Category: Commonwealth

Singh v Rainbow Court Townhouses Ltd: PC 19 Jul 2018

(Trinidad and Tobago)
Lord Reed, Lord Kerr, Lord Carnwath, Lord Hughes, Lady Black
[2018] UKPC 19
Bailii
England and Wales
Citing:
Cited – Shaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
Cited – Wilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 September 2021; Ref: scu.621122

Kinoo Sons Limited v Bibi Sarah Hossen Abdool and The Conservator of Mortgage: PC 11 Jun 2002

(Mauritius) – Plots of land had been inherited, and were now in the joint ownership of 20 people. Some sought a sale. A sale was ordered, and the resulting award challenged. The contract provided for a right of substitution for the purchasers of the objectors to the sale, but is was suggested that this was merely a referral to a statutory right which would not apply in this case.
Held: A right of substitution is no different from a right of pre-emption, and could be contractual in nature. The right of substitution formed part and parcel of the conditions of sale, notwithstanding that the basis of that right might be wrongly stated.
Appeal No 55 of 2001, [2002] UKPC 30
PC, Bailii, PC
Commonwealth

Updated: 22 September 2021; Ref: scu.172280

Isabella Dilworth (Widow) and Others v The Commissioner for Land and Income Tax and The Commissioner of Stamps: PC 26 Nov 1898

(New Zealand) Lord Watson discussed the meaning of the word ‘include’ in a list in a statute: ‘The word ‘include’ is very generally used in interpretation clauses in order to enlarge the meaning of words or phrases occurring in the body of the statute; and when it is so used, these words or phrases must be construed as comprehending, not only such things as they signify according to their natural import, but also those things which the interpretation clause declares that they shall include. But the word ‘include’ is susceptible of another construction, which may become imperative, if the context of the Act is sufficient to show that it was not merely employed for the purpose of adding to the natural significance of the words or expressions defined. It may be equivalent to ‘mean and include’ and in that case it may afford an exhaustive explanation of the meaning which, for the purposes of the Act, must invariably be attached to these words or expressions’.
Lord Watson
[1898] UKPC 61, [1898] UKPC 62
Bailii, Bailii
England and Wales
Cited by:
Cited – National Dock Labour Board v John Bland and Company Ltd and others HL 25-May-1971
The parties disputed whether the timber companies with yards adjacent to the regulated ports were in those Ports so as to make their workers ‘dock workers’. Timber would be unloaded from ships and stored within the docks, before, when needed, it . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.417192

Grant v Australian Knitting Mills: PC 21 Oct 1935

(Australia) The Board considered how a duty of care may be established: ‘All that is necessary as a step to establish a tort of actionable negligence is define the precise relationship from which the duty to take care is deduced. It is, however, essential in English law that the duty should be established; the mere fact that a man is injured by another’s act gives in itself no cause of action. If the act is deliberate, the party injured will have no claim in law even though the injury was intentional so long as the other party is merely exercising a legal right; if the act involves lack of due care, again no case of actionable negligence will arise unless the duty to be careful exists.’ and ‘the appellant is not required to lay his finger on the exact person in all the chain who was responsible, or specify what he did wrong. Negligence is found as a matter of inference from the existence of the defect taken in connection with all the known circumstances’
Lord Wright said: ‘Mr. Greene further contended on behalf of the manufacturers that if the decision in Donoghue’s case [1932] AC 562, 591, were extended even a hair’s-breadth, no line could be drawn, and a manufacturer’s liability would be extended indefinitely. He put as an illustration the case of a foundry which had cast a rudder to be fitted on a liner: he assumed that it was fitted and the steamer sailed the seas for some years: but the rudder had a latent defect due to faulty and negligent casting, and one day it broke, with the result that the vessel was wrecked, with great loss of life and damage to property. He argued that if Donoghue’s case were extended beyond its precise facts, the maker of the rudder would be held liable for damages of an indefinite amount, after an indefinite time, and to claimants indeterminate until the event. But it is clear that such a state of things would involve many considerations far removed from the simple facts of this case. So many contingencies must have intervened between the lack of care on the part of the makers and the casualty that it may be that the law would apply, as it does in proper cases, not always according to strict logic, the rule that cause and effect must not be too remote: in any case the element of directness would obviously be lacking. Lord Atkin deals with that sort of question in Donoghue’s case where he refers to Earl v. Lubbock [1905] 1 K.B. 253, 259: he quotes the commonsense opinion of Mathew L.J.: ‘It is impossible to accept such a wide proposition, and, indeed, it is difficult to see how, if it were the law, trade could be carried on.’
In their Lordships’ opinion it is enough for them to decide this case on its actual facts.’
Lord Wright also said: ‘a thing is sold by description, though it is specific, so long as it is sold not merely as the specific thing, but as a thing corresponding to a description ‘
Lord Wright
[1935] All ER Rep 209, [1936] AC 85, 105 LJPC 6, 154 LT 185, [1935] UKPC 2, [1935] UKPC 62
Bailii, Bailii
Australia
Cited by:
Cited – Hedley Byrne and Co Ltd v Heller and Partners Ltd HL 28-May-1963
Banker’s Liability for Negligent Reference
The appellants were advertising agents. They were liable themselves for advertising space taken for a client, and had sought a financial reference from the defendant bankers to the client. The reference was negligent, but the bankers denied any . .
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .
Cited – Watson v Fram Reinforced Concrete Co (Scotland) Ltd HL 1960
A workman had been injured through the breaking of a defective part in the machine with which he was working. He brought an action of damages against his employers, and later convened as second defenders the manufacturers of the machine, who had . .
Cited – Marc Rich and Co Ag and Others v Bishop Rock Marine Co Ltd and Others HL 6-Jul-1995
A surveyor acting on behalf of the classification society had recommended that after repairs specified by him had been carried out a vessel, the Nicholas H, should be allowed to proceed. It was lost at sea.
Held: The marine classification . .
Cited – Harlingdon and Leinster Enterprises Ltd v Christopher Hull Fine Art Ltd CA 15-Dec-1989
The defendant auctioneer sold a painting to the plaintiff which turned out to be a forgery. The plaintiff appealed against a finding that it had not relied upon the attribution, saying that there had been a breach of the requirement that the paintig . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 September 2021; Ref: scu.216360

Flowers v The Queen: PC 30 Oct 2000

(Jamaica) Where a defendant claimed that his constitutional right to a trial within a reasonable time had been infringed, it was correct for the appellate courts to take account of the fact that it remained clear that the defendant was guilty of a very serious offence. In this case it was appropriate to substitute a conviction of. non-capital murder for capital murder because of errors in the summing up and discrepancies in the prosecution evidence. The duty rests on the court system to ensure that on a retrial counsel for the defence is provided with the transcript of the first trial, or relevant part of it.
Lord Hutton distinguished Darmalingum, saying that the more appropriate approach was to take account of all factors which had been discussed before their Lordships and notwithstanding the lengthy and very regrettable delay in that case, he came to the conclusion that a conviction should not be quashed by reason of delay.
Times 01-Dec-2000, [2000] 1 WLR 2396, Appeal No 54 of 1999, [2000] UKPC 41
Bailii, PC, PC
England and Wales
Cited by:
Distinguished – Mills v HM Advocate and Another PC 22-Jul-2002
(The High Court of Justiciary) The defendant appealed on the basis that the delay in the sentencing process had resulted in an infringement of his human rights.
Held: The appeal itself had been without merit. The delay had been to such an . .
Cited – Boodram v The State PC 10-Apr-2001
(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to . .
Cited – J, Regina v CACD 2-Jul-2001
Orse Attorney General’s Reference No 2 of 2001
The AG sought to appeal from the decision that an indictment against the seven defendants should be stayed on the ground that there had been a breach of Article 6(1). They were accused of . .

Lists of cited by and citing cases may be incomplete.
Updated: 05 September 2021; Ref: scu.159431

Bank of New South Wales v Milvain: 1884

The farmer customer’s cheque had not been met by the bank, despite his having adequate funds to meet it. The bank appealed against the award of damages to the customer’s reputation.
Held: The customer, as a farmer, was not a trader, and could recover only a nominal award for damage to reputation.
(1884) 10 VLR 3
Australia
Cited by:
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Updated: 06 September 2021; Ref: scu.495212

Campbell v Hamlet (as executrix of Simon Alexander): PC 25 Apr 2005

(Trinidad and Tobago) The appellant was an attorney. A complaint was made that he had been given money to buy land, but neither had the land been conveyed nor the money returned. The complaint began in 1988, but final speeches were not heard until 1996, when the findings were produced. He was found guilty of professional misconduct. His appeal failed. He now appealed saying again that the misconduct if any was not professional misconduct and that the delay was unreasonable, and that the Court of Appeal had applied the wrong civil standard of proof.
Held: The criminal standard of proof is the correct standard to be applied in all disciplinary proceedings concerning the legal profession. That is the standard which had been applied both by the disciplinary committee and by the Court of Appeal. The evidence established the offence to either standard. The only injustice caused by the deplorable delay was the failure to repay the money to the estate of the deceased. Unlike in Goose the committee had full transcripts of the evidence, and therefore the quality of the decision was not undermined by the delay. The appeal failed.
Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood, Sir Swinton Thomas
[2005] UKPC 19, [2005] 3 All ER 1116
Bailii, PC, PC
England and Wales
Citing:
Cited – Bhandari v Advocates Committee PC 1956
Complaints of professional misconduct against a member of a legal profession are to be proved to the criminal standard. Lord Tucker said: ‘With regard to the onus of proof the Court of Appeal [for East Africa] said: ‘We agree that in every . .
Cited – In Re A Solicitor QBD 13-May-1992
In disciplinary proceedings before the Solicitors Disciplinary Tribunal, allegations must be proved to the criminal standard, and certainly so where the allegations are serious and may result in suspension or disqualification. Hearsay evidence . .
Cited – Clingham (formerly C (a minor)) v Royal Borough of Kensington and Chelsea; Regina v Crown Court at Manchester Ex parte McCann and Others HL 17-Oct-2002
The applicants had been made subject of anti-social behaviour orders. They challenged the basis upon which the orders had been made.
Held: The orders had no identifiable consequences which would make the process a criminal one. Civil standards . .
Cited – B v Chief Constable of Avon and Somerset Constabulary QBD 5-Apr-2000
The defendant appealed the making of a sex offender order under 1998 Act. The justices had found that the defendant was a sex offender within section 2(1)(a) and that he had acted on a number of occasions in a way which brought him within section . .
Cited – Gough and Another v Chief Constable of Derbyshire CA 20-Mar-2002
The appellants challenged the legality under European law of orders under the Act restricting their freedom of movement, after suspicion of involvement in football violence.
Held: Although the proceedings under which orders were made were . .
Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Goose v Wilson Sandford and Co and Mainon CA 13-Feb-1998
A judge was properly criticised for failing to write up a judgment when the witness’ evidence was still fresh in his mind. A two year delay required a re-trial.
Peter Gibson LJ explained the potential effect of delay on the formulation and . .
Cited – Boodhoo, Jagram, (suing on behalf of themselves and the Sanatan Dharma Sudhar Sadha) v The Attorney General of Trinidad and Tobago PC 1-Apr-2004
PC (Trinidad and Tobago) The complainant said that his constitutional rights had been infringed by the court’s delay. Proceedings had begun in 1987 for redress with regard to a land dispute. There was substantial . .

Cited by:
Cited – AN, Regina (on the Application of) v Mental Health Review Tribunal (Northern Region) and others CA 21-Dec-2005
The appellant was detained under section 37 of the 1983 Act as a mental patient with a restriction under section 41. He sought his release.
Held: The standard of proof in such applications remained the balance of probabilities, but that . .
Cited – In re D; Doherty, Re (Northern Ireland); Life Sentence Review Commissioners v D HL 11-Jun-2008
The Sentence Review Commissioners had decided not to order the release of the prisoner, who was serving a life sentence. He had been released on licence from a life sentence and then committed further serious sexual offences against under-age girls . .
Cited – Harris v The Solicitors Regulation Authority Admn 28-Jun-2011
The solicitor appealed against findings and orders regarding allegations of having failed to disclose to clients referral fees paid by him to third parties, and of having given misleading fees information.
Held: The appellant had admitted . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.224734

Manukau Urban Maori Authority and others v Treaty of Waitangi Fisheries Commission and others and Reuben Brian Perenara v Treaty of Waitangi Fisheries Commission and others (New Zealand): PC 2 Jul 2001

(New Zealand) The treaty of settlement between the Maori people and the state operated also as a settlement as between the various Maori peoples. Inherited rights to control fisheries were to be construed so as to benefit the Maori people as a whole. Measures under the Act to help preserve fisheries were challenged by non-traditional Maori groups, claiming that they preferred traditional (Iwi) groups. The statute required consultation with traditional meeting groups which would have the effect of excluding non-traditional Maoris. The words were clear, and gave no discretion to benefit other than Iwi groups.
[2001] UKPC 32
Bailii, PC, PC
Maori Fisheries Act 1989, Treaty of Waitangi Act 1975
England and Wales

Updated: 03 September 2021; Ref: scu.159472

Campbell v The Queen (Jamaica): PC 16 Dec 1996

The defendant appealed his conviction of murder. The United Nations Human Rights Committee had expressed the view that he had not had a fair trial. The judge was said to have been brusque with him, and though a child, he had been held overnight at a police station.
Held: The appeal should be dismissed: ‘The question for their Lordships is whether the conduct of the judge was such as to cause a miscarriage of justice. Having examined the detail of the allegations made against him their Lordships are satisfied that while he might have exercised a greater degree of sensitivity in the delicate task of handling a witness of such tender years, the trial was not unfair nor did any miscarriage of justice occur. The judge gave a full and careful summing up of which no criticism has been made to their Lordships.’
Lord Goff of Chieveley, Lord Keith of Kinkel, Lord Mustill

Lord Hoffmann

Lord Clyde
[1996] UKPC 49
Bailii
England and Wales

Updated: 03 September 2021; Ref: scu.159208

Darmalingum v The State: PC 10 Jul 2000

(Mauritius) The constitutional right of a defendant to have his case tried within a reasonable time applied not just to the initial trial but also to any appeal arising from that trial. Where there had been inordinate and inexcusable delay between the suspects first arrest and his trial, and also after trial and before the hearing of his appeal should properly lead to the conviction being overturned. The constitution should be ready in a purposive rather than a technical way. The right to a fair hearing is one of three separate guarantees contained in section 10(1) of the constitution, along with he right to a hearing within a reasonable time and to a hearing by an independent and impartial court established by law.
A delay of 15 years was inordinate and inexcusable.
The defendant had had the shadow of proceedings hanging over him for about 15 years and there was therefore manifestly a flagrant breach of section 10(1). As to the reedy, Lord Steyn said: ‘The normal remedy for a failure of this particular guarantee, viz the reasonable time guarantee, would be to quash the conviction. That is, of course, the remedy for a breach of the two other requirements of section 10(1), viz (1) a fair hearing and (2) a trial before an independent and impartial court. Counsel for the prosecution argued however that the appropriate remedy in this case is to affirm the conviction and to remit the matter of sentence to the Supreme Court so that it may substitute a non-custodial sentence in view of the delay. The basis of this submission was that the guilt of the defendant is obvious and that it would therefore be wrong to allow him to escape conviction. This argument largely overlooks the importance of the constitutional guarantee as already explained. Their Lordships do not wish to be overly prescriptive on this point. They do not suggest that there may not be circumstances in which it might arguably be appropriate to affirm the conviction but substitute a non-custodial sentence, eg in a case where there had been a plea of guilty or where the inexcusable delay affected convictions on some counts but not others. But their Lordships are quite satisfied that the only disposal which will properly vindicate the constitutional rights of the defendant in the present case would be the quashing of the convictions.’
Lord Steyn
Times 18-Jul-2000, [2000] UKPC 30, Appeal No 42 of 1999, [2000] 1 WLR 2303
Bailii, PC
England and Wales
Cited by:
Cited – Dyer v Watson and Burrows PC 29-Jan-2002
Parties challenged the compliance of proceedings with the convention where there had been considerable delay.
Held: The reasonable detention provision (article 5(3)) and the reasonable time requirement (article 6(1)) conferred free-standing . .
Distinguished – Mills v HM Advocate and Another PC 22-Jul-2002
(The High Court of Justiciary) The defendant appealed on the basis that the delay in the sentencing process had resulted in an infringement of his human rights.
Held: The appeal itself had been without merit. The delay had been to such an . .
Cited – Aaron v The Law Society (the Office of the Supervision of Solicitors) QBD 13-Oct-2003
The appellant challenged an order suspending him from practice as a solicitor for two years. He had previous findings of professional misconduct in failing to pay counsels’ fees. In the course of later disciplinary proceedings he was found to have . .
Cited – Ramawat Dosoruth v The State of Mauritius The Director of Public Prosecutions PC 21-Oct-2004
PC (Mauritius) The defendant challenged his conviction for having taken a bribe saying there had been an injustice, and seeking protection directly under the constitution. The evidence against him was that a . .
Cited – O’Neill v Her Majesty’s Advocate No 2 SC 13-Jun-2013
The appellants had been convicted of murder, it being said that they had disposed of her body at sea. They now said that the delay between being first questioned and being charged infringed their rights to a trial within a reasonable time, and . .
Cited – Gadd, Regina v QBD 10-Oct-2014
The prosecutor sought leave to bring a voluntary bill of indictment, to pursue historic sex abuse allegations against the defendant. The defendant objected to counts founded on facts which were the substance of a charge of indecent assault . .
Cited – J, Regina v CACD 2-Jul-2001
Orse Attorney General’s Reference No 2 of 2001
The AG sought to appeal from the decision that an indictment against the seven defendants should be stayed on the ground that there had been a breach of Article 6(1). They were accused of . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.159418

Toteff v Antonas: 1952

(High Court of Australia) Dixon J said: ‘In an action of deceit a plaintiff is entitled to recover as damages a sum representing the prejudice or disadvantage he has suffered in consequence of his altering his position under the inducement of the fraudulent misrepresentations made by the defendant. When what he has been induced to do is to make a purchase from the defendant and part with his money to him in payment of the price, then, if the transaction stands and is not disaffirmed or rescinded what is recoverable is ‘the difference between the real value of the property, and the sum which the plaintiff was induced to give for it’ per Abbott L.C.J. Pearson v. Wheeler. As Sir James Hannen P. in Peek v. Perry pointed out, the question is how much worse off is the plaintiff than if he had not entered into the transaction. If he had not done so he would have had the purchase money in his pocket. To ascertain his loss you must deduct from the amount he paid the real value of the thing he got. It may be objected that the point of the application of this doctrine lies in identifying ‘the transaction’ and that what Mayo J. has done is to identify it as the purchase of the goodwill and that only. But what is meant is the transaction into which the representation induced the plaintiff to enter. The measure of damages in an action of deceit consists in the loss or expenditure incurred by the plaintiff in consequence of the inducement on which he relied diminished by the corresponding advantage in money or moneys worth obtained by him on the other side: Potts v. Miller. You look to what he has been induced to part with as the initial step. He is entitled to say that but for the fraud he would never have parted with his money; per Coleridge L.C.J. Twycross v. Grant. But he cannot recover the entire price he has paid unless the thing prove wholly worthless. If the thing has any appreciable value the damages must be reduced pro tanto: per Cockburn L.C.J., Twycross v. Grant. It must not be forgotten that after all deceit is an action on the case for special damages incurred in consequence of the defendant’s fraudulent inducement.’
Dixon J
(1952) 87 CLR 647
Austlii
Australia
Cited by:
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – East v Maurer CA 1991
The plaintiffs had bought a hair dressing salon from the defendant, who continued to trade from another he owned, despite telling the plaintiffs that he intended not to. The plaintiffs lost business to the defendant. They invested to try to make a . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 August 2021; Ref: scu.191189

The Citizens Life Assurance Company Limited v Brown: PC 6 May 1904

(New South Wales) A malicious libel was alleged. The life assurance company was vicariously liable in respect of a libel contained in a circular sent out by a person who was employed by the company under a written agreement as its ‘superintendent of agencies’. By the terms of the agreement that person was to devote his whole time to furthering the company’s business and was to be paid a salary weekly as well as a commission on policies procured by him.
Held: He was a servant of the company for whose actions the company was liable. Once companies are recognised by the law as legal persons, they are liable to have the mental states of agents and employees such as dishonesty or malice attributed to them for the purpose of establishing civil liability.
Lord Lindley said: ‘If it is once granted that corporations are for civil purposes to be regarded as persons, ie as principals acting by agents and servants, it is difficult to see why the ordinary doctrines of agency and of master and servant are not to be applied to corporations as well as to ordinary individuals.’
Lord Lindley
[1904] UKPC 20, [1904] AC 423
Bailii
Australia
Citing:
Rejected – Abrath v North Eastern Railway Co HL 15-Mar-1886
The plaintiff had brought an action against the company of malicious prosecution. It was rejected by the jury and again on appeal.
Held: The appeal failed. In an action for damages for the tort of malicious prosecution one of the elements of . .

Cited by:
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.419585

Bowlay Logging Limited v Domtar Limited: 1978

(Canada) The parties contracted for the claimant to cut timber and the defendant to haul it. The plaintiff said that the defendant breached the contract by supplying insufficient trucks to haul the timber away, and claimed as damages his wasted expenditure.
Held: Only nominal damages could be awarded. A plaintiff was not entitled to damages on a basis which would leave him better off than he would have been in had the contract been performed. The plaintiff would have made a loss on the contract as a whole. Noting that the issue had not been raised in either Cullinane Anglia Television said: ‘The law of contract compensates a plaintiff for damages resulting from the defendant’s breach; it does not compensate a plaintiff for damages resulting from his making a bad bargain. Where it can be seen that the plaintiff would have incurred a loss on the contract as a whole, the expenses he has incurred are losses flowing from entering into the contract, not losses flowing from the Defendant’s breach. In these circumstances, the true consequence of the defendant’s breach is that the plaintiff is released from his obligation to complete the contract- or, in other words, he is saved from incurring further losses.
If the law of contract were to move from compensating for the consequences of breach to compensating for the consequences of entering into contracts, the law would run contrary to the normal expectations of the world of commerce. The burden of risk would be shifted from the plaintiff to the defendant. The defendant would become the insurer of the plaintiff’s enterprise.’
Berger J
[1978] 4 WWR 105
Canada
Citing:
Cited – L Albert and Son v Armstrong Rubber Co 1949
(United States Court of Appeals, Second Circuit) A purchaser of machines designed to recondition rubber sought damages for breach of contract, namely, the cost of the foundation on which the machines were placed. However, the purchaser did not prove . .
Cited – Anglia Television v Oliver Reed CA 1971
The television company had agreed with the actor defendant for him to appear in a production. He breached the contract. The company sought both loss of profits and for the expense incurred. The issue before the Court of Appeal was whether such . .
Cited – Cullinane v British ‘Rema’ Manufacturing Co Ltd CA 1954
The court considered the possibility of a claim in breach of contract for damages for both capital loss and loss of profit.
Lord Evershed MR said: ‘It seems to me, as a matter of principle, that the full claim of damages in the form in which . .

Cited by:
Cited – Omak Maritime Ltd v Mamola Challenger Shipping Co Ltd ComC 4-Aug-2010
Lost Expenses as Damages for Contract Breach
The court was asked as to the basis in law of the principle allowing a contracting party to claim, as damages for breach, expenditure which has been wasted as a result of a breach. The charterer had been in breach of the contract but the owner had . .
Followed – C and P Haulage v Middleton CA 27-Jun-1983
The parties entered into an agreement allowing the defendant to occupy the plaintiff’s land. They had disputed whether it was a licence or a lease. The occupier had expended sums on improving the premises, but had then been summarily ejected. He now . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.421537

Minister of the Interior v Harris: 1952

(South Africa) A provision entrenched the right of Cape Coloured voters to be on the same voters roll as white voters. The entrenchment was achieved by sections 63 and the proviso to section 152 of the South Africa Act providing that the voting rights of Cape Coloured voters could only be removed by a two-thirds majority of both Houses of Parliament sitting together. In furtherance of its racist ideology the Nationalist government decided to abolish this right. Its attempt to do so was contested. In Harris v Minister of the Interior 1952 (2) 428 (AD) the issue came before the Appellate Division, as it was then known. The court had in mind (at 431C) the clear distinction between what Parliament may do by legislation and what the constituent elements must do to legislate. Ruling unanimously that the government’s attempt to by-pass the entrenched provisions was invalid, Centlivres CJ speaking for the Appellate Division observed: ‘A State can be unquestionably sovereign although it has no legislature which is completely sovereign. As Bryce points out in his Studies in History and Jurisprudence (1901 ed, vol II, p 53) legal sovereignty may be divided between two authorities. In the case of the Union, legal sovereignty is or may be divided between Parliament as ordinarily constituted and Parliament as constituted under section 63 and the proviso to section 152. Such a division of legislative powers is no derogation from the sovereignty of the Union and the mere fact that that division was enacted in a British Statute (viz, the South Africa Act) which is still in force in the Union cannot affect the question in issue.’
Centlivres CJ
1952 (4) SA 769
England and Wales
Cited by:
Cited – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.231148

Cardile v LED Builders PTY Limited: 1999

(High Court of Australia) The respondent (‘LED’) twice sought relief from Eagle Homes PTY Limited (‘Eagle’) for copyright infringement. Anticipating the proceedings the only shareholders and controllers of Eagle, the claimants arranged the declaration and payment of a dividend to them by Eagle of $400,000, and after the hearing of the infringement actions in March 1996, but before judgment in July, a similar payment of a further dividend of $658,977.12, again intenting to put Eagles assets beyond the reach of LED. LED obtained freezing orders against Mr and Mrs Cardile, and they sought to have them set aside on appeal on the grounds that there was no case against them of receipt and retention of any property of Eagle, nor any other basis for the grant of a freezing order against them in favour of LED.
Held: The court undertook a comprehensive review of the nature and rationale of the jurisdiction to grant interim relief and freezing orders based largely on English authority which included reference to the Aiglon case. The court set out principle determining whether Mareva relief should be granted in relation to the activities of third parties: ‘What then is the principle to guide the courts in determining whether to grant Mareva relief in a case such as the present where the activities of third parties are the object sought to be restrained? In our opinion such an order may, and we emphasise the word ‘may’, be appropriate, assuming the existence of other relevant criteria and discretionary factors, in circumstances in which:
(i) the third party holds, is using, or has exercised or is exercising a power of disposition over, or is otherwise in possession of, assets, including ‘claims and expectancies’ , of the judgment debtor or potential judgment debtor; or
(ii) some process, ultimately enforceable by the courts, is or may be available to the judgment creditor as a consequence of a judgment against that actual or potential judgment debtor, pursuant to which, whether by appointment of a liquidator, trustee in bankruptcy, receiver or otherwise, the third party may be obliged to disgorge property or otherwise contribute to the funds or property of the judgment debtor to help satisfy the judgment against the judgment debtor.’
Applying that statement of principle to Mr and Mrs Cardile, the majority concluded that there were two bases upon which the court had jurisdiction to grant a freezing order against them on the application of LED. The first was that it was arguable that the declaration and payment of the dividends was an alienation of property with intent to defraud creditors, voidable at the instance of any person thereby prejudiced, within the meaning of section 37A of the Conveyancing Act, sufficient to give LED a direct cause of action against Mr and Mrs Cardile as a person thereby prejudiced.
The second basis was that the declaration and payment of both dividends were voidable transactions within the meaning of Part 5.7B Divider 2 of the Corporations Law, and therefore liable to be set aside on application by a liquidator appointed at the instance of LED by way of enforcement of a quantified judgment for damages at the conclusion of its infringement proceedings. As they put it in paragraph 69 of their judgment: ‘A liquidator probably appointed on the initiative of LED but acting on behalf of all creditors, would be entitled to pursue and recover those funds’ (meaning the dividends).
Kirby J: ‘To secure an asset preservation order in a case such as the present, it will be necessary for the party seeking it to show, in addition to the conditions ordinary to the grant of relief injunctive in nature that (1) there is a danger that the non-party will dispose of relevant assets or property in its possession or under its control; and (2) that the affairs of the actual or potential judgment debtor and the non-party are closely intermingled and that the actual or potential judgment creditor has a vested or accrued cause of action against the non-party or may otherwise become entitled to have recourse to the non-party, its property and assets to meet the claim. Clearly, on the preliminary findings made by the primary judge, these preconditions were established in the present case.’
Gaudron, McHugh, Gummow, Kirby and Callinan JJ
[1999] HCA 18
HCA
Australia
Cited by:
Cited – C Inc Plc v L and Another QBD 4-May-2001
The plaintiff had obtained judgment against L, only then to find that she claimed that all only apparent assets were held by her on trust for or as agent for her husband who was overseas. The plaintiff therefore now set out to add him, and to claim . .
Cited – HM Revenue and Customs v Egleton and others ChD 19-Sep-2006
The claimants had applied for the winding up of a company for very substantial sums of VAT due to it. Anticipating that hearing, it now sought restraining orders against the director defendants, alleging that there had been a carousel or missing . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.245163

National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica): PC 28 Apr 2009

Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the absence of express contrary agreement or statutory impediment, a contract by a bank to provide banking services to a customer is terminable upon reasonable notice. It was wrong to approach requests for mandatory injunctions with a box-ticking approach, and ‘Factors which the court might have taken into account in this case if there had been a triable issue were, first, that the injunction required the bank to continue against its will to provide confidential services for the plaintiffs; secondly, that the injunction would require the bank to continue to incur reputational risks and possible exposure to legal action; thirdly, that it was by no means clear that the plaintiffs would be able to satisfy a claim under the cross-undertaking in damages; fourthly, that the plaintiffs’ case was, even if not (as their Lordships think) hopeless, certainly very weak, and fifthly, that the plaintiffs could no doubt have obtained alternative banking services from any bank whom they could persuade that they were not running a fraudulent scheme.’
Lord Hoffmann said in relation to interlocutory injunctions: ‘The purpose of such an injunction is to improve the chances of the court being able to do justice after a determination of the merits at the trial. At the interlocutory stage, the court must therefore assess whether granting or withholding an injunction is more likely to produce a just result. As the House of Lords pointed out in American Cyanamid Co v Ethicon Ltd [1975] AC 396, that means that if damages will be an adequate remedy for the plaintiff, there are no grounds for interference with the defendant’s freedom of action by the grant of an injunction. Likewise, if there is a serious issue to be tried and the plaintiff could be prejudiced by the acts or omissions of the defendant pending trial and the cross-undertaking in damages would provide the defendant with an adequate remedy if it turns out that his freedom of action should not have been restrained, then an injunction should ordinarily be granted.
In practice, however, it is often hard to tell whether either damages or the cross-undertaking will be an adequate remedy and the court has to engage in trying to predict whether granting or withholding an injunction is more or less likely to cause irremediable prejudice (and to what extent) if it turns out that the injunction should not have been granted or withheld, as the case may be. The basic principle is that the court should take whichever course seems likely to cause the least irremediable prejudice to one party or the other. This is an assessment in which, as Lord Diplock said in the American Cyanamid case [1975] AC 396 , 408: ‘It would be unwise to attempt even to list all the various matters which may need to be taken into consideration in deciding where the balance lies, let alone to suggest the relative weight to be attached to them.’ ‘
Lord Hoffmann also discussed the making of ex parte applications: ‘there appears to have been no reason why the application for an injunction should have been made ex parte, or at any rate, without some notice to the bank. Although the matter is in the end one for the discretion of the judge, audi alterem partem is a salutary and important principle. Their Lordships therefore consider that a judge should not entertain an application of which no notice has been given unless either giving notice would enable the defendant to take steps to defeat the purpose of the injunction (as in the case of a Mareva or Anton Piller order) or there has been literally no time to give notice before the injunction is required to prevent the threatened wrongful act. These two alternative conditions are reflected in rule 17.4(4) of the Supreme Court of Jamaica Civil Procedure Rules 2002. Their Lordships would expect cases in the latter category to be rare, because even in cases in which there was no time to give the period of notice required by the rules, there will usually be no reason why the applicant should not have given shorter notice or even made a telephone call. Any notice is better than none.’
Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Brown of Eaton-under-Heywood and Lord Mance
[2009] UKPC 16, Times 06-May-2009, [2009] 1 WLR 1405
Bailii
England and Wales
Citing:
Cited – Shepherd Homes Ltd v Sandham ChD 1970
In the context of an interlocutory application for an enforcing a mandatory injunction, Megarry J said: ‘on motion, as contrasted with the trial, the court is far more reluctant to grant a mandatory injunction than it would be to grant a comparable . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
Cited – Films Rover International Ltd v Cannon Film Sales Ltd 1987
The grant of an interlocutory injunction, whether prohibitory or mandatory, depends on what is sometimes called the balance of convenience but is more accurately an assessment of whether granting or withholding the injunction at that stage is more . .

Cited by:
Cited – Revenue and Customs v Rochdale Drinks Distributors Ltd CA 13-Oct-2011
The revenue appealed against refusal of its petition for the winding up of the company for non-payment of a VAT assessment. The company said that the assessment was disputed. The revenue said that the company had been run for the purpose of . .
Cited – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Cited – Jeeg Global Ltd v Hare QBD 29-Mar-2012
The claimant had obtained an order restricting the defendant from asserting any kind of insolvency in the claimant. The defendant now sought the strike out of the claim as an abuse of process. He said that any such disclosure had been on one . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.341819

Liyanage v The Queen: PC 1967

(Ceylon) The appellants had been convicted of grave criminal offences under laws of the Parliament of Ceylon. The Act under which they were convicted was passed after an abortive coup, and deprived the appellants retrospectively of their right to trial by jury providing for their trial by three judges appointed by the Minister, imposed a minimum sentence of ten years, and provided for forfeiture of their property.
Held: The convictions were quashed by the Privy Council on the footing that the laws offended against Ceylon’s written constitution. It offended fundamental principles which had been inherited into the Ceylon constitutional framework. The Ceylon (Constitution) Order in Council, which contained the phrase ‘laws for peace, order and good government’ coupled with the Ceylon Independence Act were intended to and did give the full legislative powers of a sovereign independent state. The Independence Act provided for certain limits on UK legislation which had previously been enacted and for the removal of a bar to enactments repugnant to UK laws.
‘Therefore the legislative power of Ceylon is still limited by the inability (which it inherits from the Crown) to pass laws which offend against fundamental principles. This vague and uncertain phrase might arguably be called in aid against some of the statutes passed by any Sovereign power. And it would be regrettable if the procedure adopted in giving independence to Ceylon has produced the situation for which the appellants contend.
In view of their Lordships, however, such a contention is not maintainable. Before the passing of the Colonial Laws Validity Act, 1865, considerable difficulties had been caused by the over-insistence of a Colonial judge in South Australia that colonial legislative Acts must not be repugnant to English law (‘The Statute of Westminster and Dominion Status’ by K. C. Wheare [the 4th edn, pp, 75, 76, 77 are referred to in a footnote to the report. Sir Kenneth Wheare was a distinguished Rector of Exeter College Oxford] ). That Act was intended to and did overcome the difficulties. It provided that colonial laws should be void to the extent in which they were repugnant to an Act of the United Kingdom parliament applicable to that colony, ‘but not otherwise’ (s.2) and that they should not be void or inoperative on the ground of repugnancy to the law of England (s.3).
‘The essential feature of this measure is that it abolished once and for all the vague doctrine of repugnancy to the principles of English law as a source of invalidity of any colonial Act… The boon thus secured was enormous; it was now necessary only for the colonial legislator to ascertain that there was no Imperial Act applicable and his field of action and choice of means became unfettered.’ (‘The Sovereignty of the British Dominions’ by Prof. Keith [the footnote refers to an edition of 1929, p. 45] )
Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words ‘but not otherwise’ in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy. Moreover their Lordships doubt whether Lord Mansfield was intending to say that what was not repugnant to English law might yet be repugnant to fundamental principles or to set up the latter as a different test from the former. Whatever may have been the possible arguments in this matter prior to the passing of the Colonial Laws Validity Act, they are not maintainable at the present date.’
Lord Pierse: ‘Blackstone in his Commentaries said: ‘Therefore a particular act of the legislature to confiscate the goods of Titius , or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.’
If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’
Lord Pierse
[1967] 1 AC 259
England and Wales
Citing:
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 by:
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 August 2021; Ref: scu.186648

Manjang v Drammeh: PC 1990

The owner of a strip of land alongside the River Gambia and which was ‘regularly and without inconvenience’ accessed by his customers from the river failed in a contention that his land was ‘landlocked’ so as to give him a way of necessity over adjoining land to the public highway.
Held: Lord Oliver explained the principle underlying the grant of a right of way of necessity by implication: ‘It seems hardly necessary to state the essentials for the implication of such an easement. There has to be found, first, a common owner of a legal estate in two plots of land. It has, secondly, to be established that access between one of those plots and the public highway can be obtained only over the other plot. Thirdly, there has to be found a disposition of one of the plots without any specific grant or reservation of a right of access. Given these conditions, it may be possible as a matter of construction of the relevant grant (see Nickerson v Barraclough) to imply the reservation of an easement of necessity.’
Lord Oliver
[1990] 61 P and CR 194
Commonwealth
Citing:
Cited – Nickerson v Barraclough CA 13-Dec-1980
The defendant appealed a finding that the plaintiff had a right of way of necessity over his land. When looking to see whether a grant of a right of way of necessity was implied, the court should ascertain the intention of the parties and public . .

Cited by:
Cited – Adealon International Proprietary Ltd v London Borough of Merton CA 25-Apr-2007
The claimant had bought land from the council. The only means of access was over land retained by the council but there was no grant of a right of way. The claimant now appealed refusal of a right of way by necessity.
Held: At the time of the . .
Cited – Sweet and Another v Sommer and Another ChD 25-Jun-2004
Part of land had been sold off. By oversight no right of way had been taken in favour of the retained land. The dominant owner argued that by demolition of a building a means of access could be found and that therefore no right of way by necessity . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2021; Ref: scu.253283

Sambasivam v The Public Prosecutor, Federation of Malaysia (Malaya): PC 30 Mar 1950

Malaya – The appellant challenged his conviction for carrying a firearm and ammunition. He had been tried under simplified emergency procedures and sentenced to death. The prosecution had adduced evidence of possession on the same occasion of unlawful possession by him of .38 ammunition in respect of which he had been acquitted at a previous trial and of which acquittal the assessors in the subsequent trial were not informed.
Held:His appeal succeeded. The prosecution was not entitled to challenge the validity of the acquittal in that way and that the appellant was entitled to rely on it in so far as it might be relevant to his defence.
Lord MacDermott said: ‘The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication.’
Lord MacDermott
[1950] UKPC 7, [1950] AC 458, (1950) 66 TLR (Pt 2) 254
Bailii
England and Wales

Updated: 11 August 2021; Ref: scu.446077

Siu Yin Kwan and Another v Eastern Insurance Co Ltd: PC 16 Dec 1993

Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant policy.
Lord Lloyd said: ‘There are two reasons why their Lordships prefer the decision in Mark Rowlands . . In the first place the words ‘event or events’ in section 2, while apt to describe the loss of the vessel are hardly apt to describe . . liability arising under the common law, as a consequence of the loss of the vessel. Secondly, section 2 must take colour from the short title and preamble to Section 1. By no stretch of the imagination could indemnity insurance be described as a ‘mischievous kind of gaming’. Their Lordships are entitled to give section 2 a meaning which corresponds with the obvious legislative intent.’
Lord Lloyd of Berwick said: ‘For present purposes the law can be summarised shortly. (1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal’s behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contact itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.’
Lord Lloyd
Gazette 02-Feb-1994, Times 16-Dec-1993, [1994] 2 AC 199, [1994] 1 All ER 213, [1994] 2 WLR 370
Insurance Act 1774 2
Commonwealth
Citing:
Applied – Mark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .

Cited by:
Cited – Feasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
Cited – Banca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.89287

Sirdar Gurdyal Singh v The Rajah of Faridkote: PC 28 Jul 1894

(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote and did not appear in the actions or otherwise submit to the jurisdiction. It was argued, for the Rajah, that the Faridkote court had jurisdiction over Singh because, ‘[b]y becoming state treasurer, [he] submitted himself to the jurisdiction of the Faridkote Court, for where a man takes office in a state he must be deemed to have agreed to be bound by the jurisdiction of that state as accounting for money due from him to that state in respect of that office. In any case, where an office is accepted in that way, and the whole cause of action arises in that state, there is jurisdiction which is obligatory on the acceptor’Held: The Board rejected the argument.
Lord Selborne LC, speaking for the Privy Council, said of an agreement or consent to the jurisdiction of a foreign court being implied or inferred, that ‘such obligation, unless expressed, could not be implied’
Lord Selborne LC
[1894] UKPC 44, [1894] AC 670
Bailii
England and Wales
Citing:
Cited – Schibsby v Westenholz CA 1980
The parties were both Danish, the plaintiffs resident in France and the defendants in London. The plaintiffs now sought to enforce a judgment obtained against the defendangt in France in default of their appearance. The defendants had no property in . .

Cited by:
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
Cited – Emanuel v Symon CA 1908
Kennedy LJ confirmedtaht the Faridkote case had decided of a suggested obligation to submit to a foreign jurisdiction that it: ‘was not to be implied from the mere fact of entering into a contract in a foreign country’. . .
Cited – Mattar and Saba v Public Trustee 1952
Alberta Appellate Division – The court denied enforcement of a Quebec judgment on promissory notes, and held that an agreement to submit to the jurisdiction of a foreign court is not to be implied from the fact that the defendant has entered into a . .
Cited – Adams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .
Cited – Vizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.417560

The Director General, Mauritius Revenue Authority v Paradis Brabant Hotel (Mauritius) (Rev 1): PC 23 Jul 2013

The issue before the Committee concerned the appropriate rate of Hotel and Restaurant Tax (‘HRT’) applicable to taxable receipts in respect of supplies made by each of the fifteen or sixteen respondents, in connection with its hotel and/or restaurant business.
Lord Neuberger, Lord Wilson, Lord Carnwath, Lord Toulson, Sir Paul Girvan
[2013] UKPC 24
Bailii
England and Wales

Updated: 07 August 2021; Ref: scu.514150

Geyer v Downs and another: 1977

(High Court of Australia) A pupil suffered injuries when hit by a softball bat by a fellow pupil at playing the game in the school playground before school. There was no supervision. The jury awarded the appellant damages. The verdict was set aside by the court of appeal.
Held: The appeal to the High Court was allowed: ‘It was urged for the respondent that there was no duty of supervision owed to the children before ‘school hours’. That expression was taken in the present case to mean the period of time beginning at 9.00 am, at which the ‘Daily Routine’ stated that the playgrounds were to be supervised. Reliance was also placed upon the departmental instruction 5.2.4.1 as set out, supra, which it was said produced the result that the headmaster had no power or authority to require teachers to supervise the playground otherwise than during the hours 9.00 am to 3.30 pm as set out in that instruction. It was said therefore that the headmaster could not be regarded as negligent by failing to take measures to provide supervision of the playground prior to 9.00 am when he had no authority to direct any teacher to be present to perform that function. So to regard the case is to take an unduly restricted view of the relevant circumstances. There is no case which lays down that there is no duty of supervision prior to ‘school hours’, however that expression may be understood. The point seems to have been seldom referred to. In Ward v Hertfordshire County Council [1970] 1 All ER 535 at 538; [1970] 1 WLR 356 at 361, Salmon LJ expressly reserved the question whether lack of supervision could give rise to a cause of action in a case where the injury occurs at 8.50 am but ‘the school does not start until 8.55 am’. There seems no basis for treating it as a rule that there can be no duty of supervision outside ‘ordinary school hours’ or ‘before school started’. The question must depend upon the nature of the general duty to take reasonable care in all the circumstances. It is not enough to look only at the departmental instructions and to say that the duty of supervision arises only during the periods referred to in those instructions.’
Murphy and Aickin JJ
[1977] 17 ALR 408
Australia
Cited by:
Cited – Kearn-Price v Kent County Council CA 30-Oct-2002
The claimant was injured, being hit in the face by a football in a school playground. It was before school started. There had been accidents, and there were rules which had not been enforced. The school appealed a finding of negligence.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2021; Ref: scu.214302

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, the result of the change would be that the protections presently guaranteed by the constitution would remain in place, but would no longer be guaranteed, and the change was unlawful. Certain provisions are to be more deeply entrenched. Guarantees of the independence and security of the judiciary are entrenched. The result of the alteration would mean that later amendments to the new court system might be allowed and that independence of the judiciary undermined. The original Referendum Act did not therefore purport to amend the constitution, and was valid: ‘There is a difference in principle between requiring a referendum as part of the legislative process and requiring a referendum which is no more than advisory. The result of the referendum in the latter case imposes no obligation on the legislature.’
[2005] UKPC 3, [2005] 2 AC 356, [2005] 2 WLR 923
PC, Bailii
England and Wales
Citing:
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 – 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 . .
Cited – Kariapper v Wijesinha PC 1967
The legislation at issue imposed ‘civil disabilities’ on Members of Parliament against whom allegations of bribery had been sustained, including the loss of their seats in Parliament. The question arose whether they had been punished.
Held: . .
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 by:
Cited – The Prime Minister of Belize, The Attorney General of Belize v Vellos, Dawson and Others PC 24-Mar-2010
(Belize) Challenge was made to an Act removing certain constititutional rights which Act was passed without a referendum. The Act amending the constitution to require further amendments to follow a referendum did not itself follow the constitutional . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.222758

Edward Wong Finance Co Ltd v Johnson Stokes and Master: PC 1984

(Hong Kong) The defendant’s solicitors completed a mortgage in ‘Hong Kong style’ rather than in the old fashioned English style. Completion in Hong Kong style provides for money to be paid over against an undertaking by the solicitors for the borrowers subsequently to hand over the executed documents. This allowed a dishonest solicitor for the borrower to abscond with an advance without providing the documents.
Held: Even though completion in Hong Kong style was almost universally adopted in Hong Kong and was in accordance with a body of professional opinion there, the defendant’s solicitors were liable for negligence because there was an obvious risk which could have been guarded against. Thus, the body of professional opinion, though almost universally held, was not reasonable or responsible. In medical negligence, in cases of diagnosis and treatment there are cases where, despite a body of professional opinion sanctioning the defendant’s conduct, the defendant can properly be held liable for negligence. Nevertheless, it will very seldom be right for a judge to reach the conclusion that views generally held by a competent medical expert are unreasonable.
Diplock, Elwyn-Jones, Roskill, Brandon of Oakbrook, Brightman LL
(1983) 80 LSG 3163, [1984] 2 WLR 1, [1983-84] ANZ Conv R 640, [1984] AC 296, [1983] UKPC 32
Bailii
England and Wales
Cited by:
Cited – Patel and Another v Daybells (a Firm) CA 27-Jul-2001
Land was purchased and a resale negotiated before it was registered. An undertaking was accepted that the seller’s solicitor would discharge all charges. The purchasers sought to avoid completion by saying the Act required them to be registered . .
Cited – Calver v Westwood Veterinary Group CA 24-Nov-2000
The defendants appealed a finding of professional negligence in their handing of a case in which a mare had miscarried. It was claimed that he had failed to spot a retained placenta. The laminitis she then suffered (found caused by negligence) led . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Lloyds TSB Bank Plc v Markandan and Uddin (A Firm) ChD 14-Oct-2010
The claimant sought damages saying that the defendant firm of solicitors had failed to deal properly with a conveyance having paid across the mortgage funds to a non-existent firm of solicitors and without obtaining the appropriate documents at all. . .
Cited – Cook v The Mortgage Business Plc CA 24-Jan-2012
cook_mbpCA2012
The land owners sought relief from possession orders made under mortgages given in equity release schemes: ‘If the purchaser raises all or part of the purchase price on mortgage, and then defaults, the issue arises whether the mortgagee’s right to . .
Cited – Thwaytes v Sotheby’s ChD 16-Jan-2015
The claimant had sold a painting through the defendant auctioneers. He sought damages after it was certified to be an original rather than copy Caravaggio painting, and worth very substantially more. . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.183812

Goldcorp Exchange Ltd and others v Liggett and others: PC 25 May 1994

(New Zealand) The non allocated claimants purchased gold bullion from a company for future delivery on a non allocated basis. The company stored and insured the metal, but the claimants had a right to call for delivery of their part within 7-days. The company became insolvent and, a bank holding a debenture appointed receivers. R brought claims of a proprietary nature. The receivers applied to the High Court of New Zealand for directions on the disposal of the bullion. The judge rejected the claims of the non allocated claimants. The Court of Appeal in New Zealand allowed their appeal on different grounds.
Held: The receivers’ appeal succeeded. An equitable title could not pass under a simple contract for the sale of unascertained goods merely by virtue of the sale, since the buyer could not acquire title until it was known to what exact goods the proposed title related. The non allocated claimants were not entitled to assert any proprietary rights over the remaining stocks of bullion arising out of a fiduciary relationship since any such relationship was no different from the contractual relationship between the parties.
‘The essence of a fiduciary relationship is that it creates obligations of a different character from those deriving from the contract itself’.
Lord Mustill
[1994] 2 All ER 806, [1994] UKPC 3, [1994] UKPC 18, [1995] 1 AC 74, [1994] 2 BCLC 578, [1994] 3 WLR 199, (1994) 138 (LB) 127, (1994) Tr LR 434
Bailii, Bailii
England and Wales
Cited by:
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .
Cited – Lehtimaki and Others v Cooper SC 29-Jul-2020
Charitable Company- Directors’ Status and Duties
A married couple set up a charitable foundation to assist children in developing countries. When the marriage failed an attempt was made to establish a second foundation with funds from the first, as part of W leaving the Trust. Court approval was . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.245740

Customglass Boats Limited v Salthouse Brothers Limited: 1976

(New Zealand) The court examined the question of whether market resarch was admissible as expert evidence as to damages.
Held: ‘So far as I can see, public opinion or survey evidence is not now in practice treated as hearsay in trade mark or patent cases in the United Kingdom notwithstanding that the party adducing such evidence relies not only upon the affidavits of persons responding to a questionnaire but also upon answers not sworn to but available for inspection by the other side in terms of the direction given in A. Baily and Co. v. Clark, Son and Morland. The latter class of answers, unsanctified by judicial oath, are resorted to by the other side in order to verify the assertion that the sworn answers in fact represent a proportion of a total number tending to the same evidentiary conclusion, and subject to that right of inspection the total number of answers is accepted, in the absence of objection as to their factual existence in due form, as comprising a legitimate assembly of class opinion or impression in respect of the trade name or mark under consideration. In such a case, as in the case of conventional evidence by retailers as to the oral terms of buying orders or inquiries by customers, the Courts plainly accept evidence which is technically overshadowed by a general hearsay objection. The unsworn persons responding to a questionnaire and the anonymous customers who order or inquire about goods are all people making statements out of Court to a witness called in the proceedings, and although the basis of admissibility does not appear to be overtly founded upon anything except established practice and procedure under the trade mark and patent legislation, I can for myself see no objection to the classification of such evidence either as proving a public state of mind on a specific question, which is an acknowledged exception to the hearsay rule, or as proving an external fact, namely, that a designated opinion is held by the public or a class of the public, this not being a matter of hearsay at all.’
As to the weight to be attached to survey evidence: ‘There are obvious difficulties in the acceptance of testimony which purports to convey to the appropriate legal tribunal a number of individual assertions or opinions uttered in relation to the subject matter of the inquiry by persons not called as witnesses and, therefore, not subject to cross-examination, but the considerations which I have mentioned lead me to the conclusion that the result of a market research survey is admissible in this class of case to prove a fact in issue, whether it be reputation or likelihood of confusion or deception, even though the persons responding to the form of questions are not called as witnesses. The weight of such evidence, which was the basis of Mr. Gault’s objection in this case as opposed to technical admissibility, will depend upon the circumstances. There must be a formulation of questions cast in such a way as to preclude a weighted or conditioned response, there must be clear proof that the answers were faithfully and accurately recorded, and there must be evidence that the answers were drawn from a true cross-section of that class of the public or trade whose impression or opinion is relevant to the matter in issue. A properly drawn market research questionnaire, carefully framed so as to elicit opinions or beliefs held by persons adequately informed, can only reveal in my opinion the existence or otherwise in a defined proportion of the persons interviewed of the relevant opinion or belief, and I do not think it can be right in cases involving trade mark infringement or passing off where evidence of reputation is relevant, and especially in a passing off action where affidavit evidence is not receivable to compel a party to produce in the Courtroom an interminable parade of witnesses to depose individually as to their knowledge and understanding of the trade association involved in a particular trade mark or design, so long as there are followed the cautionary procedures recommended in the article in the New York University Law Review above cited. The evidence obtained by research surrey is in my view legitimate proof of the fact the opinions obtained had in fact existed, whether rightly held or not and on that view of the matter it is my opinion that such evidence is not hearsay at all and that, even if it did fall within the technical concept of hearsay or representing a collation of individual statements made out of Court then the evidence would still be admissible by way of exception to the hearsay rule because it exhibits the existence of a state of mind shared in common by a designated class of persons. In the present case the method and procedure of taking this research survey has already been described and I am satisfied that those methods and procedure were not only adequate but exemplary, and that the results thus obtained are admissible in evidence as proving the reputation of the name in question in relation to the manufacturer and the designer and the place of origin as held by persons properly informed on the general subject matter of the relevant enquiry.’
Mahon J
[1976] RPC 589
England and Wales
Citing:
Cited – A Baily and Co v Clark Son and Morland HL 1938
The House considered how market research surveys might be introduced in evidence. Lord Russell recommended filing affidavits from a limited number of respondents to the survey and filing a further affidavit proving the number of other persons who . .

Cited by:
Cited – Pegler Ltd v Wang (UK) Ltd TCC 25-Feb-2000
Standard Conract – Wide Exclusions, Apply 1977 Act
The claimant had acquired a computer system from the defendant, which had failed. It was admitted that the contract had been broken, and the court set out to decide the issue of damages.
Held: Even though Wang had been ready to amend one or . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.238581

Countrywide Banking Corporation Limited v Brian Norman Dean As Liquidator of C B Sizzlers Limited: PC 24 Nov 1997

(New Zealand) The issue was whether a transaction by a company should be set aside, following its liquidation, on the basis that it was a preference within the New Zealand Companies Act 1955. The applicant applied to the High Court of New Zealand for an order that the transaction should not be set aside on the ground that it had taken place in the ordinary course of business.
Held: The Board declined to formulate a universally applicable test for what was in the ordinary course of business for the purposes of a provision of the New Zealand Companies Act concerned with the avoidance of corporate transactions having a preferential effect, stressing the diversity of contexts in which the courts had given consideration to that expression. Gault J nevertheless stressed the need for ‘examination of the actual transaction in its factual setting’, an examination which is ‘undertaken objectively by reference to the standard of the ordinary course of business’. The judgment also noted that ‘there may be circumstances where a transaction, exceptional to a particular trader, will nonetheless be in the ordinary course of business’ and that ‘[t]he particular circumstances will require assessment in each case’
Gault J
[1997] UKPC 57, [1998] BCC 105, [1998] AC 338, [1998] 2 WLR 441, [1998] BPIR 676, [1998] 1 BCLC 306
Bailii
England and Wales

Updated: 25 July 2021; Ref: scu.159269

Daley v The Queen: PC 8 Dec 1997

(Jamaica) Whether murder was a capital murder under Jamaican legislation. The board explained the effect of s2(2) of the Act. Where two or more persons are found guilty of any of the categories of murder referred to in subsection (1) – except that referred to in paragraph (e), which refers to murder committed pursuant to an arrangement whereby money passes as consideration for causing or assisting in causing a person’s death – one or other of three additional tests must be satisfied before any of them can be found guilty of capital murder. These are (1) that the person by his own act caused the death of the person murdered; (2) that the person inflicted or attempted to inflict grievous bodily harm on the person murdered; and (3) that the person himself used violence on the person murdered in the course or furtherance of an attack on that person. It is necessary for the trial judge in a case where two or more persons are accused of capital murder, except that of the kind mentioned in paragraph (e) of section 1(1), to give a direction about the application to the case of section 2(2).
[1997] UKPC 58, [1998] 1 WLR 494
Bailii
Offences against the Person Act 1864 2(2)
England and Wales
Cited by:
Cited – Hunter, Moodie v The Queen PC 8-Oct-2003
PC (Jamaica) The defendants appealed against their convictions for capital murder.
Held: The appeals were allowed, and non-capital convictions substituted. It is not enough to comply with section 2(2), for . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.159270

Talbot v General Television Corporation Pty Ltd: 1980

The plaintff asserted that the defendant’s television programme was a copy of his own idea and had been developed in breach of his rights of confidence.
Held: To be capable of protection the idea must be sufficiently developed, so that it would be seen to be a concept which has at least some attractiveness for a television programme and which is capable of being realised as an actuality
Harris J
[1980] VicRp 26, [1981] RPC 1
England and Wales

Updated: 22 July 2021; Ref: scu.540359

Kemper Reinsurance Company v The Minister of Finance and others: PC 5 May 1998

(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature of the ratio decidendi of Lane v. Esdaile as explained by the Court of Appeal in Stevenson’s case, the important differences between applications for leave to appeal and applications for leave to apply for judicial review and the long-standing practice of the English Court of Appeal to entertain such appeals have persuaded their Lordships that whatever may have been the reasoning in In re Poh, it is not applicable to this case.’ and ‘Their Lordships consider that the principle in Lane v. Esdaile [1891] AC 210, as explained in In re Housing of the Working Classes Act, 1890, Ex parte Stevenson [1892] 1 QB 609, is that a provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court. This construction is based upon the ‘nature of the thing’ and the absurdity of allowing an appeal against a decision under a provision designed to limit the right of appeal. This absurdity is greatest in a case such as Lane v Esdaile, in which the appeal is brought to or from the very tribunal to which it is desired to appeal on the merits. As Lord Halsbury pointed out, an appeal against the refusal of leave would involve the higher court in doing the very thing which the provision was designed to prevent, namely, having to examine the merits of the decision appealed against. The Stevenson case generalises the proposition to cover all cases in which leave to appeal is required, even if the tribunal before which the applicant seeks a rehearing on the merits (in that case, a jury) is not the same as that to or from which he seeks to appeal against the refusal of leave. But the emphasis which the Court of Appeal in that case placed upon characterising the hearing before the jury as an appeal shows that the judges would not necessarily have been willing to state the principle any more widely and to include cases in which leave is required to do something other than appeal. For example, it has never been suggested that the provisions of the rules which require the leave of the court to serve process out of the jurisdiction impliedly exclude the right of appeal against the refusal of such leave.’ and ‘The question is therefore whether the requirement of leave to issue a summons for an order of certiorari is sufficiently analogous to a requirement of leave to appeal to attract the reasoning in Lane v. Esdaile and the Stevenson case and enable a court to say that an appeal from the grant or refusal of such leave would so frustrate the policy of requiring leave as to show, by necessary intendment and ‘the nature of the thing,’ that such orders were excluded from the general right of appeal in section 12 of the Court of Appeal Act 1964. For this purpose it is necessary for their Lordships to consider what the policy of the leave requirement is.’
Noting the difference from judicial review: ‘In principle, however, judicial review is quite different from an appeal. It is concerned with the legality rather than the merits of the decision, with the jurisdiction of the decision-maker and the fairness of the decision-making process rather than whether the decision was correct. In the case of a restriction on the right of appeal, the policy is to limit the number of times which a litigant may require the same question to be decided. The court is specifically given power to decide that a decision on a particular question should be final. There is obviously a strong case for saying that in the absence of express contrary language, such a decision should itself be final. But judicial review seldom involves deciding a question which someone else has already decided. In many cases, the decision-maker will not have addressed his mind to the question at all. The application for leave may be the first time that the issue of the legality of the decision is raised and their Lordships think it is by no means obvious that a refusal of leave to challenge its legality should be final. The law reports reveal a number of important points of administrative law which have been decided by the Court of Appeal or House of Lords in cases in which leave was refused at first instance.
In principle, therefore, their Lordships do not think it possible to say that the very nature of the leave requirement for an order of certiorari excludes, or makes absurd, the possibility of an appeal. But unless such a conclusion can be drawn, their Lordships consider it very difficult to find the necessary intendment restricting the general right of appeal conferred by section 12. It may be appropriate, as a matter of policy, to restrict that right of appeal, but their Lordships consider that this is a matter for legislation rather than judicial interpretation.’
Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Clyde, Lord Hutton
Times 18-May-1998, [2000] 1 AC 1, [1998] UKPC 22
Bailii
England and Wales
Citing:
Cited – Pillai v Comptroller of Income Tax PC 1970
The role of the Privy Council is purely appellate, and the court will not rule on points of law which had not been raised in the court from which the appeal lay. . .
Explained – Lane v Esdaile HL 5-May-1891
The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The . .
Cited – In re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
Cited – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – Practice Direction of 2nd November 1982 CA 2-Nov-1982
A refusal in a non-criminal cause or matter by a Divisional Court of the Queen’s Bench Division or by a single judge to grant leave to apply for judicial review is appealable to the Court of Appeal. . .
Cited – Dhillon v Secretary of State for the Home Department CACD 1988
The court considered the jurisdiction of the Court of Appeal to hear certain appeals, saying that ‘Lane v. Esdaile is of general application and provides that where leave to bring proceedings is required it is not possible to appeal against a . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
Cited – Begum v Secretary of State for the Home Department CA 1990
The court was willing to contemplate the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged. . .
Cited – Doorga v Secretary of State for the Home Department CA 1990
The court contemplated the possibility of an appeal by an applicant whose leave granted ex parte had been subsequently discharged. . .
Cited – Rickards v Rickards CA 20-Jun-1989
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited – Regina v Special Educational Needs Tribunal Ex Parte South Glamorgan County Council CA 12-Dec-1995
The Court of Appeal entertained an appeal by a respondent against the judge’s refusal to discharge leave granted ex parte. Challenges to decisions of tribunal should be by way of appeal not Judicial Review. . .
Cited – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Distinguished. – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited by:
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Sarfraz v Disclosure and Barring Service CA 22-May-2015
sarfraz_dbsCA201505
The claimant appealed against the refusal of the defendant to remove his name from the list of those barred from working with children. He had been a GP. Though not priosecuted for any criminal offence the Professional Conduct Committee had found . .

These lists may be incomplete.
Updated: 19 July 2021; Ref: scu.159303

Crookes v Wikimedia Foundation Inc: 27 Oct 2008

(Supreme Court of British Columbia) The claimant sought damages in defamation from an article published by the defendant on the internet. The court was asked whether the contents of an article to which a hyper-link was provided should be taken into account in identifying the claimant.
Held: Whilst hyperlinking could sometimes found an action for defamation, in this case, the publcation of the link did not amount to publcation in defamation.
Kelleher J
2008 BCSC 1424
Canlii
Canada
Cited by:
Cited – Islam Expo Ltd v The Spectator (1828) Ltd and Another QBD 30-Jul-2010
The claimant sought damages in defamation against the defendant in respect of its web-site. It said that the use of hyperlinks to third party sites was sufficient to identify the claimant and associate it with the allegations made.
Held: The . .

These lists may be incomplete.
Updated: 17 July 2021; Ref: scu.421633

RCA Corporation v Custom Cleared Sales Pty Ltd: 1978

(Court of Appeal of New South Wales) The court considered the knowledge to be established for copyright infringement saying, ‘the knowledge which has to be proved is actual but not constructive’.
[1978] FSR 576
Australia
Cited by:
Cited – Hoover plc v George Hulme (Stockport) Ltd 1982
Section 5(3) of the 1956 Act provided that ‘Copyright in a . . work is infringed by any person who . . (a) sells, lets for hire, or by way of trade offers or exposes for sale or hire any article . . if to his knowledge the making of that article . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
20c_btChD2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Sillitoe v McGraw-Hill Book Co 1983
The defendants had imported and distributed a series of ‘study notes’ for students which the plaintiffs alleged infringed the copyrights in the works under discussion.
Held: The defendants had been ‘fixed with knowledge’ 14 days after letters . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.442536

Jumbo King Ltd v Faithful Properties Ltd: 2 Dec 1999

(Court of Final Appeal of Hong Kong)
Chief Justice Li, Mr Justice Litton PJ, Mr Justice Ching PJ, Mr Justice Nazareth NPJ and Lord Hoffmann NPJ
(1999) 2 HKCFAR 279
HKLII
England and Wales
Cited by:
Cited – Chartbrook Ltd v Persimmon Homes Ltd and Others HL 1-Jul-2009
Mutual Knowledge admissible to construe contract
The parties had entered into a development contract in respect of a site in Wandsworth, under which balancing compensation was to be paid. They disagreed as to its calculation. Persimmon sought rectification to reflect the negotiations.
Held: . .

These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.374673

The Queen v Walter Watson Hughes And Edward Stirling: PC 22 Dec 1865

Leases granted by the Governor of South Australia under powers conferred on him by the Colonial Act, 21st Vict. No. 5, sec. 13, for regulating the sale and other disposal of waste lands belonging to the Crown, sealed with the public seal of the Province, but not enrolled or recorded in any court, are not in themselves Records; and, though bad on the face of them, being for a larger quantity of land than allowed by that Act, cannot be annulled or quashed by a writ of Scire facias
[1865] EngR 794, (1865) 3 Moo PC NS 439, (1865) 16 ER 166, [1866] UKPC 3, LR 1 PC 81
Commonlii, Bailii
Australia

Updated: 15 July 2021; Ref: scu.281706

Kiriri Cotton Co Ltd v Dewani: PC 1 Dec 1959

(Eastern Africa) A premium had been paid in consideration of the grant of a sub-lease of property contrary to the provisions of an ordinance. Restitution was ordered because payment had been made pursuant to a contractual obligation rendered void by statute. The action was ‘for restitution of money which the defendant has received but which the law says he ought to return to the plaintiff.’ He further said that ‘all the particular heads of money had and received, such as money paid under a mistake of fact, paid under a consideration that has wholly failed, money paid by one who is not in pari delicto with the defendant, are only instances where the law says the money ought to be returned.’ Lord Denning set out the exception to the rule regarding restitution of money paid under a mistake where there is ‘something more’ in addition to the mistake of law such as something in the defendant’s conduct which shows that he was the one who was primarily responsible for the mistake.
As an exception to the general rule of law, the fact that a transaction is illegal does not disbar a person whom the legislation is intended to protect from recovering money paid over in pursuance of the transaction.
It does not lie in the mouth of a party to an illegal contract to claim that he was unaware of the law relating to the illegality to which he is particeps criminis. However, the maxim does not mean that everybody is presumed to know the law. The true proposition means that no man can excuse himself from doing his duty by saying he did not know the law on the matter.
Lord Denning
[1960] AC 192, [1959] UKPC 27, [1960] 2 WLR 127, [1960] 1 All ER 177
Bailii
Commonwealth
Cited by:
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.236544

Commissioner of Stamp Duties (Queensland) v Livingston: PC 7 Oct 1964

A testator had died domiciled in New South Wales and with real and personal property both in New South Wales and in Queensland. He left one-third of his real and personal estate to his widow absolutely. She then died intestate, also domiciled in New South Wales, but the husband’s estate was not yet fully administered. No clear residue had yet been ascertained and no final balance attributable to the shares of residue had been determined. The question was whether the deceased widow’s share in her husband’s real and personal estate in Queensland, a share that had devolved on her death on those entitled under her intestacy, was subject to Queensland succession duty. Did she die owning a beneficial interest in any real or personal property in Queensland?
Held: No Queensland succession duty was payable.
The estate of a deceased which devolves on personal representatives comes to them ‘virtute officii . . in full ownership, without distinction between legal and equitable interests’ but they hold the estate ‘for the purpose of carrying out the functions and duties of administration, not for [their] own benefit’.
A beneficiary under an estate has no interest in the property to be administered, but only a right to require the estate to be duly administered, and to receive an appropriate proportion of the nett estate.
Viscount Radcliffe said: ‘their Lordships regard it as clearly established that Mrs. Coulson was not entitled to any beneficial interest in any property in Queensland at the date of her death. What she was entitled to in respect of her rights under her deceased husband’s will was a chose in action, capable of being invoked for any purpose connected with the proper administration of his estate’
Viscount Radcliffe
[1965] AC 694, [1964] UKPC 45, [1964] TR 351, (1964) 43 ATC 325, [1964] 3 All ER 692, [1964] 3 WLR 963
Bailii
Australia
Citing:
Cited – Sudeley v Attorney-General HL 1897
The husband had died leaving part of his residuary estate to his widow. She then died before the estate was fully administered. Both died domiciled in England. The husband’s estate included mortgages of land in New Zealand and the House was asked . .

Cited by:
Cited – Earnshaw and Others v Hartley CA 31-Mar-1999
An administrator de son tort, who was also a beneficiary, held the estate property on trust, and so could not establish adverse possession against the estate during the period of trusteeship. He held a sufficient interest in the assets already. A . .
Cited – Maye, Re (Northern Ireland) HL 6-Feb-2008
The defendant had admitted charges of obtaining property by deception. A confiscation hearing concluded that he had benefitted to a much greater extent than could be recoverd. Before then however both his parents had died, and he stood to inherit . .
Cited – Raymond Saul and Co (A Firm) v Holden and Another; In re Hemming (deceased) ChD 12-Nov-2008
The claimant was sole residuary legatee of his mother’s estate. He became bankrupt, but was released by automatic discharge from the bankruptcy before the administration of the estate was completed. He challenged the solicitors who wished to pay the . .
Cited – Marshall (Inspector of Taxes) v Kerr HL 30-Jun-1994
A settlor by will was deemed to have had an interest as funds were passed to a Jersey Trust. The section merely made or allowed that a variation of a will would not be a taxable event in UK law. It had no other effects. A deed of family arrangement . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.190220

Kuru v State of New South Wales: 12 Jun 2008

Austlii (High Court of Australia) Torts – Trespass to land – Power of police to enter private premises – Police officers went to suburban flat after receiving report of male and female arguing – Police treated report as ‘violent domestic’ – Occupier invited police to ‘look around the flat’ – Occupier later asked police to leave premises – Police did not leave and remained on premises for longer than it would reasonably have taken them to leave – Whether statutory justification for police to remain on premises – Proper construction of Crimes Act 1900 (NSW) ss 357F and 357H – Whether express refusal by occupier immediately terminated authority of police ‘to so enter or remain’ on premises, irrespective of fulfilment of purposes for which entry effected.
Torts – Trespass to land – Power of police to enter private premises – Whether common law justification for police to remain on premises – Whether entry could be justified as directed to preventing a breach of the peace.
Words and phrases – ‘enter or remain’, ‘expressly refused’, ‘breach of the peace’.
[2008] HCA 26
Austlii
Australia
Cited by:
Cited – Gillies v Procurator Fiscal, Elgin HCJ 1-Oct-2008
The police went to the defendant’s flat to find her boyfriend. She refused them access, but when they saw him, the police officers called out that he was under arrest under the 1995 Act, and forced their way past the door and the defendant. The . .

These lists may be incomplete.
Updated: 11 July 2021; Ref: scu.276522

Attorney General of The Turks and Caicos Islands and Another v Richardson (As Trustee In Bankruptcy of Yellowstone Club World Llc): PC 14 Mar 2013

(From the Court of Appeal of the Turks and Caicos Islands) Whether the Registrar was wrong to register a restriction, under section 132 of the Registered Land Ordinance, against property in respect of which the Government claimed an interest in respect of unpaid stamp duty.
Lord Hope, Lord Kerr, Lord Reed, Lord Carnwath, Sir John Chadwick
[2013] UKPC 9
Bailii
England and Wales

Updated: 09 July 2021; Ref: scu.471803

Stanley Yeung Kai Yung and another v Hong Kong and Shanghai Banking Corporation: PC 1980

The shareholder had had his share certificates stolen. The thief lodged forged transfers with stockbrokers, who in good faith sent the share certificates and transfer deeds to the bank for registration and transfer, which was done. The transferee thus came to be registered and he then sold the shares. The innocent shareholder asked for his name to be restored to the register and for related relief. The bank brought third party proceedings against the stockbrokers. The original shareholder succeeded against the bank. As between the bank and the stockbrokers, at first instance and in the Hong Kong Court of Appeal the Judges relied on the Barclay implied indemnity and found the stockbrokers liable to indemnify the bank. The stockbrokers appealed to the Privy Council.
Held: The decision in Barclay was upheld.
Lord Scarman dealt with an argument advanced by the stockbrokers that it was truly the transferee rather than the stockbrokers who had requested the bank to act upon the transfer deeds and to issue new certificates and hence, as it was sought to argue, that, rather than the stockbrokers, it was only the transferee who was responsible for indemnifying the bank. As to that argument he said: ‘It is not the case that, if a principal is liable, his agent cannot be. The true principle of the law is that a person is liable for his engagements (as for his torts) even though he is acting for another, unless he can show that by the law of agency he is to be held to have expressly or impliedly negatived his personal liability. But, upon the view of the letters, which the Courts below accepted and this Board believes to be correct, the brokers cannot avoid personal responsibility for whatever consequences the law attaches to the making of the request and the bank’s compliance with it. It was their request – even though made on Mr Wong’s [the transferee’s] behalf.’
As to an indemnity, after quoting Dugdale v Lovering: ‘This ‘broad principle’, as Lord Davey called it, has been consistently followed, and Mr Leggatt for the brokers disclaimed any intention to invite their Lordships’ Board to review it. Their Lordships are satisfied that it is now firmly embedded in the law: see Bank of England -v- Cutler [1908] 2 KB 208; Secretary of State for India -v- Bank of India Ltd [1938] 65 Ind. App. 286 and Welch -v- Bank of England [1955] Ch 508 (per Harman J at pp. 548-549). ‘ and ‘For these reasons their Lordships find themselves in agreement with the Court of Appeal in holding that there was in the circumstances of this request a promise by the stockbroker to indemnify the bank if, by acting on the request, it caused actionable injury or damage to a third party. The promise was accepted by the bank acting on the request and became a contractual indemnity.’
Lord Scarman
[1981] AC 787, [1980] 2 All ER 599
England and Wales
Citing:
Adopted – Corporation of Sheffield v Barclay and Others HL 3-Jul-1905
Lord Davey said: ‘I think that the appellants [Sheffield Corporation] have a statutory duty to register all valid transfers, and on the demand of the transferee to issue to him a fresh certificate of title to the stock comprised therein. But, of . .
Cited – Dugdale v Lovering 1875
The court adopted the position proposed by Mr Cave, for the Plaintiff: ‘It is a general principle of law when an act is done by one person at the request of another which act is not in itself manifestly tortious to the knowledge of the person doing . .

Cited by:
Cited – Cadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .

These lists may be incomplete.
Updated: 09 July 2021; Ref: scu.242170

Ali v Petroleum Company of Trinidad and Tobago (Trinidad and Tobago): PC 13 Feb 2017

(Trinidad and Tobago) The Board considered the test for when the implication of a contractual term was necessary.
Held: The defendant would not have chosen the claimant for redundancy if he had not accepted voluntary redundancy. The term properly to be implied into the contract was that the defendant would not act to prevent the claimant from completing five years of service, unless the claimant was in repudiatory breach of contract. They had done nothing to prevent the claimant from completing his five year period and they were not in breach of contract.
Lord Sumption JSC in argument in set the test as ”being that a term can only be implied if, without the term, the contract would lack commercial or practical coherence’
Lord Hughes said: ‘The concept of necessity must not be watered down. Necessity is not established by showing that the contract would be improved by the addition. The fairness or equity of a suggested implied term is a essential but not a sufficient pre-condition for inclusion.’
Lord Neuberger of Abbotsbury PSC, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Carnwath, Lord Hughes JJSC
[2017] UKPC 2, [2017] IRLR 432, [2017] ICR 531, [2017] WLR(D) 110, [2017] Bus LR 784
Bailii, WLRD
England and Wales
Cited by:
Cited – Lehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

These lists may be incomplete.
Updated: 28 June 2021; Ref: scu.575376

Allsop v Petroleum Company of Trinidad and Tobago: PC 28 Jul 2005

(Trinidad and Tobago) ‘from the time of his accident, it was known that the appellant would be permanently disabled. So he was going, ultimately, to be paid a lump sum calculated in accordance with section 5(1)(c)(ii) and (2). As at 3 April 1998, however, the degree of his permanent disability had not been finally determined. So the lump sum could not be calculated and he was still receiving weekly payments. Therefore, as of that date, Petroleum had not discharged their obligation to pay the appellant the appropriate lump sum under the statute. In those circumstances he had not received the ‘compensation payable to him under this Act’ and so the one-year time-bar in section 4(3) did not apply to him. The present proceedings were raised in time.’
Lord Nicholls of Birkenhead, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Sir Andrew Leggatt
[2005] ukpc 34
Bailii
England and Wales

Updated: 28 June 2021; Ref: scu.229325

Taunoa v Attorney General for New Zealand: 31 Aug 2007

Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison by the Department of Corrections over the period 1998-2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour.
Held: (majority) Sections 9 and 23(5) establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are ‘degrees of reprehensibility’ evident in sections 9 and 23(5). He considered that section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called outrageous.
(b) Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being conflated in a way which reduces the degree of seriousness required for a section 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the Court can find that there has been a breach of the prohibition in s 9. (d) Henry J agreed with Tipping J.
Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering. It seems that s 9 could extend to: (a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information; (b) cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. Views differed on whether or not this needs to be deliberate.
Elias CJ (dissenting) said that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings, ‘even those behaving badly in prison.’
Elias CJ, Blanchard J, Tipping J, McGrath J
[2007] NZSC 70, [2008] 1 NZLR 429, [2007] 5 LRC 680
Nzlii
New Zealand Bill of Rights Act 1990 9 23(5)
England and Wales
Cited by:
Cited – Takitota v The Attorney General and Others PC 18-Mar-2009
Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

These lists may be incomplete.
Updated: 24 June 2021; Ref: scu.471045

AL and Others (Malaysia BOCS) Malaysia: AIT 3 Jul 2008

AIT 1. Malaysian British Overseas Citizens (BOCs) who have (or have had) Malaysian nationality cannot derive from their status as BOCs a right to enter or reside in the UK.
2. The refusal to recognise such a right is not a breach of Arts 3, 8 or 14 of the ECHR.
3. A Malaysian BOC does not lose Malaysian nationality by a unilateral voluntary act of applying for a BOC passport or of purported renunciation of nationality. Deprival of nationality and acceptance of renunciation require a formal act of the Federal Government and are not automatic or irreversible.
[2009] UKAIT 00026
Bailii
England and Wales

Updated: 09 June 2021; Ref: scu.347495

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

Bankes LJ
[1919] WN 317
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. . .
    Gazette 08-Jan-98, Times 03-Dec-97, [1997] 1 WLR 1627, [1997] UKHL 53, [1998] 1 EGLR 99, [1998] 1 ALL ER 305, [1998] PNLR 197, [1998] Lloyd’s Rep Bank 39, [1998] CLC 116, [1998] 1 Costs LR 108

These lists may be incomplete.
Updated: 09 December 2020; Ref: scu.181342

Broadcasting Corporation of New Zealand v Alex Harvey Industries: 1980

The rule against a newspaper being ordered to disclose the source of its information in defamation proceedings was extended to apply also in slander of goods.
References: [1980] 1 NZLR 163
This case is cited by:

  • Cited – British Steel Corporation v Granada Television Ltd HL 7-May-1980
    The defendant had broadcast a TV programme using material confidential to the plaintiff, who now sought disclosure of the identity of the presumed thief.
    Held: (Lord Salmon dissenting) The courts have never recognised a public interest right . .
    ([1981] AC 1096, [1981] 1 All ER 452, [1980] 3 WLR 774)

These lists may be incomplete.
Last Update: 27 November 2020; Ref: scu.193361

Kondis v State Transport Authority: 16 Oct 1984

(High Court of Australia) Mason J discussed the concept of the personal duty which Lord Wright expounded in Wilson and said that it made it impossible to draw a convincing distinction between the delegation of performance of the employer’s duty to an employee and delegation to an independent contractor. As Mason J said: ‘On the hypothesis that the duty is personal or incapable of delegation, the employer is liable for its negligent performance, whether the performance be that of an employee or that of an independent contractor’ and as to the existence of a non-delegable duty: ‘when we look to the classes of case in which the existence of a non-delegable duty has been recognised, it appears that there is some element in the relationship between the parties that makes it appropriate to impose on the defendant a duty to ensure that reasonable care and skill is taken for the safety of the persons to whom the duty is owed . . The element in the relationship between the parties which generates a special responsibility or duty to see that care is taken may be found in one or more of several circumstances. The hospital undertakes the care, supervision and control of patients who are in special need of care. The school authority undertakes like special responsibilities in relation to the children whom it accepts into its care. If the invitor be subject to a special duty, it is because he assumes a particular responsibility in relation to the safety of his premises and the safety of his invitee by inviting him to enter them . . In these situations the special duty arises because the person on whom it is imposed has undertaken the care, supervision or control of the person or property of another or is so placed in relation to that person or his property as to assume a particular responsibility for his or its safety, in circumstances where the person affected might reasonably expect that due care will be exercised.’
References: [1984] HCA 61, (1984) 154 CLR 672, (1984) 55 ALR 225, (1984) 58 ALJR 531, (1984) Aust Torts Reports 80-311
Links: Austlii
Judges: Mason J
Jurisdiction: Australia
This case cites:

  • Explained – Wilsons and Clyde Coal Co Ltd v English HL 19-Jul-1937 ([1938] AC 57, , [1937] UKHL 2, [1937] 3 All ER 628)
    The employer had entrusted the task of organising a safe system of work to an employee as a result of whose negligence another employee was injured. The employer could not have been held liable for its own negligence, since it had taken all . .

This case is cited by:

  • Cited – Farraj and Another v King’s Healthcare NHS Trust (KCH) and Another CA 13-Nov-2009 (, [2009] EWCA Civ 1203, (2010) 11 BMLR 131, [2010] PIQR P7, [2010] Med LR 1)
    The claimant parents each carried a gene making any child they bore liable to suffer a serious condition. On a pregnancy the mother’s blood was sent for testing to the defendants who sent it on to the second defendants. The condition was missed, . .
  • Cited – Woodland v The Swimming Teachers’ Association and Others QBD 17-Oct-2011 (, [2011] EWHC 2631 (QB), [2012] PIQR P3, [2012] ELR 76)
    The court was asked as to the vicarious or other liability of a school where a pupil suffered injury at a swimming lesson with a non-employee during school time, and in particular whether it had a non-delegable duty to ensure the welfare of children . .
  • Cited – Woodland v Essex County Council CA 9-Mar-2012 (, [2012] EWCA Civ 239, [2013] 3 WLR 853, [2012] ELR 327, [2012] Med LR 419, [2012] PIQR P12, [2012] BLGR 879)
    The claimant had been injured in a swimming pool during a lesson. The lesson was conducted by outside independent contractors. The claimant appealed against a finding that his argument that they had a non-delegable duty of care was bound to fail. . .

These lists may be incomplete.
Last Update: 25 October 2020; Ref: scu.378397

British Columbia (Attorney General) v Canada (Attorney General); An Act respecting the Vancouver Island Railway (Re): 1994

(Supreme Court of Canada) The court strongly criticized the mandatory/directory distinction in statutory interpretation: ‘courts tend to ask, simply: would it be seriously inconvenient to regard the performance of some statutory direction as an imperative?’
References: [1994] 2 SCR 41
Judges: Iacobucci J
Jurisdiction: Canada
This case is cited by:

  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
    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 . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228959

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 the degree and seriousness of the non-compliance.’
References: [1976] 1 NZLR 630
Judges: Cooke J
Jurisdiction: England and Wales
This case is cited by:

  • Cited – Charles v The Judicial and Legal Service Commission and The Disciplinary Tribunal PC 19-Jun-2002 (, , , (Appeal No 34 of 2001), [2002] UKPC 34, [2003] 1 LRC 422)
    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 (, [2005] UKHL 49, , Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
    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 – TTM v London Borough of Hackney and Others CA 14-Jan-2011 (, [2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873)
    The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228957

Society Promoting Environmental Conservation v Canada (Attorney-General): 2003

(Canada – Federal Court of Appeal) The court considered the exercise of its ability to declare a statute invalid: ‘the more serious the public inconvenience and injustice likely to be caused by invalidating the resulting administrative action, including the frustration of the purposes of the legislation, public expense and hardship to third parties, the less likely it is that a court will conclude that legislative intent is best implemented by a declaration of invalidity.’
References: (2003) 228 DLR (4th) 693
Judges: Evans JA
Jurisdiction: Canada
This case is cited by:

  • Cited – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
    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 – TTM v London Borough of Hackney and Others CA 14-Jan-2011 (, [2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873)
    The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228960

Project Blue Sky Inc v Australian Broadcasting Authority: 28 Apr 1998

(High Court of Australia) ‘In our opinion, the Court of Appeal of New South Wales was correct in Tasker v Fullwood in criticising the continued use of the ‘elusive distinction between directory and mandatory requirements’ and the division of directory acts into those which have substantially complied with a statutory command and those which have not They are classifications that have outlived their usefulness because they deflect attention from the real issue which is whether an act done in breach of the legislative provision is invalid. The classification of a statutory provision as mandatory or directory records a result which has been reached on other grounds. The classification is the end of the inquiry, not the beginning. That being so, a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to ‘the language of the relevant provision and the scope and object of the whole statute.”
References: (1998) 194 CLR 355, [1998] HCA 28, (1998) 153 ALR 490, (1998) 72 ALJR 841, (1998) 8 Legal Rep 41
Links: Austlii
Judges: McHugh, Gummow, Kirby and Hayne JJ
Jurisdiction: Australia
This case is cited by:

  • Approved – Regina v Soneji and Bullen HL 21-Jul-2005 (, [2005] UKHL 49, , Times 22-Jul-05, [2005] 3 WLR 303, [2006] 1 AC 340, [2006] 1 Cr App R(S) 79, [2006] Crim LR 167, [2005] 4 All ER 321, [2006] 2 Cr App R 20)
    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 – Ashton , Regina v; Regina v Draz; Regina v O’Reilly CACD 5-Apr-2006 (, [2006] EWCA Crim 794, Times 18-Apr-06, [2007] 1 WLR 181)
    The court considered three appeals where there had been a procedural irregularity, and where the judge had taken some step to overcome that irregularity. In two cases the Crown Court judge had reconstituted himself as a district judge to correct a . .
  • Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010 (, [2010] EWHC 1505 (QB), [2010] RA 285)
    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 – TTM v London Borough of Hackney and Others CA 14-Jan-2011 (, [2011] EWCA Civ 4, [2011] HRLR 14, [2011] PTSR 1419, [2011] Med LR 38, [2011] 1 WLR 2873)
    The claimant had been found to have been wrongfully detained under section 3. He appealed against rejection of his claim for judicial review and for damages. The court found that his detention was lawful until declared otherwise. He argued that the . .
  • Cited – Stockton-On-Tees Borough Council v Latif Admn 13-Feb-2009 (, [2009] EWHC 228 (Admin))
    The council appealed against a decision that the crown court had jurisdiction to extend the time for appeal against refusal of a private hire vehicle licence.
    Held: The court did not have the jurisdiction it used: ‘The terms of the section 300 . .
  • Cited – Abdi, Regina v CACD 31-Jul-2007 (, [2007] EWCA Crim 1913)
    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, . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.228958

Jamaica Flour Mills Ltd v The Industrial Disputes Tribunal and Another: PC 23 Mar 2005

(Jamaica) The company having been taken over summarily dismissed three employees who complained to their union, and the remaining workforce were called out on strike. There was a disagreement as to whether there was a genuine redundancy situation. The tribunal ordered the strike to cease, and for the employees to be re-instated.
Held: No estoppel was established against the employees by having cashed their redundancy cheques. The section allowed a mandatory re-instatement, although ‘Reinstatement does not necessarily require that the employee be placed at the same desk or machine or be given the same work in all respects as he or she had been given prior to the unjustifiable dismissal. If, moreover, in a particular case, there really is no suitable job into which the employee can be re-instated, the employer can immediately embark upon the process of dismissing the employee on the ground of redundancy, this time properly fulfilling his obligations of communication and consultation under the Code.’
References: [2005] UKPC 16
Links: Bailii, PC
Judges: Lord Steyn, Lord Hope of Craighead, Lord Scott of Foscote, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
This case cites:

  • Cited – Scarf v Jardine HL 13-Jun-1882 ([1882] 7 AC 345, [1882] UKLawRpAC 17, )
    If there has been a conclusive election by the plaintiffs to adopt the liability of one of two persons, alternatively liable, they cannot afterwards make the other liable. The two claims are mutually exclusive or impossible in law. To establish an . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223878

Commissioner of Stamp Duties of New South Wales v Perpetual Trustee Co Ltd: PC 1943

The Board consideerd the application of the retention of benefit rules. Lord Russell of Killowen said: ‘the entire exclusion of the donor from . . enjoyment which is contemplated . . is entire exclusion from . . enjoyment of the beneficial interest in property which has been given by the gift, and . . enjoyment by the donor of some beneficial interest therein which he has not included in the gift is not inconsistent with the entire exclusion from . . enjoyment which the sub-section requires.’
References: [1943] AC 425
Judges: Lord Russell of Killowen
Jurisdiction: Australia
This case cites:

  • Cited – Grey (Earl) v Attorney General HL 1900 ([1900] AC 124)
    The donor conveyed land to his son by way of gift but reserved an annual rentcharge during his life which was charged on the land conveyed and which his son covenanted to pay (together with the other liabilities of the donor), and retained the right . .

This case is cited by:

  • Approved – St Aubyn v Attorney General HL 12-Jul-1951 ([1952] AC 15, , [1951] UKHL 3, [1951] 2 All ER 473)
    The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .
  • Cited – Ingram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997 (Times 11-Sep-97, Gazette 10-Sep-97, , [1997] EWCA Civ 2212, [1997] 4 All ER 395, [1997] STC 1234)
    The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
    Held: . .
  • Cited – In re Nichols, deceased CA 2-Jan-1975 ([1975] 1 WLR 534)
    The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
    Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .

These lists may be incomplete.
Last Update: 22 September 2020; Ref: scu.223764

Bhola v The State: PC 30 Jan 2006

References: [2006] UKPC 10
Links: Bailii
Ratio: Trinidad and Tobago
Jurisdiction: Commonwealth
This case is cited by:

  • Cited – Simmons and Another v Regina PC (Bailii, [2006] UKPC 19)
    (Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
    Held: The defendant would have failed in a submission of no . .

(This list may be incomplete)

Last Update: 18 June 2019
Ref: 238917

Caltex Oil (Australia) Pty Ltd v Dredge Willemstad”: 9 Dec 1976″

References: [1976] HCA 65, (1976) 136 CLR 529
Links: Austlii
Coram: Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
Ratio: Austlii (High Court of Australia) Negligence – Duty of care – Foreseeability of harm – Economic loss not consequential upon damage to person or property – Damage to property of one person – Economic loss suffered by person as a result – Pipeline carrying oil to plaintiff’s depot – Damaged by defendant’s negligence – Supply interrupted – Pipeline and depot owned by different persons – Expense incurred by plaintiff in arranging alternative means of delivery – Whether recoverable – Remoteness of loss or damage.
Shipping and Navigation – Action in rem – Action against ship – Negligence – Master not sued as defendant – Appearance entered by master – No proprietary interest in ship – Whether master liable to judgment.
A pipeline was damaged and the owner of the terminal (who was not the owner of the pipeline) incurred expense in transporting refined oil to the terminal while the pipeline was out of use.
Held: The plaintiff was entitled to recover that expense from the dredger which had damaged the pipeline. Jacobs J said that the duty of care owed to the owner of the pipeline was also owed to ‘a person whose property was in such physical propinquity to the place where the acts of omissions of the dredge . . had their physical effect that a physical effect on the property of that person was foreseeable as the result of such acts or omissions’.
This case is cited by:

(This list may be incomplete)
Jurisdiction: Australia

Last Update: 13-Jul-18
Ref: 331084

Clayton v Heffron: 17 Oct 1960

References: (1960) 105 CLR 214
Links: Austilii
Coram: Dixon CJ, McTiernan, Fullagar, Kitto, Taylor, Menzies and Windeyer JJ
Ratio: (High Court of Australia) An Act was proposed to be introduced by the legislature to amend the constitution of New South Wales by abolishing the Legislative Council. There would be required first a vote in favour of that in a referendum. The proposed Act was to be passed under a procedure in s.5B of the New South Wales Constitution Act 1902-1956, whereby legislation could be enacted ultimately without the consent of the Legislative Council. S.5B had been introduced into the New South Wales Constitution by an enactment of the New South Wales legislature under s.5 of the Constitution Act which went: ‘The Legislature shall, subject to the provisions of the Commonwealth of Australia Constitution Act, have power to make laws for the peace, welfare and good government of New South Wales in all cases whatsoever.’
Held: The Act was effective.
This case is cited by:

  • Cited – Regina on the Application of Jackson and others v HM Attorney General CA (Bailii, [2005] EWCA Civ 126, Times 17-Feb-05)
    The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
  • Cited – Jackson and others v Attorney General HL (House of Lords, [2005] UKHL 56, Times 14-Oct-05, Bailii, [2006] 1 AC 262, [2005] 2 WLR 87, [2005] 4 All ER 1253)
    The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .

(This list may be incomplete)

Last Update: 21 February 2017
Ref: 222726

Banfai v Formula Fun Centre Inc; 13 Dec 1984

References: 1984 CanLII 2198, 34 CCLT 171(HCJ), [1984] OJ No 3444
Links: Canlii
Coram: O’Leary J
Ratio: Canlii Ontario › Superior Court of Justice – The defendants operated an automobile-racing amusement ride on land adjacent to the plaintiffs’ motels. The plaintiffs and their customers complained of the noise emanating from the defendants’ ride. The plaintiffs brought an action in nuisance against the defendants seeking damages and an injunction.
Held, there should be judgment for the plaintiffs.
The noise created by the racing cars was not in keeping with the other noises in the vicinity. Generally speaking it was considerably louder and sharper than those noises, and was pervasive, intrusive, and annoying, while the other sounds of the area generally were not. In addition, the fumes and smoke from the track were completely out of keeping with such air pollution as otherwise existed in the area. The noise from the track by itself constituted an unreasonable, undue and material interference with the plaintiffs’ enjoyment of their property. The complaints of the plaintiffs did not arise from any abnormal sensitivity or delicacies on their part. The noise from the track was such that a high percentage of normal persons would find the noise disturbing and unacceptable. It was a noise that the plaintiffs should not have to put up with, given the character of the area in which they conduct their business.
An owner of land who leases it knowing the tenant is going to use it for an automobile-racing amusement ride is liable for the nuisance created by the tenant. Although normally an owner is not liable for the nuisance committed by a tenant, where the nuisance arises ‘from the natural and necessary result of what the landlord authorized’ or ‘the use from which the damage or nuisance necessarily arises was plainly contemplated by the lease’, then the owner-landlord is liable.
This case is cited by:

  • Cited – Coventry and Others v Lawrence and Another (No 2) SC (Bailii, [2014] UKSC 46, [2014] WLR(D) 332, UKSC 2012/0076, SC Summary, SC, WLRD, [2014] PTSR 1014, [2014] 4 All ER 517, [2015] 1 AC 106, [2014] 3 WLR 555, [2014] HLR 42, [2014] 5 Costs LO 759, [2014] 2 P &CR 19, SC Summary Video)
    Consequential judgment. Mr Coventry had been found liable in the principle judgment in nuisance to the appellant neighbours. The Court was now asked as to several matters arising. First, to what extent were the defendants’ landlords liable to the . .

(This list may be incomplete)

Last Update: 06-Sep-16
Ref: 551696

Alati v Kruger; 29 Nov 1955

References: (1955) 94 CLR 216, [1955] HCA 64, [1955] ALR 1047
Links: Austlii
Coram: Dixon CJ, Webb, Fullagar, Kitto and Taylor JJ
Ratio: (High Court of Australia) The remedy of rescission is only available if the parties can be returned to their respective positions before the contract was made. Dixon CJ said: ‘It is not that equity asserts a power by its decree to avoid a contract which the defrauded party himself has no right to disaffirm, and to revest property the title to which the party cannot affect. Rescission from misrepresentation is always the act of the party himself . . The function of a court in which proceedings for rescission are taken is to adjudicate upon the validity of a purported disaffirmance as an act avoiding the transaction ab inito, and, if it is valid, to give effect to it and make appropriate consequential orders . . The difference between the legal and the equitable rules on the subject simply was that equity, having means which the common law lacked to ascertain and provide for the adjustments necessary to be made between the parties in cases where a simple handing back of property or repayment of money would not put them in as good a position as before they entered into their transaction, was able to see the possibility of restitutio in integrum, and therefore to concede the right of a defrauded party to rescind, in a much wider variety of cases than those which the common law could recognize as admitting of rescission.’ and
‘When a contract is rescinded by reason of a recognised vitiating factor, the contract, as just noted, is set aside from the beginning. In such a case there can be no claim for damages for breach of contract, because in such situations there is no contract. Equally, if a claim is made by the victim for damages for breach of contract, there can be no rescission of the contract as the victim has by suing for breach clearly elected not to rescind.’
This case is cited by:

  • Approved – O’Sullivan v Management Agency and Music Limited CA ([1985] QB 428, (1984) 2 IPR 499, [1984] 3 WLR 448, [1985] 3 All ER 351)
    The claimant alleged undue influence. As a young singer he had entered into a management agreement with the defendant which he said were prejudicial and unfair. The defendant argued that the ‘doctrine of restitutio in integrum applied only to the . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 470685

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

References: [2010] FCA 984
Links: Austlii
Coram: Bennett J
Ratio: Austlii (Federal Court of Australia)
COPYRIGHT – respondent reproduces headlines and creates abstracts of articles in the applicant’s newspaper – whether reproduction of headlines constitutes copyright infringement – whether copyright subsists in individual newspaper headlines, in an article with its headline, in the compilation of all the articles and headlines in a newspaper edition and in the compilation of the edition as a whole – literary work – copyright protection for titles – use of headline as citation to article – policy considerations – originality – authorship – whether presumption of originality for anonymous works available – whether work of joint authorship – whether the headlines constitute a substantial part of each compilation – whether the work of writing headlines is part of the work of compilation – whether fair dealing for the purpose of or associated with reporting news
ESTOPPEL – whether applicant estopped from asserting copyright infringement by respondent – applicant has known for many years that headlines of the applicant’s newspaper are reproduced in the abstracting service – applicant had subscribed to and resupplied the abstracting service – whether respondent relied on an assumption that the applicant will not assert copyright infringement by reproduction by headlines – whether applicant created or encouraged the assumption – detriment – whether unconscionable to depart from assumption
Bennett J said: ‘In my view, the headline of each article functions as the title of the article . . It may be a clever title. That is not sufficient. Headlines are, like titles, simply too insubstantial and too short to qualify for copyright protection as literary works. The function of the headline is as a title to the article as well as a brief statement of its subject, in a compressed form comparable in length to a book title or the like. It is, generally, too trivial to be a literary work, much as a logo was held to be too trivial to be an artistic work . . It may be that evidence directed to a particular headline, or a title of so extensive and of such a significant character, could be sufficient to warrant a finding of copyright protection . . but that is not the case here . . Fairfax claims copyright in the headlines as a class of work, based on the evidence of a general practice that headlines are determined by staff and settled at meetings of staff to provide a title to a story which also fits into the format of the page . . That is insufficient to overcome the reasoning for the established practice of denying copyright protection to titles which is the apt characterisation for headlines as a class . . The need to identify a work by its name is a reason for the exclusion of titles from copyright protection in the public interest. A proper citation of a newspaper article requires not only reference to the name of the newspaper but also reproduction of the headline . . If titles were subject to copyright protection, conventional bibliographic references to an article would infringe. Such considerations may well be a reason for the fact that headlines and ‘short phrases’ are excluded from copyright in the United States . . In my view, to afford published headlines, as a class, copyright protection as literary works would tip the balance too far against the interest of the public in the freedom to refer or be referred to articles by their headlines.’
This case is cited by:

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 470926

Taunoa v Attorney General for New Zealand; 31 Aug 2007

References: [2007] NZSC 70, [2008] 1 NZLR 429, [2007] 5 LRC 680
Links: Nzlii
Coram: Elias CJ, Blanchard J, Tipping J, McGrath J
Ratio: Supreme Court of New Zealand – The claimants sought damages after their treatment in prison. They challenged the legality of a behaviour modification regime which five prisoners had been subjected to. The regime had been operated at Auckland Prison by the Department of Corrections over the period 1998-2004, to deal with extremely disruptive prisoners. There was a distinctly punitive element to the regime. The point of the regime was to change the prisoners’ behaviour. The regime involved a highly controlled environment and severe restrictions on association and maximum security conditions, which could become progressively less restrictive depending on a prisoner’s behaviour.
Held: (majority) Sections 9 and 23(5) establish a hierarchy of proscribed conduct:
(a) Blanchard J considered that there are ‘degrees of reprehensibility’ evident in sections 9 and 23(5). He considered that section 9 is concerned with conduct on the part of the state and its officials which is to be utterly condemned as outrageous and unacceptable in any circumstances; section 23(5) is confined in its application to persons deprived of their liberty. It proscribes conduct which is unacceptable in our society, but is of a lesser order, not rising to a level deserving to be called outrageous.
(b) Tipping J considered that s 9 can be seen as prohibiting inhumane treatment, whereas s 23(5) requires prisoners to be treated with humanity. He warned that there is a danger of these concepts being conflated in a way which reduces the degree of seriousness required for a section 9 breach. He considered that s 9 is reserved for truly egregious cases which call for a level of denunciation of the same order as that appropriate to torture.
(c) McGrath J considered that s 9 affirms the rights of all not to be tortured or subjected to cruel, degrading or disproportionately severe treatment or punishment, while s 23(5) focuses on the rights of those deprived of their liberty to be treated with respect for human dignity. He considered that there is a hierarchy between the two sections, and that they are separate, though complementary, affirmations of rights. That hierarchal relationship reflects the graduated standards of the two provisions in the relative gravity of breaches of the rights they respectively affirm. There is a high threshold to be met before the Court can find that there has been a breach of the prohibition in s 9. (d) Henry J agreed with Tipping J.
Tipping J noted that conduct breaching s 9 will usually involve intention to harm or at least consciously reckless indifference as to the causing of harm, as well as significant physical or mental suffering. It seems that s 9 could extend to: (a) torture involving the deliberate infliction of severe physical or mental suffering for a prescribed purpose, such as the obtaining of information; (b) cruel treatment which inflicts suffering, or results in severe or substantial suffering or distress. Views differed on whether or not this needs to be deliberate.
Elias CJ (dissenting) said that ss 9 and 23(5) are not simply different points of seriousness on a continuum, but that they involve distinct, though overlapping rights. She considered that s 9 is concerned with the prevention of treatment properly characterised as inhuman, amounting to a denial of humanity; s 23(5) is directed to an additional, but complementary requirement that prisoners be treated humanely. She considered that denial of humanity could occur through deprivation of basic human needs, including personal dignity and physical and mental integrity. In contrast, inhumane treatment was treatment that was not fitting for human beings, ‘even those behaving badly in prison.’
Statutes: New Zealand Bill of Rights Act 1990 9 23(5)
This case is cited by:

  • Cited – Takitota v The Attorney General and Others PC (Bailii, [2009] UKPC 11, 26 BHRC 578)
    Bahamas – The claimant appeald as to the amount of compensation awarded to him for his unlawful detention for over eight years, in appalling prison conditions. The Court of Appeal categorised his treatment not only as ‘less than humane’ but as a . .

(This list may be incomplete)

Last Update: 29-Aug-16
Ref: 471045

Turner v Bladin; 20 Apr 1951

References: (1951) 82 CLR 463, [1951] HCA 13
Links: Austlii
Coram: Williams, Fullagar, and Kitto JJ
Ratio: Austlii (High Court of Australia) Contract – Specific performance – Outstanding obligations on either side – Contract of sale completely performed by vendor – Decree of specific performance against purchaser to enforce payment of purchase price.
Statute of Frauds – Action – Debt – Sale of interest in land – Contract not evidenced by writing – Consideration fully executed by vendor – Action by vendor in indebitatus assumpsit to recover purchase price or instalments thereof – Instruments Act 1928-1936 (No. 3706 – No. 4370) (Vict.), s. 128.

Last Update: 29-Aug-16
Ref: 395052

Birmingham v Renfrew; 11 Jun 1937

References: (1937) 57 CLR 666, [1937] HCA 52
Links: Austlii
Coram: Dixon J, Latham CJ
Ratio: (High Court of Australia) Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust. Latham CJ described a mutual will arrangement as ‘a trust which is declared by the law to affect the conscience of [the survivor’s] executor and of the volunteers who are devisees or legatees under his will.’
Dixon J set down the principles for mutual wills: ‘It has long been established that a contract between persons to make corresponding wills gives rise to equitable obligations when one acts on the faith of such an agreement and dies leaving his will unrevoked so that the other takes property under its dispositions. It operates to impose upon the survivor an obligation regarded as specifically enforceable. It is true that he cannot be compelled to make and leave unrevoked a testamentary document and if he dies leaving a last will containing provisions inconsistent with his agreement it is nevertheless valid as a testamentary act. But the doctrines of equity attach the obligation to the property. The effect is, I think, that the survivor becomes a constructive trustee and the terms of the trust are those of the will he undertook would be his last will . . The purpose of an arrangement for corresponding wills must often be, as in this case, to enable the survivor during his life to deal as absolute owner with the property passing under the will of the party first dying. That is to say, the object of the transaction is to put the survivor in a position to enjoy for his own benefit the full ownership so that, for instance, he may convert it and expend the proceeds if he choose. But when he dies he is to bequeath what is left in the manner agreed upon. It is only by the special doctrines of equity that such a floating obligation, suspended, so to speak, during the lifetime of the survivor can descend upon the assets at his death and crystallize into a trust. No doubt gifts and settlements, inter vivos, if calculated to defeat the intention of the compact, could not be made by the survivor and his right of disposition, inter vivos, is, therefore, not unqualified. But, substantially, the purpose of the arrangement will often be to allow full enjoyment for the survivor’s own benefit and advantage upon condition that at his death the residue shall pass as arranged.’
This case cites:

  • Cited – Dufour v Pereira ((1769) 1 Dick 419, (1769) 2 Harg Jurid Arg 304, Commonlii, [1769] EngR 63, (1769) Dick 419, (1769) 21 ER 332)
    The court was asked as to the validity and effect of a single joint will.
    Held: Lord Camden considered the nature of joint or mutual wills. Lord Camden LC said: ‘The parties by mutual will do each of them devise, upon the engagement of the . .
  • Cited – Re Oldham ([1925] Ch 75)
    The court was asked whether an agreement for mutual wills should be inferred. . .

(This list may be incomplete)
This case is cited by:

  • Cited – Goodchild and Another v Goodchild CA (Times 12-May-97, Bailii, [1997] EWCA Civ 1611, [1997] 3 All ER 63, [1997] 1 WLR 1216)
    The deceased and his wife made wills in virtually identical form. The husband changed his will after their divorce, but his son and other wife claimed that the couple had intended the wills to be part of a larger arrangement of their affairs, . .
  • Cited – In re Cleaver dec’d, Cleaver v Insley ChD ([1981] 1 WLR 939, [1981] 2 All ER 1018)
    Cases of mutual wills are only one example of a wider category of cases, for example secret trusts, in which a court of equity will intervene to impose a constructive trust.
    Nourse J said: ‘The principle of all these cases is that a court of . .
  • Cited – Goodchild v Goodchild ChD (Times 22-Dec-95, Ind Summary 08-Jan-96, [1996] 1 WLR 694)
    The husband and wife had made mirror wills. They divorced, and the husband made a new will. After his death, the child and the third wife of the deceased made a claim against the second wife.
    Held: The wills were in identical terms, but . .
  • Cited – The Thomas and Agnes Carvel Foundation v Carvel and Another ChD (Bailii, [2007] EWHC 1314 (Ch), [2007] 4 All ER 81)
    The husband and wife had made mutual wills in the US with an express agreement not to make later alterations or dispositions without the agreement of the other or at all after the first death. The wife survived, but having lost the first will made a . .
  • Cited – Walters v Olins CA (Bailii, [2008] EWCA Civ 782, [2009] Ch 212, [2009] 2 WLR 1, [2008] WTLR 1449)
    The claimant appealed against a finding that he had entered into a mutual will contract with the deceased.
    Held: It is a legally necessary condition of mutual wills that there is clear and satisfactory evidence of a contract between two . .
  • Cited – Healey v Brown ChD ([2002] 19 EG 147, Bailii, [2002] EWHC Ch 1405)
    The two deceased had made mutual wills bequeathing the family home. The survivor transferred the property during his life to defeat the agreement. It was now said that the arrangement fell foul of the 1989 Act and was unenforceable.
    Held: . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 183791

Perre v Apand Pty Ltd; 12 Aug 1999

References: (1999) 198 CLR 180, [1999] HCA 36, [1999] 64 ALR 606, [1999] 64 73 ALJR 1190
Links: Austlii
Coram: Kirby J
Ratio: (High Court of Australia) The plaintiff farmers sought damages for financial losses incurred after the defendant negligently introduced a disease. Although the disease was not shown to have spread, neighbouring farm owners suffered economic loss by the imposition of a potato marketing ban in Western Australia attributable to the proximity of their farms to the outbreak of the disease, and sued the defendant for what was therefore pure economic loss (the absence of any escape of the disease preventing a claim under Rylands v. Fletcher).
Held: An important criterion for the imposition of liability for economic loss lay in ascertaining the extent to which the plaintiff was vulnerable to incurring loss by reason of the defendant’s conduct, and the extent to which that was or should have been apparent to the defendant.
Kirby J: ‘As against the approach which I favour, it has been said that the three identified elements are mere ‘labels’. So indeed they are. . . Labels are commonly used by lawyers. They help steer the mind through the task in hand.’
This case is cited by:

  • Cited – HM Customs and Excise v Barclays Bank Plc HL (Bailii, [2006] UKHL 28, [2007] 1 AC 181, [2006] 4 All ER 256, [2006] 2 LLR 327, [2006] 3 WLR 1, [2006] 2 Lloyd’s Rep 327, [2006] 1 CLC 1096)
    The claimant had served an asset freezing order on the bank in respect of one of its customers. The bank paid out on a cheque inadvertently as to the order. The Commissioners claimed against the bank in negligence. The bank denied any duty of care. . .
  • Cited – Calvert v William Hill Credit Ltd ChD (Bailii, [2008] EWHC 454 (Ch))
    The claimant said that the defendant bookmakers had been negligent in allowing him to continue betting when they should have known that he was acting under an addiction. The defendant company had a policy for achieving responsible gambling, . .

(This list may be incomplete)

Last Update: 28-Aug-16
Ref: 242687