .
Cited – Regina v Berriman 1854
. .
Cited – Regina v Reason 1872
. .
Cited – Regina v Fennell 1880
. .
Cited – Regina v Gavin 1888
The court excluded a statement made to a constable, who questioned his prisoner in a way that amounted to cross-examination. A constable has no right to ask questions without expressly saying that the answers cannot be relevant evidence. . .
Cited – Regina v Male 1893
The court rejected a statement made by a prisoner in custody to a constable who had cross-examined him, saying merely that the police have no right to manufacture evidence. . .
Cited – Regina v Goddard 1896
The court admitted a statement made by a prisoner in custody to a constable who had cross-examined him. . .
Cited – Regina v Histed 1898
The court excluded the answers of a prisoner in custody, on the authority of R. v. Gavin, saying that the constable was entrapping the prisoner and trying by a trick to set a broken-down case on its legs again. . .
Cited – Rogers v Hawken QBD 1894
(Year unknown) In a case of the admissibility of questions put before arrest, the Divisional Court, (judges not prone to lean against a prisoner)
Held: The statement was admissible and observed that ‘R. v. Male must not be taken as laying down . .
Cited – Regina v Best CCA 1909
Referring to the admissibility of answers to questions put before an arrest, ‘it is quite impossible to say that the fact that a question of this kind has been asked invalidates the trial’. . .
Cited – Regina v Knight and Thayre 1905
Statements were rejected, because they had been obtained from the accused before arrest by means of a long interrogation by a person in authority over him. The court adverted thus to the case of questions put by a constable after arresting:- ‘when . .
Cited – Riel’s Case, ubi supra; ex parte Deeming PC 1892
The Board (PC) has repeatedly treated applications for leave to appeal and the hearing of criminal appeals as being upon the same footing. . .
Cited – Ex parte Macrea PC 1893
The Board cannot give leave to appeal where the grounds suggested could not sustain the appeal itself; nor can it allow an appeal on grounds that would not have sufficed for the grant of permission to bring it. Misdirection, as such, even . .
Cited – Regina v Booth and Jones 1910
Channell J said: ‘the moment you have decided to charge him and practically got him into custody, then, inasmuch as a judge even cannot ask a question or a magistrate, it is ridiculous to suppose that a policeman can. But there is no actual . .
Cited – Rex v Dyson CCA 1908
The court adopted the practice for selecting cases for which leave to appeal should be given which was set down in Makin . .
Cited – Makin v Attorney-General for New South Wales PC 12-Dec-1893
The accused had been charged with the murder of an infant who had been given into their care by the child’s mother after payment of a fee. They appealed after admission of evidence that several other infants had been received by the accused persons . .
Cited – Rex v Norton 1910
Where the trial judge has warned the jury not to act upon the objectionable evidence, the Court of Criminal Appeal under the similar words of the Act, may refuse to interfere, if it thinks that the jury, giving heed to that warning, would have . .
Cited – Rex v Fisher 1910
Where objectionable evidence has been left for the consideration of the jury without any warning to disregard it, the Court of Criminal Appeal quashes the conviction, if it thinks that the jury may have been influenced by it, even though without it . .

Cited by:
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. . .
Cited – Director of Public Prosecutions v Ping Lin PC 1976
The Board was asked whether a statement by the defendant was shown to be voluntary.
Held: A trial Judge faced by the problem should approach the task in a common sense way and should ask himself whether the prosecution had proved that the . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – Regina v Bass CCA 1953
The court considered how to deal with the admission of a statement where the defendant contested its admissibility. Here the defendant said he had not been cautioned before the interview.
Held: It was within the discretion of the judge to . .
Cited – Regina v Mushtaq HL 21-Apr-2005
The defendant was convicted of fraud charges. He sought to have excluded statements made in interview on the basis that they had been obtained by oppressive behaviour by the police. His wife was very seriously ill in hospital and he had made the . .
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Cletus Timothy, Dexter Reid and Sheldon Lewis v The State PC 22-Apr-1999
PC (Trinidad and Tobago) The defendants appealed their convictions for murder. They asserted that the police had extracted confessions by torture, and that other evidence had been obtained by oppression.
Cited – Regina v Rennie CACD 1982
In the course of an interrogation, the detective sergeant, after telling the appellant the gist of the information already possessed by the police, said ‘Do me a favour, this was a joint operation by your family to defraud the bank, wasn’t it?’ and . .
Approve – Customs and Excise Commissioners v Harz and Power; Regina v Harz and Power HL 1967
The rule that a confessional statement is not admissible if it was induced by a fear of prejudice or a hope of advantage exercised or held out by a person in authority applies equally where the inducement does not relate to the actual or . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence, Criminal Practice

Updated: 04 December 2021; Ref: scu.159145

Ramdeen v The State: PC 27 Mar 2014

(Trinidad and Tobago) The appellant challenged his conviction for murder, on the bases that: ‘the judge misdirected the jury on the approach which they were to take to the separate accounts, that he wrongly failed to leave provocation to the jury as a possible defence and that he wrongly failed to direct the jury that the appellant’s good character went not merely to her propensity to act as the prosecution alleged but also to her credibility.’

Lord Neuberger, Lord Mance, Lord Kerr, Lord Sumption, Lord Toulson
[2014] UKPC 7
Bailii

Commonwealth, Crime

Updated: 02 December 2021; Ref: scu.523317

Skelton v Collins: 7 Mar 1966

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

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

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

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Constitutional

Updated: 30 November 2021; Ref: scu.199760

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

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

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

Lists of cited by and citing cases may be incomplete.

Commonwealth, Costs

Updated: 29 November 2021; Ref: scu.181342

Teper v The Queen: PC 1952

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

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

Cited by:
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. . .
Approved – Regina v Kearley HL 3-Jun-1992
Telephone calls which were made to the defendant’s phone asking for drugs, but made after the arrest of the defendant for supplying drugs were inadmissible as hearsay. They were adduced to prove, by implication, the fact that he, as an occupier of . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Updated: 28 November 2021; Ref: scu.222549

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Updated: 28 November 2021; Ref: scu.211405

Smith v Canadian Pacific Railway Company: 1963

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

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

Lists of cited by and citing cases may be incomplete.

Damages

Updated: 23 November 2021; Ref: scu.237515

Jones v Gleeson: 1965

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

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

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

Lists of cited by and citing cases may be incomplete.

Commonwealth, Damages, Personal Injury

Updated: 23 November 2021; Ref: scu.237511

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

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

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

Commonwealth, Land, Equity

Updated: 22 November 2021; Ref: scu.423780

Regina v Rowbotham and others: 1988

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

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

Lists of cited by and citing cases may be incomplete.

Commonwealth, Legal Aid, Criminal Practice

Updated: 21 November 2021; Ref: scu.541393

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

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

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

Commonwealth, Negligence

Updated: 21 November 2021; Ref: scu.516493

Wang v Commissioner of Inland Revenue: PC 19 Oct 1994

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

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

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

Lists of cited by and citing cases may be incomplete.

Income Tax

Updated: 20 November 2021; Ref: scu.90290

Pricewaterhousecoopers v Saad Investments Company Ltd: PC 10 Nov 2014

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

Lord Neuberger, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2014] UKPC 35, [2014] WLR(D) 475
Bailii, WLRD, Bailii Summary
England and Wales
Cited by:
See Also – 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. . .

Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 20 November 2021; Ref: scu.538670

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

Service Outside Rules – Irregular not a Nullity

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

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

Litigation Practice

Updated: 19 November 2021; Ref: scu.445332

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

(Bombay)

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

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 19 November 2021; Ref: scu.422801

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

(British Virgin Islands)

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

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

Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 18 November 2021; Ref: scu.514149