Re Sigsworth: Bedford v Bedford: 1935

The court was asked to answer a question on the assumed premise that a woman had been murdered by her son and had died intestate. The question for decision was whether the forfeiture rule prevented the son from benefiting under the intestacy provisions of the 1925 Act.
Held: Clauson J said that the forfeiture rule applied: ‘The question, however, which I have to decide is whether the principle grounded on public policy which prevents a sane murderer from benefiting under the will of his victim applies with equal force to the case of the victim dying intestate so as to preclude the murderer (or his personal representative) from claiming, under the provisions of s 46 of the Act, the property in respect of which his victim died intestate.
In my judgment the principle of public policy which precludes a murderer from claiming a benefit conferred on him by his victim’s will precludes him from claiming a benefit conferred on him, in a case of his victim’s intestacy, by statute. The principle (to quote the language of Fry LJ) must be so far regarded in the construction of Acts of Parliament that general words which might include cases obnoxious to the principle must be read and construed as subject to it. This view of the law is adopted by Fry LJ in Cleaver’s case [1892] 1 QB 147, 156 and by Farwell J in In re Pitts [1931] 1 Ch 546, 550, and must in my judgment prevail over the view taken by Joyce J in In re Houghton [1915] 2 Ch 173, 177; and whether or not the opinions so expressed are binding on me, I agree with them and adopt them as my own.’
A person cannot bring an action based on his own wrong. As to the doctrine of judicial precedent ‘we fill in the gaps.’

Judges:

Denning J, Clauson J

Citations:

[1935] Ch 89

Statutes:

Administration of Estates Act 1925

Constitutional, Wills and Probate

Updated: 30 April 2022; Ref: scu.226975

Regina v Secretary of State for the Home Department ex parte Ruddock: QBD 1987

The claimant sought judicial revew of arrangements made to tap his telephone. Given the importance of the point of law at issue, the court allowed an application which might otherwise not have been granted for delay. The imperative to have some degree of judicial supervision of government is manifest; to preclude judicial supervision would be a ‘draconian and dangerous step’.
Taylor J rejected an argument that the Secretary of State case could ‘invariably maintain silence’, observing: ‘I recognise there could occur a case where the issue raised was so sensitive and the revelations necessarily following its decision so damaging to national security that the court might have to take special measures (for example sitting in camera or prohibiting the mention of names). Conceivably (although I would reserve the point) in an extreme case the court might have to decline to try the issues. But in all such cases, cogent evidence of potential damage to national security flowing from the trial of the issues would have to be adduced, whether in open court or in camera, to justify any modification of the court’s normal procedure. Totally to oust the court’s supervisory jurisdiction in a field where ex hypothesi the citizen can have no right to be consulted is a draconian and dangerous step indeed. Evidence to justify the court’s declining to decide a case (if such a course is ever justified) would need to be very strong and specific.

Judges:

Taylor J

Citations:

[1987] 1 WLR 1482, [1987] 2 All ER 518

Jurisdiction:

England and Wales

Judicial Review, Constitutional

Updated: 30 April 2022; Ref: scu.223700

Cited – Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 30 April 2022; Ref: scu.222759

Attorney General for Ontario v Attorney General for Canada: PC 1924

A provincial legislature was said to have exceeded its powers and contravened the British North America Act.
Held: Any provision made by the constitution as to the security of status and tenure of the judiciary applies to all individual judges later appointed in exercise of an analagous jurisdiction, whatever name is actually given to the court in which they sit.

Citations:

[1925] AC 750, 94 LJPC 132, (1924) 4 DLR 520

Cited by:

Commonwealth, Constitutional

Updated: 30 April 2022; Ref: scu.211409

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 parliament established new bodies exercising similar functions but with different names and less protection of the independence of the officers carrying out judicial type activities.

Judges:

Viscount Simonds

Citations:

[1957] 2 All ER 45, [1957] AC 288, [1957] 2 WLR 607

Jurisdiction:

Australia

Cited by:

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 – Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.211408

Ladore v Bennett: PC 1939

Parliament cannot sidestep a restriction in the constitution by a colourable device.

Citations:

[1939] 3 All ER 98, [1939] AC 468, 108 LJPC 69

Judges:

Lord Morris of Borth-y-Gest

Citations:

[1967] 1 AC 115

Cited by:

Constitutional, Media

Updated: 29 April 2022; Ref: scu.182067

Attorney-General, ex rel McWhirter v Independent Broadcasting Authority: CA 1972

The court should not interfere in decisions made by broadcasting companies allocating television time to parties before elections unless it is of the view that they were irrational in not giving enough weight to those matters in allocating it only one broadcast.
The Bill of Rights does not restrict the Crown’s prerogative powers in relation to foreign affairs: ‘the Crown retained, as fully as ever, the prerogative of the treaty-making power’ and ‘Even though the Treaty of Rome has been signed, it has no effect, so far as these courts are concerned, until it is made an Act of Parliament. Once it is implemented by an Act of Parliament, these courts must go by the Act of Parliament. Until that day comes, we take no notice of it.’

Judges:

Lord Denning MR

Citations:

[1973] 1 QB 629, [1972] CMLR 882

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v British Broadcasting Corporation, ex parte Referendum Party; Regina v Independent Television Commission, ex parte Referendum Party Admn 24-Apr-1997
The Referendum Party challenged the allocation to it of less time for election broadcasts. Under the existing agreements, having fielded over 50 candidates, they were allocated only five minutes.
Held: Neither the inclusion of past electoral . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Media, Elections, Constitutional

Updated: 29 April 2022; Ref: scu.181972

Updated: 21 April 2022; Ref: scu.588272

Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others: SC 22 Oct 2014

Constitutional Status of Chanel Islands considered

The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the United Kingdom and the Bailiwicks of Guernsey and Jersey, and as to the constitutional relationship between the courts and a representative or democratically elected legislature.
Held: The Channel Islands . . are not part of the United Kingdom. Nor have they ever been British colonies, or British Overseas Territories as the few remaining colonies are now termed. They are Crown Dependencies, enjoying a unique relationship with the United Kingdom and the rest of the British Commonwealth through the Crown, in the person of the Sovereign . . The Channel Islands consist of the Bailiwicks of Jersey and Guernsey. The Bailiwick of Guernsey includes the islands of Alderney and Sark, which have their own legislative and executive institutions. Not being part of the United Kingdom, unlike Wales, Scotland and Northern Ireland, the Bailiwicks are not represented in the Parliament of the United Kingdom. They are economically self-sufficient. They pay no taxes to the United Kingdom and they receive no contribution from the revenues of the United Kingdom. They were not settled by, or conquered by or ceded to, the United Kingdom as colonies. Their link with the United Kingdom and the rest of the Commonwealth is through the Crown, not in the sense of the ultimate executive authority in the United Kingdom, but in the sense of the person of the Sovereign. The Sovereign’s personal representative in each Bailiwick is the Lieutenant Governor.
The Government’s political accountability to Parliament and its legal accountability to the courts are not mutually exclusive, but may overlap.

Judges:

Lord Neuberger, Lady Hale, Lord Mance, Lord Clarke, Lord Reed

Citations:

[2014] UKSC 54, [2014] 3 WLR 1142, [2015] 1 AC 276, [2014] WLR(D) 446, UKSC 2013/0155

Links:

Bailii, Bailii Summary, WLRD, SC Video Summary, SC, SC Summary

Statutes:

European Convention on Human Rights 6

Jurisdiction:

England and Wales

Citing:

Cited – Barclay and Others, Regina (on The Application of) v Secretary of State for Justice and Others SC 1-Dec-2009
The claimants said that restrictions within the constitution of Sark on who could sit in the Chief Pleas were incompatible with their human rights. The claimants variously owned property on Sark but had restricted rights to vote and stand.
Appeal from – Barclay, and Another, Regina (on The Application of) v Secretary of State for Justice and Lord Chancellor and Others Admn 9-May-2013
The applicants had successfully challenged some provisions in the constitution of Sark, and amending legislation had been brought in, but they now complained of the new provisions.
Held: Where a challenge was intended to the advice given by UK . .
Cited – Minquiers and Ecrehos (France v United Kingdom) (1951-1953) ICJ 17-Nov-1953
The Treaty of Calais of 1360 contained a clause confirming that the King of England shall have and hold all the islands which he ‘now holds’ . .
Cited – Madzimbamuto v Lardner-Burke PC 23-Jul-1968
(Southern Rhodesia) The Board considered a submission that legal effect should be given to a convention that the UK Parliament would not legislate without the consent of the government of Southern Rhodesia on matters within the competence of the . .
Cited – Regina v Secretary of State For The Home Department, Ex Parte Launder HL 13-Mar-1997
The question arose as to whether or not the decision of the Secretary of State to extradite the applicant to Hong Kong would have amounted to a breach of the European Convention on Human Rights. Although the Convention was not at that time in force . .
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: . .
Cited – Ghaidan v Godin-Mendoza HL 21-Jun-2004
Same Sex Partner Entitled to tenancy Succession
The protected tenant had died. His same-sex partner sought a statutory inheritance of the tenancy.
Held: His appeal succeeded. The Fitzpatrick case referred to the position before the 1998 Act: ‘Discriminatory law undermines the rule of law . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
Cited – Jersey Fishermen’s Association Ltd and others v States of Guernsey PC 2-May-2007
Guernsey. The Board considered the limits of the power of the States of Guernsey to legislate by Ordinance. . .
Cited – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – 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 – Lautsi v Italy ECHR 18-Mar-2011
(Grand Chamber) The applicants complained that the presence in all state schoolrooms of a crucifix on the wall infringed the principle of secularism. The routine presence in state school classrooms of a crucifix, which was not used for worship, . .
Cited – Al-Khawaja v The United Kingdom; Tahery v The United Kingdom ECHR 15-Dec-2011
(Grand Chamber) The claimants complained of the use against them of hearsay evidence in their trials.
Held: ‘the underlying principle is that the defendant in a criminal trial should have an effective opportunity to challenge the evidence . .
Cited – Barclay, and Another, Regina (on The Application of) v Secretary of State for Justice and Lord Chancellor and Others Admn 9-May-2013
The applicants had successfully challenged some provisions in the constitution of Sark, and amending legislation had been brought in, but they now complained of the new provisions.
Held: Where a challenge was intended to the advice given by UK . .
Cited – SAS v France ECHR 1-Jul-2014
. .

Cited by:

Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Routier and Another v Revenue and Customs SC 16-Oct-2019
A Jersey Charity created under a will of a Jersey resident was transfer to the UK, and reregistered with the UK Charity Commission. The Revenue sought to apply Inheritance Tax.
Held: Jersey was to be considered a third country for the purpose . .
Lists of cited by and citing cases may be incomplete.

Statute’s Mischief May be Inspected

The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may look outside a statute in order to identify the ‘mischief’ Parliament was seeking to remedy.
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Lord Simon of Glaisedale said: ‘But the technique of a draft Bill with commentary is so common nowadays in reports to Parliament as to excuse, I hope, some expatiation on the matter. The argument against recourse to such a commentary is that if what Parliament or parliamentarians (or, indeed any promulgators of a written instrument) think is the meaning of what is said is irrelevant, so must be the opinion of any draftsman, including the draftsman of a Bill annexed to a report to Parliament. But I confess that I find this less than conclusive. In essence, drafting, enactment and interpretation are integral parts of the process of translating the volition of the electorate into rules which will bind themselves. If it comes about that the declared meaning of a statutory provision is not what Parliament meant, the system is at fault. Sometimes the fault is merely a reflection of human fallibility. But where the fault arises from a technical refusal to consider relevant material, such refusal requires justification. The commentary on a draft Bill in a report to Parliament is not merely an expression of opinion – even if it were only that, it would be an expression of expert opinion, and I can see no more reason for excluding it than any other relevant matter of expert opinion. But actually it is more: that experts publicly expressed the view that a certain draft would have such-and-such an effect is one of the facts within the shared knowledge of Parliament and citizenry. To refuse to consider such a commentary, when Parliament has legislated on the basis and faith of it, is for the interpreter to fail to put himself in the real position of the promulgator of the instrument before essaying its interpretation. It is refusing to follow what is perhaps the most important clue to meaning. It is perversely neglecting the reality, while chasing the shadows. As Aneurin Bevan said: ‘Why read the crystal when you can read the book?’ Here the book is already open: it is merely a matter of reading on. Certainly, a court of construction cannot be precluded from saying that what the committee thought as to the meaning of its draft was incorrect. But that is one thing: to dismiss, out of hand and for all purposes, an authoritative opinion in the light of which Parliament has legislated is quite another.’
Lord Simon of Glaisdale said: ‘Once it is accepted that the purpose of ascertainment of the antecedent defect in the law is to interpret Parliament’s intention, it must follow that it is Parliament’s understanding of that law as evincing such a defect which is relevant, not what the law is subsequently declared to be.’
Lord Reid said: ‘We often say that we are looking for the intention of Parliament, but that is not quite accurate. We are seeking the meaning of the words which Parliament used. We are seeking not what Parliament meant but the true meaning of what they said.’
The court could look to a White Paper promoting legislation, to identify the mischief which the statutory provisions were enacted to avoid, but not to interpret the remedy provided by Parliament to defeat that mischief. The courts should be careful not to strain the meaning of a statute. A statutory alteration of the common law must, in the absence of clear words to the contrary, be assumed to be such as to alter the common law no further than was necessary to remedy the perceived mischief.
The principles of statutory interpretation rule out the dismantling of judge-made law by stealth: ‘There is a presumption which can be stated in various ways. One is that in the absence of any clear indication to the contrary Parliament can be presumed not to have altered the common law further than was necessary to remedy the ‘mischief.’ Of course it may and quite often does go further. But the principle is that if the enactment is ambiguous, that meaning which relates the scope of the Act to the mischief should be taken rather than a different or wider meaning which the contemporary situation did not call for.’

Judges:

Lord Simon of Glaisdale, Lord Reid, Lord Wilberforce, Lord Diplock

Citations:

[1975] AC 591, [1975] 2 WLR 513, [1975] 1 All ER 810, [1975] UKHL 2

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Heydon’s Case 1584
Mischief rule of Iinterpretation
Lord Coke stated the basis of the mischief rule of interpretation: ‘For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and . .
Cited – Evans v Bartlam HL 1937
The House emphasised the width of the jurisdiction to excuse default in the case of a defendant seeking to have a default judgment set aside and to be let in to defend.
Lord Atkin said: ‘The principle obviously is that, unless and until the . .

Cited by:

Cited – Regina (ZL and VL) v Secretary of State for the Home Department and Lord Chancellor’s Department CA 24-Jan-2003
The applicants’ claims for asylum had been rejected as bound to fail, and under the new Act, they were to be removed from the UK. If they wanted to appeal, they they would have to do so from outside the jurisdiction. The section had been brought . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Balkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .
Cited – Yaxley v Gotts and Another CA 24-Jun-1999
Oral Agreement Creating Proprietory Estoppel
The defendant offered to give to the Plaintiff, a builder, the ground floor of a property in return for converting the house, and then managing it. They were friends, and the oral offer was accepted. The property was then actually bought in the name . .
Cited – Dunnachie v Kingston Upon Hull City Council CA 11-Feb-2004
Compensation for non-economic loss brought about by the manner of an unfair dismissal is, on authority and on principle, recoverable. The award of such compensation by the employment tribunal in the present case was not excessive and was adequately . .
Applied – Attorney-General’s Reference (No 1 of 1988) HL 1989
The defendant received price-sensitive information. He was acquitted of ‘obtaining’ the information, the judge finding that he had done nothing positive to acquire it. On appeal the court held that no such act was required,
Held: Nothing . .
Cited – Evans v Amicus Healthcare Ltd and others CA 25-Jun-2004
The applicant challenged the decision of the court that the sperm donor who had fertilised her eggs to create embryos stored by the respondent IVF clinic, could withdraw his consent to their continued storage or use.
Held: The judge worked . .
Cited – Director of Public Prosecutions v Gomez HL 3-Dec-1992
The defendant worked as a shop assistant. He had persuaded the manager to accept in payment for goods, two cheques which he knew to be stolen. The CA had decided that since the ownership of the goods was transferred on the sale, no appropriation of . .
Cited – Attorney-General (ex relatione Yorkshire Derwent Trust Ltd) v Brotherton HL 5-Dec-1991
The appellants owned land through which flowed the river Derwent. Attempts were to be made to restore the river to navigability. The appellants denied that any public rights existed over the river.
Held: The 1932 Act could only give rise to a . .
Cited – Greene v Associated Newspapers Ltd CA 5-Nov-2004
The claimant appealed against refusal of an order restraining publication by the respondent of an article about her. She said that it was based upon an email falsely attributed to her.
Held: ‘in an action for defamation a court will not impose . .
Cited – Ridgeway Motors (Isleworth) Ltd v Alts Ltd CA 10-Feb-2005
The company appelaed a refusal of the judge to strike out a winding up petition. They said the petition was based upon a judgment which was now time barred. The petitioner replied that such a petition was not an action under the section.
Held: . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Fogg and Ledgard v The Secretary of State for Defence, Short Admn 13-Dec-2005
The applicants sought judicial review of a decision of the respondent not to name the wreck of the merchant ship SS STORAA as a protected site under the 1986 Act. It had been a merchant ship forming part of a convoy, and was sunk by enemy action in . .
Cited – Lowsley and Another v Forbes (Trading As I E Design Services) HL 29-Jul-1998
The plaintiffs, with the leave of the court, had obtained garnishee and charging orders nisi against the debtor 11 and a half years after they had obtained a consent judgment.
Held: An application by the judgment debtor to set aside the orders . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – L, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
Cited – L, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
Cited – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Cited – British Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
Cited – Nambalat v Taher and Another EAT 8-Dec-2011
nambalatEAT2011
EAT National Minimum Wage Act 1998
National Minimum Wage Regulations 1999, Reg. 2(2)
Unauthorised deductions from wages
All three Claimants were foreign domestic workers employed in the . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Lachaux v Independent Print Ltd and Another SC 12-Jun-2019
Need to Show Damage Increased by 2013 Act
The claimant alleged defamation by three publishers. The articles were held to have defamatory meaning, but the papers argued that the defamations did not reach the threshold of seriousness in section 1(1) of the 2013 Act.
Held: The appeal . .
Lists of cited by and citing cases may be incomplete.

[2017] EUECJ C-643/15, C-643/15

Links:

Bailii

Jurisdiction:

European

Citing:

Opinion – Slovak Republic v Council – Opinion ECJ 6-Sep-2017
Area of Freedom, Security and Justice – Actions for annulment – Decision (EU) 2015/1601 – Provisional measures in the area of international protection for the benefit of the Italian Republic and the Hellenic Republic – Emergency situation . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 29 March 2022; Ref: scu.593578

Reference to Parliamentary Papers behind Statute

The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the cost to the employer, or the cost of a school place. Debates in Parliament had discussed this issue, and the parties sought to refer to the debate.
Held: It was not an impeachment of Parliament or an infringement of the Bill of Rights to examine Hansard to resolve issues provided the legislation was ambiguous, obscure or suffered an absurdity, and the material referred to comprised statements by a minister or other promoter of the Bill or supporting material, and the statements referred to were themselves clear. Having so referred to Hansard in this case, the taxable cost was the additional marginal cost of providing the service, the profit the school would normally have made.
Lord Browne-Wilkinson commented on the object of article 9: ‘Article 9 is a provision of the highest constitutional importance and should not be narrowly construed. It ensures the ability of democratically elected Members of Parliament to discuss what they will (freedom of debate) and to say what they will (freedom of speech) . . In my judgment, the plain meaning of article 9, viewed against the historical background in which it was enacted, was to ensure that Members of Parliament were not subjected to any penalty, civil or criminal, for what they said and were able, contrary to the previous assertions of the Stuart monarchy, to discuss what they, as opposed to the monarch, chose to have discussed.’
And: ‘I find it impossible to attach the breadth of meaning to the word ‘question’ which the Attorney-General urges. It must be remembered that article 9 prohibits questioning not only ‘in any court’ but also in any ‘place out of Parliament.’ If the Attorney-General’s submission is correct, any comment in the media or elsewhere on what is said in Parliament would constitute ‘questioning’ since all Members of Parliament must speak and act taking into account what political commentators and other will say.’
Given that I do not have to determine for the purposes of my ruling precisely what is meant by ‘place out of Parliament’, I cannot, especially in the light of the Court of Appeal’s statement in Hamilton, construe Lord Browne-Wilkinson’s words as the Claimants suggest. I note also that they were said when rejecting the Attorney General’s submission on a wide meaning of the word ‘question’ and that there appears to have been no argument in Pepper v Hart as to the meaning of ‘place out of Parliament’.

Judges:

Lord Bridge of Harwich, Lord Emslie, Lord Griffiths, Lord Oliver of Aylmerton and Lord Browne-Wilkinson Lord Mackay of Clashfern L.C., Lord Keith of Kinkel, Lord Griffiths, Lord Ackner

Citations:

[1992] 3 WLR 1032, [1993] AC 593, [1993] 1 All ER 42, [1992] UKHL 3, [1993] IRLR 33, [1993] RVR 127, [1992] STC 898, [1993] ICR 291

Links:

lip, Bailii

Statutes:

Finance Act 1976 23 61 63, Bill of Rights 1688 9

Jurisdiction:

England and Wales

Citing:

Applied – Pickstone v Freemans Plc HL 30-Jun-1988
The claimant sought equal pay with other, male, warehouse operatives who were doing work of equal value but for more money. The Court of Appeal had held that since other men were also employed on the same terms both as to pay and work, her claim . .
Applied – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
Considered – Davis v Johnson HL 2-Jan-1978
The court was asked to interpret the 1976 Act to see whether its protection extended to cohabitees as well as to wives. In doing so it had to look at practice in the Court of Appeal in having to follow precedent.
Held: The operation of the . .
Considered – Hadmor Productions Ltd v Hamilton HL 1982
The Court of Appeal was not in general entitled to reverse the decision of the Administrative Court in the grant of discretionary interlocutory relief: ‘it is I think appropriate to remind your Lordships of the limited function of an appellate court . .
Overruled – Regina v Secretary of State for Trade, Ex parte Anderson Strathclyde Plc QBD 1983
A proposed takeover had been referred to the Monopolies and Mergers Commission under the 1973 Act. A majority of the Commission recommended against the takeover. The Deputy (acting instead of the Secretary who had an interest) overruled the . .
Cited – Ash v Abdy 1678
Lord Nottingham took judicial notice of his own experience when introducing a Bill in the House of Lords. . .
Cited – Assam Railways and Trading Co Ltd v Commissioners of Inland Revenue HL 1935
Parties questioned the admissibility before the House of recommendations of a Royal Commission on Income Tax which had preceded an Act and which counsel for the appellants sought to cite as part of the context of intention of Parliament in relation . .
Cited – Beswick v Beswick HL 29-Jun-1967
The deceased had assigned his coal merchant business to the respondent against a promise to pay andpound;5.00 a week to his widow whilst she lived. The respondent appealed an order requiring him to make the payments, saying that as a consolidating . .
Approved – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Appeal from – Pepper (Inspector of Taxes) v Hart CA 1991
. .

Cited by:

Constrained – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – AHE Leeds Teaching Hospitals NHS Trust v A and Others (By Their Litigation Friend, the Official Solicitor), The Human Fertilisation and Embryology Authority B, B QBD 26-Feb-2003
An IVF treatment centre used sperm from one couple to fertilise eggs from another. This was discovered, and the unwilling donors sought a paternity declaration.
Held: Section 28 did not confer paternity. The mistake vitiated whatever consents . .
Cited – Regina v Warwickshire County Council, ex parte Johnson HL 10-Feb-1993
The manager of a shop was not necessarily liable for a misleading price indication in the shop. There had been a national price reduction advertisement. A customer came into the shop to try to buy a television under the scheme. The store manager . .
Cited – Wilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Cited – Regina on the Application of G v Westminster City Council QBD 30-Jan-2004
The child sought review of the respondent’s decision not to provide education other than at one school. He had been suspended, but his father refused to allow him to return complaining of the effects of bullying.
Held: The condition of being . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Jennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
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 . .
Unwise – Robinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .
Cited – Jackson and Others, Regina (on the Application of) v Her Majesty’s Attorney General Admn 28-Jan-2005
The 2004 Act had been passed without the approval of the House of Lords and under the provisions of the 1911 Act as amended by the 1949 Act. The 1949 Act had used the provisions of the 1911 Act to amend the 1911 Act. The claimant said this meant . .
Cited – In re P (a minor by his mother and litigation friend); P v National Association of Schoolmasters/Union of Women Teachers HL 27-Feb-2003
The pupil had been excluded from school but then ordered to be re-instated. The teachers, through their union, refused to teach him claiming that he was disruptive. The claimant appealed a refusal of an injunction. The injunction had been refused on . .
Cited – Countryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
Cited – Ropaigealach v Barclays Bank plc CA 6-Jan-1999
The applicant’s property was charged to the defendant. At the time it was not occupied. The mortgage fell into arrears, and after serving notice at the property, the bank took posssession and sold the property at auction. The claimants said the bank . .
Cited – The Secretary of State for Trade and Industry v Jonkler and Another ChD 10-Feb-2006
The applicant had given an undertaking to the court to secure discontinuance of company director disqualification procedings. He now sought a variation of the undertaking.
Held: The claimant had given an undertaking, but in the light of new . .
Applied – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
Cited – L, Regina (on the Application of) v Commissioner of Police for the Metropolis and Another CA 1-Mar-2007
The court considered the proper content of an enhanced criminal record certificate. The claimant said that it should contain only matter relating to actual or potential criminal activity.
Held: As to the meaning of section 115: ‘if Parliament . .
Applied – National Grid Gas Plc, Regina (on the Application of) v The Environment Agency HL 27-Jun-2007
The Agency sought to impose liability on the appellant to remediate land which had been polluted by the appellant’s predecessor, the East Midlands Gas Board, claiming it to be a responsible as successor.
Held: The appeal succeeded: ‘the . .
Cited – Haw and Another v City of Westminster Magistrates’ Court Admn 12-Dec-2007
The defendants appealed convictions for contempt of court, on the basis of having wilfully interrupted the court. The respondent said that no appeal lay.
Held: The statute was ambiguous, and ‘there can be no good reason why a person convicted . .
Mentioned – Office of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
Cited – King v The Serious Fraud Office CACD 18-Mar-2008
Restraint and Disclosure orders had been made on without notice applications at the request of South Africa. The applicant appealed a refusal of their discharge.
Held: Such orders did not apply to the applicant’s assets in Scotland. The orders . .
Cited – G, Regina (on the Application of) v Nottinghamshire Healthcare NHS Trust Admn 20-May-2008
The applicants were detained at Rampton. The form of detention denied the access to space in which they would be able to smoke cigarettes to comply with the law.
Held: The claim failed. The legislative objectives were sufficiently serious to . .
Cited – Adorian v The Commissioner of Police of the Metropolis CA 23-Jan-2009
The claimant received injuries when arrested. He was later convicted of resisting arrest. The defendant relied on section 329 of the 2003 Act. The claimant said that the force used against him was grossly disproportionate. The commissioner appealed . .
Cited – BUPA Care Homes v Cann; Spillett v Tesco Stores EAT 31-Jan-2006
EAT Practice and Procedure – 2002 Act and Pre-Action Requirements; and Amendment
Whether section 32(4) EA 2002 – original time limit – restricts time for bringing a DDA claim to the primary 3 months period, . .
Cited – JTB, Regina v HL 29-Apr-2009
The defendant appealed against his convictions for sexual assaults. He was aged twelve at the time of the offences, but had been prevented from arguing that he had not known that what he was doing was wrong. The House was asked whether the effect of . .
Cited – Regina v Deegan CACD 4-Feb-1998
The defendant appealed his conviction for possession of a bladed article in a public place. It was a pocket knife which locked open, but its blade could be retracted on using the mechanism, and did not exceed three inches.
Held: The Court . .
Cited – Clark v TDG Limited (Trading As Novacold) CA 25-Mar-1999
The applicant had soft tissue injuries around the spine as a consequence of a back injury at work. He was absent from work for a long time as a result of his injuries, and he was eventually dismissed when his medical advisers could provide no clear . .
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: . .
Cited – Catholic Care (Diocese of Leeds) v Charity Commission for England and Wales and Another ChD 17-Mar-2010
The charity appealed against refusal of permission to amend its charitable objects as set out in the memorandum of association. The charity was successful as an adoption agency particularly in placing children who would otherwise have had difficulty . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
Cited – Chaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
Cited – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Cited – Farstad Supply As v Enviroco Ltd SC 6-Apr-2011
The court was asked by the parties to a charterparty whether one of them is an ‘Affiliate’ of the charterer for the purposes of provisions in a charterparty by which both the owner and the charterer agreed to indemnify and hold each other harmless . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – Scottish Widows Plc v Revenue and Customs SC 6-Jul-2011
The taxpayer insurance company had transferred sums from accounts designated as Capital Reserves. The Revenue said that these were properly part of the profit and loss accounts for the respective tax years, and chargeable receipts.
Held: The . .
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Cited – Gow v Grant SC 24-May-2012
The parties had lived together as an unmarried couple, but separated. Mrs Gow applied under the 2006 Act for provision. Mr Grant’s appeal succeeded at the Inner House, and Mrs Gow now herself appealed.
Held: The appeal succeeded. The Act did . .
Cited – Cusack v London Borough of Harrow SC 19-Jun-2013
The landowner practised from property in Harrow. The former garden had now for many years been used as a forecourt open to the highway, for parking cars of staff and clients. Cars crossed the footpath to gain access, and backing out into the road . .
Considered – Thet v Director of Public Prosecutionsz Admn 19-Oct-2006
The defendant appealed by case stated against his conviction by the magistrates for entering the UK without a passport. He had relied on a false passport povided to him by an agent, and had returned it to the facilitator. He was therefore unable to . .
Considered – Tabnak, Regina v CACD 19-Feb-2007
The defendant appealed against his conviction under section 35 of the 2004 Act, having pleaded guilty after an adverse ruling as to the law. After being refused asylum and several failed appeals he had refused to give assistance in providing the . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Whitston (Asbestos Victims Support Groups Forum UK), Regina (on The Application of) v Secretary of State for Justice Admn 2-Oct-2014
The claimants challenged the selection by the defendant of victims of meselothemia as a group were excluded from entitlement to the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants.
Cited – Bucnys v Ministry of Justice SC 20-Nov-2013
The Court considered requests made by European Arrest Warrants for the surrender under Part 1 of the Extradition Act 2003 of three persons wanted to serve sentences imposed upon their conviction in other member states of the European Union. The . .
Cited – Chesterton Global Ltd (t/a Chestertons) and Another v Nurmohamed (Victimisation Discrimination: Whistleblowing) EAT 8-Apr-2015
chesteron_nurmohamedEAT201504
EAT VICTIMISATION DISCRIMINATION
Whistleblowing
Protected disclosure
This appeal concerns the meaning of the words ‘in the public interest’ inserted into section 43B(1) of the Employment Rights . .
Cited – Makudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Cited – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .
Cited – Iceland Foods Ltd v Berry (Valuation Officer) SC 7-Mar-2018
Air System plant excluded from Rating value
The court was asked whether the services provided by a specialised air handling system, used in connection with refrigerated merchandise in the appellant’s retail store, are ‘manufacturing operations or trade processes’ for rating purposes.
Cited – Al-Skeini and Others v The United Kingdom ECHR 7-Jul-2011
(Grand Chamber) The exercise of jurisdiction, which is a threshold condition, is a necessary condition for a contracting state to be able to be held responsible for acts or omissions imputable to it which give rise to an allegation of the . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .
Cited – Hutchings, Re Application for Judicial Review SC 6-Jun-2019
The appellant, a former army officer challenged proceedings against him as to the death of a civilian shot in Northern Ireland in 1974. His trial had been certified for trial by judge alone, and without a jury under section 1 of the 2007 Act.
Lists of cited by and citing cases may be incomplete.

Constitutional, Income Tax

Leading Case

Updated: 23 March 2022; Ref: scu.175101

Entick v Carrington: KBD 1765

The Property of Every Man is Sacred

The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what would otherwise be an unlawful search. Lord Camden CJ said: ‘Our law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does, he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law . . we can safely say there is no law in this country to justify the defendants in what they have done; if there was, it would destroy all the comforts of society; for papers are often the dearest property a man can have.’ and ‘with respect to the argument of State necessity, or a distinction that has been aimed at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinctions.’
‘If it is law, it will be found in our books. If it is not to be found there, it is not law.’
Pratt LJ said: ‘The great end for which men entered into society was to secure their properties. That right is preserved sacred and incommunicable in all instances where it has not been abridged by some public law for the good of the whole.’

Judges:

Lord Camden CJ, Pratt LJ

Citations:

(1765) 2 Wils 275, (1765) 19 St Tr 1030, [1765] EWHC KB J98, [1799] EngR 236, (1799) 2 Wils KB 275, (1799) 95 ER 807, 1558-1774 All ER Rep 45

Links:

Bailii, Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Attorney General v Danhai Williams and others PC 12-May-1997
(Jamaica) Customs investigating officers on attended the appellant’s premises in the course of an investigation of fraudulent importation. The officers were met by a hostile crowd, and the claimant did not attend for interview as invited. A search . .
Cited – Bici and Bici v Ministry of Defence QBD 7-Apr-2004
Claimants sought damages for personal injuries incurred when, in Pristina, Kosovo and during a riot, British soldiers on a UN peacekeeping expedition fired on a car.
Held: The incidents occurred in the course of peace-keeping duties. It was . .
Cited – Davidson v Scottish Ministers HL 15-Dec-2005
The complainant a prisoner sought an order that he should not be kept in conditions found to be inhumane. He had been detained in Barlinnie priosn. The Crown replied that a mandatory order was not available against the Scottish Ministers.
Cited – Christie v Leachinsky HL 25-Mar-1947
Arrested Person must be told basis of the Arrest
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the . .
Cited – SK, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Jan-2008
The claimant was a Zimbabwean National who was to be removed from the country. He was unlawfully held in detention pending removal. He sought damages for false imprisonment. He had been held over a long period pending decisions in the courts on the . .
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 . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – In re Guardian News and Media Ltd and Others; HM Treasury v Ahmed and Others SC 27-Jan-2010
Proceedings had been brought to challenge the validity of Orders in Council which had frozen the assets of the claimants in those proceedings. Ancillary orders were made and confirmed requiring them not to be identified. As the cases came to the . .
Cited – Anton Piller v Manufacturing Processes Ltd CA 8-Dec-1975
Civil Search Orders possible
The plaintiff manufactured and supplied through the defendants, its English agents, computer components. It had reason to suspect that the defendant was disclosing its trade secrets to competitors. The court considered the effect of a civil search . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – Davidson v Scottish Ministers HL 15-Jul-2004
The claimant had sought damages for the conditions in which he had been held in prison in Scotland. He later discovered that one of the judges had acted as Lord Advocate representing as to the ability of the new Scottish Parliamentary system to . .
Cited – Landlords Association for Northern Ireland, Re an Application for Judicial Review QBNI 14-Mar-2005
. .
Cited – Sovereign Dimensional Survey Ltd v Cooper SCS 28-Nov-2008
. .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Chic Fashions (West Wales) Ltd v Jones CA 12-Dec-1967
Lord Denning MR said that a constable equipped with a search warrant: ‘may seize not only the goods which he reasonably to be covered by the warrant, but also any other goods which he believes on reasonable grounds to have been stolen and to be . .
Cited – Regina v Commissioner of Police for The Metropolis, ex parte Rottman HL 16-May-2002
The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission . .
Cited – Clarke v Chief Constable of North Wales Police CA 7-Oct-1997
. .
Cited – Regina v Secretary of State for Health, ex parte C CA 21-Feb-2000
An extra-statutory database maintained by the Secretary of State of the names of people considered to be unsafe to work with children was lawful. Two competing and genuine interests were to be balanced. The right to pursue employment without being . .
Cited – Stockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
Cited – Regina v Secretary of State for Trade and Industry and Northern Electric Plc ex parte Wolf Admn 21-Aug-1997
The landowner wanted to terminate a wayleave agreement. . .
Cited – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
Cited – Regina v Central Criminal Court Ex Parte Bright; Regina v Same, Ex Parte Rusbridger QBD 21-Jul-2000
An order was made for a journalist to disclose to the police material disclosed to him in connection with a prosecution under the Official Secrets Act. The journalist appealed the order, on the basis that it was in effect an order that he . .
Cited – Regina v Worcester County Council Secretary of State for Department of Health ex parte S W Admn 2-Oct-2000
The court considered the lawfulness of a non-statutory list of people who might not be employed to work with children, the Consultancy Service Index. . .
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: . .
Cited – Regina (Hoverspeed Limited and others) v Commissioners of Customs and Excise CA 10-Dec-2002
Passengers leaving a ferry had been stopped by Customs. The vehicle was searched and a quantity of alcohol and tobacco found, which they believed not to be for personal consumption. The car and imports had been forfeited. The court had said that the . .
Cited – O Ltd v Z ChD 23-Feb-2005
The court was asked whether a search under a court order of a former employee’s computer for materials alleged to have been taken, which discovered material possession of which itself was a crime, infringed the defendant’s rights against self . .
Cited – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
Cited – Shrewsbury and Atcham Borough Council v Secretary of State for Communities and Local Government Admn 10-Oct-2007
. .
Cited – Bhatti and Others v Croydon Magistrates Court and Others Admn 6-Nov-2009
. .
Cited – Bhatti and Others v Croydon Magistrates’ Court and Others Admn 3-Feb-2010
The claimant challenged the valiity of search warrants used at his home. He said they were deficient in not including the information as required by the Act. The police said that they were in accordance with the Home Office guidance.
Held: . .
Cited – Coward v Harraden QBD 2-Dec-2011
Parties had fought each other in wide ranging litigation. The claimant found covert surveillance devices in his home, and discovered evidence that the defendant may have information as to who had placed them. Earlier orders had been made for the . .
Cited – Mills and Another, Regina (on The Application of) v Sussex Police and Another Admn 25-Jul-2014
The claimants faced criminal charges involving allegations of fraud and corruption. They now challenged by judicial review a search and seizure warrant saying that it was unlawful. A restraint order had been made against them and they had complied . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
Cited – Privacy International, Regina (on The Application of) v Investigatory Powers Tribunal and Others SC 15-May-2019
The Court was asked whether the actions of the Investigatory Powers Tribunal were amenable to judicial review: ‘what if any material difference to the court’s approach is made by any differences in context or wording, and more particularly the . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Robinson v Chief Constable of West Yorkshire Police SC 8-Feb-2018
Limits to Police Exemption from Liability
The claimant, an elderly lady was bowled over and injured when police were chasing a suspect through the streets. As they arrested him they fell over on top of her. She appealed against refusal of her claim in negligence.
Held: Her appeal . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Constitutional

Leading Case

Updated: 11 February 2022; Ref: scu.184696

AXA General Insurance Ltd and Others v Lord Advocate and Others: SC 12 Oct 2011

Standing to Claim under A1P1 ECHR

The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable harm for the purposes of an action of damages for personal injury.
Held: The insurers’ appeals failed. The Court upheld the power of the Scottish Parliament to reverse the decision in Rothwell.
Legislation has to be construed bearing in mind the societal values which Parliament can be taken to have intended it to embody.
To establish a standing to claim under Article 1 of the Convention, the claimant had first to show that it was within the Convention, a victim. This was to be ascertained by three questions: (1) whether the insurer claimants were ‘victims’ under Article 34, (2) if so, was the interference with their ‘possessions’ in pursuit of a legitimate aim and (3) if again so, whether the means were reasonably proportionate to the aim sought to be realised. The insurers were indeed victims, and the sums for which they would be liable were indeed possessions. The Act was in pursuit of a legitimate aim, and the real issue was as to proportionality. Given the margin of appreciation afforded it could not be said to be unreasonable.
While the Scottish Parliament was subject to the jurisdiction of the Courts, the common law grounds of review did not apply, but the Scottish Parliament powers of legislation were subject to the statutory limits in section 29(2)(d) of the 1998 Act, which required Scottish legislation to be compatible with Convention rights.
Lord Hope said: ‘The dominant characteristic of the Scottish Parliament is its firm rooting in the traditions of a universal democracy. It draws its strength from the electorate. While the judges, who are not elected, are best placed to protect the rights of the individual, including those who are ignored or despised by the majority, the elected members of a legislature of this kind are best placed to judge what is in the country’s best interests as a whole. A sovereign Parliament is, according to the traditional view, immune from judicial scrutiny because it is protected by the principle of sovereignty. But it shares with the devolved legislatures, which are not sovereign, the advantages that flow from the depth and width of the experience of its elected members and the mandate that has been given to them by the electorate. This suggests that the judges should intervene, if at all, only in the most exceptional circumstances.’
and ‘The Scottish Parliament takes its place under our constitutional arrangements as a self-standing democratically elected legislature. Its democratic mandate to make laws for the people of Scotland is beyond question. Acts that the Scottish Parliament enacts which are within its legislative competence enjoy, in that respect, the highest legal authority. The United Kingdom Parliament has vested in the Scottish Parliament the authority to make laws that are within its devolved competence.’
Lord Reed said: ‘the Scottish Parliament is not a sovereign parliament in the sense that Westminster can be described as sovereign: its powers were conferred by an Act of Parliament, and those powers, being defined, are limited. It is the function of the courts to interpret and apply those limits, and the Scottish Parliament is therefore subject to the jurisdiction of the courts.’ and
‘Judicial review under the common law is based upon an understanding of the respective constitutional responsibilities of public authorities and the courts. The constitutional function of the courts in the field of public law is to ensure, so far as they can, that public authorities respect the rule of law. The courts therefore have the responsibility of ensuring that the public authority in question does not misuse its powers or exceed their limits. The extent of the courts’ responsibility in relation to a particular exercise of power by a public authority necessarily depends upon the particular circumstances, including the nature of the public authority in question, the type of power being exercised, the process by which it is exercised, and the extent to which the powers of the authority have limits or purposes which the courts can identify and adjudicate upon.’

Judges:

Lord Hope, Deputy President, Lord Brown, Lord Mance, Lord Kerr, Lord Clarke, Lord Dyson, Lord Reed

Citations:

UKSC 2011/0108, [2011] UKSC 46, 2011 SLT 1061, [2012] 1 AC 868, (2011) 122 BMLR 149, [2011] 3 WLR 871, [2012] HRLR 3, [2011] UKHRR 1221

Links:

SC, SC Summary, Bailii, Bailii Summary

Statutes:

Damages (Asbestos-related Conditions) (Scotland) Act 2009, European Convention on Human Rights 1, Scotland Act 1998 29(2)(d), Employers’ Liability (Compulsory Insurance) Act 1969, Third Parties (Rights against Insurers) Act 1930, Third Parties (Rights against Insurers) Act 2010

Jurisdiction:

Scotland

Citing:

At Outer House – AXA General Insurance Ltd and Others v Lord Advocate and Others SCS 8-Jan-2010
The claimant sought to challenge the validity of the 2009 Act by judicial review. The Act would make their insured and themselves liable to very substantial unanticipated claims for damages for pleural plaques which would not previousl or otherwise . .
At Inner House – AXA General Insurance Ltd and Others v The Scottish Ministers and Others SCS 12-Apr-2011
(First Division) The insurance companies sought judicial review of the 2009 Act which lay them open, as employers liability insurers, to substantial historic claims for asymptotic neural plaque injuries.
Held: The companies’ appeal failed. The . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Wright v Stoddard International Plc and Another (No 2) SCS 23-Oct-2007
(Supplementary Opinion) Lord Uist applied the decision in Rothwell, although on the facts he would not have awarded damages anyway. . .
Cited – Church v Ministry of Defence QBD 23-Feb-1984
The 62 year old claimant sought damages after working in in the defendant’s dockyard and being exposed to asbestos. Pleural plaques were apparent on X-ray and the pleura would constrict the lung and induce breathlessness; and the asbestos must have . .
Cited – Patterson v Ministry of Defence QBD 29-Jul-1986
The plaintiff had been exposed to asbestos when working for the defendant. X-rays revealed development of pleural plaques, but these would remain asymptomatic.
Held: Material damage sufficient to set time running was the same as damage . .
Cited – Nicol v Scottish Power plc 1998
. .
Cited – Gibson v McAndrew Wormald and Co Ltd 1998
Pleural plaques constituted an identifiable injury for which damages were recoverable. . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – The National and Provincial Building Society, The Leeds Permanent Building Society And The Yorkshire Building Society v The United Kingdom ECHR 23-Oct-1997
There was no breach of human rights by the retrospective removal of a right to reclaim overpaid tax. Such a decision was within the general power of a government to impose and collect tax. Not every difference in treatment will amount to a violation . .
Cited – Draon v France ECHR 6-Oct-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of P1-1; No separate issue under Art.14 in conjunction with P1-1; No separate issue under Art. 6-1; No violation of Art. 13; No violation of Art. 8; Costs . .
Cited – Back v Finland ECHR 20-Jul-2004
The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a . .
Cited – Kopecky v Slovakia ECHR 28-Sep-2004
(Grand Chamber) The court said of the practice of the Convention institutions under A1 P1: ‘An applicant can allege a violation of article 1 of Protocol 1 only in so far as the impugned decisions related to his ‘possessions’ within the meaning of . .
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 – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Willis v The United Kingdom ECHR 11-Jun-2002
Discrimination in the payment of ‘widows payment’ and widowed mother’s allowance infringed the rights conferred by article 14 read with article 1 of Protocol 1 but no finding was made about the widow’s pension. The risk of the applicant being . .
Cited – Young, James and Webster v The United Kingdom ECHR 13-Aug-1981
Employees claimed religious objections to being obliged to members of a Trades Union.
Held: It is the obligation of states which have ratified the Convention to secure to everyone within their jurisdiction the rights and freedoms which it . .
Cited – Pressos Compania Naviera S A And Others v Belgium ECHR 20-Nov-1995
When determining whether a claimant has possessions or property within the meaning of Article I the court may have regard to national law and will generally do so unless the national law is incompatible with the object and purpose of Article 1. Any . .
Cited – Maurice v France ECHR 2005
. .
Cited – Edinburgh District Council v Secretary of State for Scotland SCS 1985
Inner House . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – Broniowski v Poland ECHR 22-Jun-2004
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (non-exhaustion of domestic remedies) ; Violation of P1-1 ; Just satisfaction reserved ; Costs and expenses partial award – Convention . .
Cited – Regina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
Cited – Secretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali CA 17-May-2001
A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. . .
Cited – Regina v Director of Public Prosecutions, ex parte Kebilene and others HL 28-Oct-1999
(Orse Kebeline) The DPP’s appeal succeeded. A decision by the DPP to authorise a prosecution could not be judicially reviewed unless dishonesty, bad faith, or some other exceptional circumstance could be shown. A suggestion that the offence for . .
Cited – Regina v Secretary of State ex parte Hammersmith and Fulham London Borough Council HL 4-Oct-1990
16 local authorities joined together to challenge the bringing in of the community charge, and of rules giving central government a greater say over management of local finance by local authorities.
Held: Acts which are essentially political . .
Cited – West v Secretary of State for Scotland SCS 23-Apr-1992
The petitioner complained that on being moved from his employment at one prison to another, he had been told that his moving expenses would be paid, but that they were not. The respondent said that the terms of his employment were that he was to be . .
Cited – West v Secretary of State for Scotland SCS 1992
The court asked what was to be considered to be truly an application to the supervisory jurisdiction of the court.
Held: Lord President (Hope): ‘The public or private nature of the inferior body or tribunal is not decisive, nor is it necessary . .
Cited – Forbes v Underwood 1886
The supervisory jurisdiction of the Court of Session was used to compel an arbiter to proceed with an arbitration agreed under a private contract. . .
Cited – D and J Nicol v Dundee Harbour Trustees HL 10-Dec-1914
Whether a corporation created by a statute has a particular power depends exclusively on whether that power has been expressly given to it by the statute regulating it, or can be implied from the language used.
Lord Dunedin declared: ‘By the . .
Cited – McDonald v Burns SCS 29-Mar-1940
. .
Cited – St Johnstone Football Club v Scottish Football Association Ltd 1965
The Supervisory jurisdiction of the Court of Session was available to check whether the proceedings leading to a disciplinary decision of the Scottish Football Association, a private association, had been conducted in accordance with natural . .
Cited – X v United Kingdom ECHR 5-Nov-1981
(Commission) The application was made a patient, restricted under the 1959 Act. A mental health review tribunal which concluded that the continued detention of a restricted patient was no longer justified had power to recommend but not to order the . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Bindel 2001
A women’s group objected to the visit to the United Kingdom of Mike Tyson, a convicted rapist, so that he could earn money here by appearing in the boxing ring.
Held: Justice for Women did not have arguable grounds for interfering with the . .
Cited – Rape Crisis Centre v Secretary of State for the Home Department 2000
The petitioner sought judicial review of a decision to allow the boxer Mike Tyson to visit the UK.
Held: The Immigration Rules conferred no express or implied rights on third parties such as the petitioners. A review was refused.
Lord . .
Cited – Barker v Corus (UK) Plc HL 3-May-2006
The claimants sought damages after contracting meselothemia working for the defendants. The defendants argued that the claimants had possibly contracted the disease at any one or more different places. The Fairchild case set up an exception to the . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Zielinski v France ECHR 28-Oct-1999
Hudoc The applicants challenged a retrospective change in employment law under article 6(1).
Held: The court stated that while in principle the legislature is not precluded in civil matters from adopting . .
Cited – Campbell and Cosans v The United Kingdom ECHR 25-Feb-1982
To exclude a child from school for as long as his parents refused to let him be beaten ‘cannot be described as reasonable and in any event falls outside the State’s power of regulation in article 2’. The Convention protects only religions and . .
Cited – Mellacher and Others v Austria ECHR 19-Dec-1989
The case concerned restrictions on the rent that a property owner could charge. The restrictions were applied to existing leases. It was said that the restrictions brought into play the second paragraph of Article 1 of the First Protocol to the . .
Cited – Lithgow And Others v The United Kingdom ECHR 8-Jul-1986
The applicants complained that on the nationalisation of their interests under the 1977 Act, the compensation awarded had been inadequate and did not reflect their true value.
Held: Convention jurisprudence permits a proportionate restriction . .
Cited – Sienkiewicz v Greif (UK) Ltd; Knowsley Metropolitan Borough Council v Willmore SC 9-Mar-2011
The Court considered appeals where defendants challenged the factual basis of findings that they had contributed to the causes of the claimant’s Mesothelioma, and in particular to what extent a court can satisfactorily base conclusions of fact on . .
Cited – Vijayanathan and Pusparajah v France ECHR 27-Aug-1992
Where a person is not at risk of a violation of a Convention right unless and until a particular decision is taken, for example as to deportation, the person cannot claim to be a victim unless and until such a decision is in fact made.
. .
Cited – Open Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
Cited – Gorraiz Lizarraga et Autres v Espagne ECHR 27-Apr-2004
(French Text) An excessively formalistic interpretation of the concept of a ‘victim’ would make protection of the rights guaranteed by the Convention ineffectual and illusory. . .
Cited – Burden and Burden v The United Kingdom ECHR 29-Apr-2008
(Grand Chamber) The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual . .
Cited – Wasa Liv Omsesidigt v Sweden ECHR 14-Dec-1988
Commission . .
Cited – Agrotexim and Others v Greece ECHR 24-Oct-1995
Hudoc Not necessary to examine preliminary objection (ratione temporis); Preliminary objection allowed (victim); Lack of jurisdiction (complaint inadmissible, new complaint)
The applicant companies held . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – Iatridis v Greece ECHR 25-Mar-1999
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (non-exhaustion); Preliminary objection rejected (six month period); Violation of P1-1; Violation of Art. 13; Not necessary to examine . .
Cited – Whaley v Lord Watson SCS 16-Feb-2000
The Scottish Parliament and its members have a limited statutory immunity from suit. No interdict or other order could be made against a member of the Parliament if the effect would be to grant an order against the Parliament not otherwise . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Rossi v Magistrates of Edinburgh HL 1904
Conditions in an ice-cream vendors’ licence which restricted their right to open their shops when they liked and sell what they pleased were held to be ultra vires of the licensing authority. The court applied the rule that while the legislature may . .
Cited – Brown v Hamilton District Council HL 25-Nov-1982
The pursuer sought a declaration that he was a homeless person and therefore entitled to assistance.
Held: Lord Fraser of Tullybelton said that it was for consideration whether there might not be advantages in developing special procedure in . .
Cited – Regina v Secretary of State for the Home Department ex parte Anufrijeva HL 26-Jun-2003
The appellant challenged the withdrawal of her benefits payments. She had applied for asylum, and been granted reduced rate income support. A decision was made refusing her claim, but that decision was, by policy, not communicated to her for several . .
Cited – Stevenson v Midlothian District Council HL 1983
The pursuer was an undischarged bankrupt. The Lord Ordinary ordered him to find caution, although he was in receipt of legal aid. He said that he had had regard to the nature of the action and the pleadings, as well as to the fact that he was an . .
Cited – Wilson v Independent Broadcasting Authority OHCS 1979
In the lead up to the Scottish referendum on Devolution, the Authority required the broadcasters to carry party political broadcasts for each of the four main parties. Three parties favoured voting yes in the referendum, and the authority was . .
Cited – Scottish Old People’s Welfare Council, Petitioners SCS 1987
The organisation (‘Age Concern Scotland’) challenged guidance issued by the chief adjudication officer regarding social security payments for severe weather conditions. Lord Clyde concluded that any member of the public, or an association such as . .
Cited – Sutherland District Council v Secretary of State for Scotland SCS 23-Dec-1987
Lord Clyde discussed the rule restricting the class of people who might bring judicial review: ‘Paragraph (14) envisages that interested parties may be permitted to enter the process more freely than in the case of an ordinary action and so enable . .
Cited – Casey v Edinburgh Airport Ltd SCS 23-Feb-1989
There was a challenge to decisions taken by the airport authority, under a bye-law, to refuse permits to the applicant taxi operators. During the hearing, the applicants sought to challenge the validity of the bye-law itself.
Held: Lord . .
Cited – EBA v Advocate General for Scotland SC 21-Jun-2011
The appellant had sought to challenge refusal of disability living allowance. Ultimately her request a judicial review of the Upper Tribunal’s decion was rejected on the basis that the UT, being a court of superior record, was not susceptible to . .
Cited – Air 2000 v Secretary of State for Transport (No 2) OHCS 1990
Advice from the Civil Aviation Authority which by statute the Secretary of State was required to consider had been seen not by him but by an interdepartmental working party which advised him.
Held: Citing Carltona for the uncontroversial . .

Cited by:

Cited – ANS and Another v ML SC 11-Jul-2012
The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Walton v The Scottish Ministers SC 17-Oct-2012
The appellant, former chair of a road activist group, challenged certain roads orders saying that the respondent had not carried out the required environmental assessment. His claim was that the road had been adopted without the consultation . .
Cited – Local Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
Cited – Chester, Regina (on The Application of) v Secretary of State for Justice SC 16-Oct-2013
The two applicants were serving life sentences for murder. Each sought damages for the unlawful withdrawal of their rights to vote in elections, and the failure of the British parliament to take steps to comply with the judgment.
Held: The . .
Cited – Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Evans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Cited – Mott, Regina (on The Application of) v The Environment Agency and Another Admn 13-Feb-2015
The claimant challenged new conditions imposed on licences to operate his salmon fishery in the Severn Estuary, which operated to defeat his tenancy of the fishery.
Held: The request for review succeeded. The decisions to impose the catch . .
Cited – Mott, Regina (on The Application of) v Environment Agency and Another CA 17-Jun-2016
The applicant challenged restrictions on salmon fishing imposed by the respondent. At first instance they were held to be irrational, and the Agency appealed.
Held: The Regulations were not irrational and that element of the appeal succeeded, . .
Cited – Mott, Regina (on The Application of) v Environment Agency SC 14-Feb-2018
The Court considered the legality under the European Convention on Human Rights of licensing conditions imposed by the Environment Agency restricting certain forms of salmon-fishing in the Severn Estuary. The claimant operated a licensed putcher . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Human Rights, Constitutional, Judicial Review

Leading Case

Updated: 07 February 2022; Ref: scu.445395

Recovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales): SC 9 Feb 2015

The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence of the Welsh Assembly, in that it did not relate to any of the subjects listed in paragraph 9 of Part 1 of Schedule 7 to the 2006 Act. Though the Bill was not retrospective in the fullest sense, it would significantly restructure both the consequences of actual or possible negligence or breach of statutory duty committed long ago by compensators, and the terms of and liabilities attaching under insurance policies also underwritten years ago to cover any such negligence or breach of duty. The key question was whether GOWA provides legislative competence for the imposition of liabilities on compensators and insurers.
‘The provision of health services and the organisation and funding of the Welsh Health Service clearly cannot permit the Welsh Assembly to raise monies generally, by relying on the fact that any monies raised from any source increase the funds available for all its spending, including spending on the Health Service. The question is whether the position is different if the monies raised can be said to be specifically intended or hypothecated to provide funds for use in the Health Service. But, if that were sufficient, it would be difficult to see any real limit to the persons on whom or basis on which such charges might be imposed, provided only that the charges were levied on that express basis. The reality is also that, unless the charges are for research, treatment or other services which would not otherwise be undertaken or provided by the National Health Service, even a hypothecated charge is in substance no different from a general charge boosting the Welsh Government’s resources.’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Hodge, Lord Thomas

Citations:

[2015] UKSC 3, [2015] 2 WLR 481, (2015) 143 BMLR 1, [2015] 2 All ER 899, [2015] WLR(D) 67, [2015] HRLR 9, [2015] 1 AC 1016, UKSC 2014/0043, [2015] Lloyd’s Rep IR 474

Links:

Bailii, WLRD, Bailii Summary, SC, SC Summary

Statutes:

National Health Service (Wales) Act 2006, Government of Wales Act 2006 108(4)

Jurisdiction:

Wales

Citing:

Cited – Martin v Her Majesty’s Advocate SC 3-Mar-2010
The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish . .
Cited – Employers’ Liability Insurance ‘Trigger’ Litigation: BAI (Run Off) Ltd v Durham and Others SC 28-Mar-2012
The court considered the liability of insurers of companies now wound up for mesothelioma injuries suffered by former employees of those companies, and in particular whether the 1930 Act could be used to impose liability. The insurers now appealed . .
Cited – Imperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
Cited – Agricultural Sector (Wales) Bill (Attorney General for England and Wales, Reference) SC 9-Jul-2014
‘Her Majesty’s Attorney General for England and Wales has referred to this Court under section 112(1) of the Government of Wales Act 2006 the question of whether, on the proper construction of section 108 and Schedule 7 to the GWA 2006, the . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
Freedom of Expression is Fundamental to Society
The appellant had published a ‘Little Red Schoolbook’. He was convicted under the 1959 and 1964 Acts on the basis that the book was obscene, it tending to deprave and corrupt its target audience, children. The book claimed that it was intended to . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Johnston v NEI International Combustion Ltd; Rothwell v Chemical and Insulating Co Ltd; similar HL 17-Oct-2007
The claimant sought damages for the development of neural plaques, having been exposed to asbestos while working for the defendant. The presence of such plaques were symptomless, and would not themselves cause other asbestos related disease, but . .
Cited – Burden and Burden v The United Kingdom ECHR 29-Apr-2008
(Grand Chamber) The claimants were sisters who had lived together all their lives. They complained of discrimination in their treatment under the Inheritance Tax system as opposed to the treatment of a same sex couple living in a sexual . .
Cited – Huitson, Regina (on The Application of) v Revenue and Customs CA 25-Jul-2011
The claimant challenged the lawfulness of HMRC’s enforcement of retrospective amendments to legislation in violation of his human rights. The claimant says that, before the legislation was amended with retrospective effect, he was entitled to relief . .
Cited – AXA General Insurance Ltd and Others v Lord Advocate and Others SC 12-Oct-2011
Standing to Claim under A1P1 ECHR
The appellants had written employers’ liability insurance policies. They appealed against rejection of their challenge to the 2009 Act which provided that asymptomatic pleural plaques, pleural thickening and asbestosis should constitute actionable . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
Cited – AGOSI v The United Kingdom ECHR 24-Oct-1986
Krugerrand coins were seized by the Commissioners and the claimant was unsuccessful in obtaining their restoration under what is now section 152(b) of the 1979 Act. It was argued that the request for restoration of the coins amounted to a . .
Cited – Gasus Dosier-Und Fodertechnik Gmbh v The Netherlands ECHR 23-Feb-1995
Even where an interference in property rights involved the complete loss of a person’s economic interest in an asset for the benefit of the State, an absence of compensation might still be compatible with Article 1. ‘The Court recalls that the . .
Cited – Pressos Compania Naviera S A And Others v Belgium ECHR 20-Nov-1995
When determining whether a claimant has possessions or property within the meaning of Article I the court may have regard to national law and will generally do so unless the national law is incompatible with the object and purpose of Article 1. Any . .
Cited – Back v Finland ECHR 20-Jul-2004
The claimant was the owner of a substantial debt owed by another individual. However the value of his debt was reduced to a very small level when the debtor entered a statutory scheme for compromise of debts.
Held: It must be open to a . .
Cited – Grainger and Others v The United Kingdom ECHR 10-Jul-2012
. .
Cited – Paulet v The United Kingdom ECHR 13-May-2014
ECHR Article 1 para. 1 of Protocol No. 1
Peaceful enjoyment of possessions
Narrow scope of review for order confiscating wages from employment obtained using a false passport: violation
Facts – . .

Cited by:

Cited – Mathieson v Secretary of State for Work and Pensions SC 8-Jul-2015
The claimant a boy of three in receipt of disability living allowance (‘DLA’) challenged (through his parents) the withdrawal of that benefit whilst he was in hospital for a period of more than 12 weeks. He had since died.
Held: The appeal . .
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – Scotch Whisky Association and Others v The Lord Advocate and Another SC 15-Nov-2017
The Association challenged the imposition of minimum pricing systems for alcohol, saying that it was in breach of European law. After a reference to the ECJ, the Court now considered its legality.
Held: The Association’s appeal failed. Minimum . .
Cited – DA and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 15-May-2019
Several lone parents challenged the benefits cap, saying that it was discriminatory.
Held: (Hale, Kerr LL dissenting) The parents’ appeals failed. The legislation had a clear impact on lone parents and their children. The intention was to . .
Lists of cited by and citing cases may be incomplete.

President V Skouris
[2014] EUECJ C-399/12, ECLI:EU:C:2014:289, [2015] All ER (EC) 672, [2015] 1 QB 419, [2014] WLR(D) 412, [2015] 2 WLR 1023
Bailii, WLRD
England and Wales
Citing:
Opinion – Germany v Council C-399/12 ECJ 29-Apr-2014
ECJ (Advocate General’s Opinion) International Organizations – Procedure for conclusion of an agreement – Determination of positions to be adopted on behalf of the Union in a forum established by an agreement – . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 27 January 2022; Ref: scu.572697

Barron and Others v Collins MEP: QBD 22 Dec 2016

The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her request for protection. She now said that she had not been properly advised when settling.
Held: After discussing each of them, the court jeld that: ‘the defendant falls a long way short of demonstrating that the public interest requires an investigation of the matters of defence that she has put forward.’ Her application was dismissed.

Warby J
[2016] EWHC 3350 (QB)
Bailii
Defamation Act 1996 2 3 4
England and Wales
Citing:
Cited – Di Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
Cited – Warren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
See Also – Barron MP and Another v Vines QBD 29-Apr-2015
The court considered the damages to be awarded afer a libellous television broadcast on Sky TV. The claimants were MPs for Rotherham. There had been a large scale abuse of children, and they had been accused of not responding properly to it by the . .
See Also – Barron MP and Others v Collins MEP QBD 29-Apr-2015
Trial of preliminary issues in for defamation. The claimants, MPs for Rotherham areas, said that a speech by the defendant to the UKIP conference and repeated on TV contained assertions defamatory of them.
Held: The words complained of bore . .
Cited – Decker v Hopcraft QBD 30-Apr-2015
The claimant, a litigant in person, was absent from the hearing of a defamation action arising from a dispute between the parties in their capacities as committee members of the Crawley Boxing Club.
Held: The court gave its reasons for . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 27 January 2022; Ref: scu.572647

Remondis GmbH and Co KG v Region Hannover: ECJ 21 Dec 2016

ECJ Judgment – Reference for a preliminary ruling – Article 4(2) TEU – Respect for the national identity of the Member States inherent in their fundamental political and constitutional structures, including local and regional self-government – Internal organization of the Member States – Communities Territorial legislation – Legal instrument creating a new public-law entity and organizing the transfer of powers and responsibilities for the performance of public tasks – Public procurement – Directive 2004/18 / EC – Article 1 (2) (a) – Concept of ‘public contract

C-51/15, [2016] EUECJ C-51/15
Bailii
TEU 4(2), Directive 2004/18/EC 1(2)(a)
European

Constitutional

Updated: 27 January 2022; Ref: scu.572607

Napier, Re Application for Judicial Review (Ruling On Application for Mandatory Orders): QBNI 20 Dec 2021

Scoffield J
[2021] NIQB 120
Bailii
Northern Ireland Act 1998 52A 52B
Northern Ireland

Northern Ireland, Constitutional

Updated: 26 January 2022; Ref: scu.670947

McCord, Re Judicial Review: QBNI 28 Oct 2016

The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had been displaced by the 1998 Act.
Held: There was no particular provision in the Northern Ireland legislation to prevent the use of the royal prerogative in the way suggested.

Maguire J
[2016] NIQB 85
Bailii
Northern Ireland Act 1998, European Communities Act 1972
Northern Ireland
Citing:
Cited – Shindler and Another v Chancellor of The Duchy of Lancaster and Another CA 20-May-2016
UK free to disenfranchise citizens resident abroad
The claimants appealed against rejection of their challenges to the 2015 Act. As British citizens who had lived abroad for more than fifteen years, they were not to be allowed to vote.
Held: The claim failed. The Act was not in breach of . .
Cited – McCotter, Re Judicial Review QBNI 14-Jan-2014
The applicant sought judicial review of the respondent’s decision to select candidates for redundancy by means of a lottery-type exercise. . .
Cited – Robinson v Secretary of State for Northern Ireland and Others HL 25-Jul-2002
The Northern Ireland Parliament had elected its first minister and deputy more than six weeks after the election, but the Act required the election to be within that time. It was argued that as a creature of statute, the Parliament could not act . .

Cited by:
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Appeal from – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 24 January 2022; Ref: scu.570799

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

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

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

Commonwealth, Constitutional

Updated: 24 January 2022; Ref: scu.570730

Parliament v Council C-14/15: ECJ 22 Sep 2016

ECJ (Judgment) Actions for annulment – Police and judicial cooperation in criminal matters – Automated data exchange – Registration of vehicles – Dactyloscopic data – Legal framework applicable following the entry into force of the Treaty of Lisbon – Transitional provisions – Secondary legal basis – Distinction between legislative acts and implementing measures – Consultation of the European Parliament – Initiative of a Member State or of the European Commission – Voting rules

ECLI:EU:C:2016:715, [2016] EUECJ C-14/15
Bailii
European

Constitutional

Updated: 23 January 2022; Ref: scu.569518

Royal College of Nursing of the United Kingdom v Department of Health and Social Security: HL 2 Jan 1981

The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out by nurses acting on the instructions of such a practitioner.
Held: The phrase ‘treatment for the termination of pregnancy’ meant something broader than the act of termination itself. Rather it contemplated treatment that was in the nature of a team effort, covering the whole process designed to bring about a termination.
The Act was a complete description of what could lawfully be done.
Lord Diplock said: ‘What the Act sets out to do is to provide an exhaustive statement of the circumstances in which treatment for the termination of a pregnancy may be carried out lawfully.’
and ‘The policy of the Act, it seems to me is clear. There are two aspects to it: the first is to broaden the grounds upon which abortions may be lawfully obtained: the second is to ensure that the abortion is carried out with all proper skill and in hygienic conditions.’ and
‘I have spoken of the requirements of the Act as the way in which ‘treatment for the termination of the pregnancy’ is to be carried out rather than using the word ‘termination’ or ‘terminated’ by itself, for the draftsman appears to use the longer and the shorter expressions indiscriminately, as is shown by a comparison between sub-sections (1) and (3) of section 1, and by the reference in the conscience clause to ‘treatment authorised by this Act’. Furthermore if ‘termination’ or ‘terminated’ meant only the event of miscarriage and not the whole treatment undertaken with that object in mind, lack of success which apparently occurs in one or two per cent of cases, would make all who had taken part in the unsuccessful treatment guilty of an offence under section 58 or 59 of the Offences Against the Person Act 1861. This cannot have been the intention of Parliament.’
Lord Wilberforce said, in dissenting: ‘In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs at the time. Leaving aside cases of omission by inadvertence, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts may consider that they fall within the Parliamentary intention, if they fall within the same genus of facts as those addressed. They may also do so if there is a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question ‘What would Parliament have done in this current case – not being one in contemplation – if the facts had been before it?’ attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself.’
Lord Keith said: ”Termination of pregnancy’ is an expression commonly used, perhaps rather more by medical people than by laymen, to describe in neutral and unemotive terms the bringing about of an abortion. So used, it is capable of covering the whole process designed to lead to that result, and in my view it does so in the present context. Other provisions of the Act make it clear that termination of pregnancy is envisaged as being a process of treatment.’

Lord Wilberforce, Lord Diplock, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Roskill
[1981] AC 800, [1981] 1 All ER 545, [1981] 2 WLR 279, [1980] UKHL 10
Bailii
Abortion Act 1967, Offences Against the Person Act 1861 58 59
England and Wales
Citing:
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Appeal from – Royal College of Nursing of the United Kingdom v Department of Health and Social Security CA 1981
The College sought clarification of the role to be undertaken by nurses in abortion procedures. Lord Denning MR said: ‘when a pregnancy is terminated by medical induction, who should do the actual act of termination? Should it be done by a doctor? . .

Cited by:
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Adopted – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Regina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .
Cited – 1 Pump Court Chambers v Horton EAT 2-Dec-2003
The chambers appealed a finding of discrimination, saying that a pupil was not a member of the set so as to qualify under the Act.
Held: The barristers set or chambers was a trade organisation, but the position of a pupil barrister was not . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Regina v Dhingra CC 1991
(Crown Court at Birmingham) A doctor who had fitted a patient, with an IUD was charged with an offence under section 58 of the 1861 Act. Having heard medical evidence from two consultant gynaecologists and legal argument the judge withdrew the case . .
Cited – Quintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
Cited – Oxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
Cited – Harding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
Cited – H, Regina v (Interlocutory application: Disclosure) HL 28-Feb-2007
The trial judge had refused an order requested at a preparatory hearing by the defence for the disclosure of documents held by the prosecutor. The House was now asked whether a right of appeal existed against such a refusal.
Held: The practice . .
Cited – Office of Fair Trading v Lloyds TSB Bank PlC and Others HL 31-Oct-2007
The House was asked whether the liability of a credit card company under the 1974 Act applied where the contract was performed abroad and subject to foreign law.
Held: The principle which disapplied an English statute in an extra-territorial . .
Cited – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – British Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
Cited – Equality and Human Rights Commission v Prime Minister and Others Admn 3-Oct-2011
The defendant had published a set of guidelines for intelligence officers called upon to detain and interrogate suspects. The defendant said that the guidelines could only be tested against individual real life cases, and that the court should not . .
Cited – Doogan and Another v NHS Greater Glasgow and Clyde Health Board SCS 24-Apr-2013
(Extra Division, Inner House) The reclaimers, Roman Catholic midwives working on a labour ward as co-ordinators, sought to assert a right of conscientious objection under the 1967 Act. The respondents said that only those directly involved in the . .
Cited – Trail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
Cited – Greater Glasgow Health Board v Doogan and Another SC 17-Dec-2014
Roman Catholic Midwives, working as Labour Ward Co-ordinators had objected to being involved in an administrative capacity in abortions being conducted by the appellants. The Outer House had said they were not entitled to opt out, but the Inner . .
Cited – Transport for London v Uber London Ltd Admn 16-Oct-2015
TFL sought a declaration as to the legality of the Uber taxi system. Otherwise unlicensed drivers took fares with fees calculated by means of a smartphone app. The Licensed Taxi drivers said that the app operated as a meter and therefore required . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Constitutional, Crime

Leading Case

Updated: 22 January 2022; Ref: scu.180052

Regina v Boundary Commission for England, ex part Gateshead Borough Council: CA 25 Jan 1983

Sir John Donaldson MR, Slade, Robert Goff LJJ
[1983] 1 QB 600, [1983] EWCA Civ 10
Bailii
England and Wales

Elections, Constitutional

Updated: 22 January 2022; Ref: scu.262667

Napier, Re Application for Judicial Review: QBNI 11 Oct 2021

Application in which the applicant seeks to challenge decisions or actions on the part of a number of Ministers of the Northern Ireland Executive – acting in conformity with a policy outlined by their party leader, Sir Jeffrey Donaldson MP – by which the respondents either have not attended, or propose not to attend, meetings of the North-South Ministerial Council

Scoffield J
[2021] NIQB 86
Bailii
Northern Ireland

Constitutional

Updated: 21 January 2022; Ref: scu.670937

Proclamations, Case of: KBD 1 Nov 1610

The King, as the executive government, sought to govern by making proclamations. In particular the court rejected the proposition that ‘the King by his proclamation may prohibit new buildings in and about London’
Held: The monarch had no power to legislate domestically in his own right.
Sir Edward Coke CJ said: ‘The King by his proclamation or other ways cannot change any part of the common law, or statute law, or the customs of the realm . . true it is that every precedent hath a commencement; but when authority and precedent is wanting, there is need of great consideration, before that any thing of novelty shall be established, and to provide that this be not against the law of the land: for I said, that the King cannot change any part of the common law, nor create any offence by his proclamation, which was not an offence before, without Parliament. ‘
and ‘In the same term it was resolved by the two Chief Justices, Chief Baron and Baron Altham, upon conference betwixt the Lords of the Privy Council and them, that the King by his proclamation cannot create any offence which was not an offence before, for then he may alter the law of the land by his proclamation in a high point . . the law of England is divided into three parts, common law, statute law and custom, but the King’s proclamation is none of them . . Also it was resolved, that the King hath no prerogative, but that which the law of the land allows him.’

Sir Edward Coke CJ
[1610] EWHC KB J22, (1611) 12 Co Rep 74, 77 ER 1352
Bailii
England and Wales
Cited by:
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Laker Airways v Department of Trade CA 15-Dec-1976
Policy guidance issued by the respondent was unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act. The court discussed the status of guidance issued by the respondent: . .
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .
Cited – Miller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Suffolk Coastal District Council v Hopkins Homes Ltd and Another SC 10-May-2017
The Court was asked as to the proper interpretation of paragraph 49 of the National Planning Policy Framework: ‘Housing applications should be considered in the context of the presumption in favour of sustainable development. Relevant policies for . .
Cited – Miller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 19 January 2022; Ref: scu.248367

Novello v Toogood: 29 Apr 1823

The defendant a British born subject was a music master and teacher of Italian, but was also employed in part as a chorister in the chapel of a foreign ambassador. He rented a large house, subletting parts. He resisted distraint on the premises for non-payment of poor rates.
Held: The appointment as a servant of the foreign ambassador was not sufficient to to protect him from such distraint, at least so far goods were not associated with hs appointment.

(1823) 1 B and C 554, [1823] EngR 492, (1823) 1 B and C 554, (1823) 107 ER 204
Commonlii
England and Wales
Cited by:
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Aziz v Aziz and others CA 11-Jul-2007
The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Rating

Updated: 18 January 2022; Ref: scu.239963

In re D (A Child): SC 22 Jun 2016

F had obtained an order in Romania for the custody of D. F obtained orders initially for the registration and enforcement of that order, but the High Court reversed that saying that neither the child nor his mother had been given adeuate opportunity to take part in the proceedings in Romania. F’s appeal to the Court of appeal having been rejected, he now sought to appeal to the Supreme Court who heard as a preliminary issue M’s argument that it did not have jurisdition to hear such an appeal.
Held: The Court did not have jurisdiction to hear te Appeal. Its general jurisdiction under section 40 of the 2005 Act was subject to any other provision. In this case Regulation 2201/2003 provided that there could be only one appeal at law, and that appeal had been to the Court of Appeal. The leave to appeal was struck out.
The position under BIIR is clear. There is a largely formal first stage when a judgment is declared enforceable; there is to be a first ‘appeal’ when the enforceability decision can be contested; and the decision on that appeal can only be contested by the notified proceedings. The UK’s notification expressly limits the ‘proceedings’ to ‘a single further appeal on a point of law’ which must be made, in England and Wales, to the Court of Appeal.

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Hughes
[2016] UKSC 34, [2016] 3 WLR 145, [2016] Fam Law 967, [2016] 3 FCR 1, [2016] 2 FLR 379, [2016] AC 1117, [2016] WLR(D) 340, [2016] 4 All ER 95, UKSC 2016/0048
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Video Summary
Council Regulation (EC) No 2201/2003, Council Regulation (EC) No 2201/2003, Constitutional Reform Act 2005 30 40, Brussels II Regulation
England and Wales
Citing:
At first instance – MD v AA and Another FD 31-Jul-2014
M appealed against English orders recognising and registering a decision of the Bucharest Court of Appeal ordered that the custody of D who had lived with his mother in England since the age of eight weeks, should be transferred to his father in . .
Appeal from – D (A Child) (International Recognition) CA 27-Jan-2016
M and F disputed the return of their child D to Romania. F had obtained there an order for custody, and now appealed from refusal of the court here to recognise that order and enforce it. The judge had found that the proceedings in Romania had . .
Cited – Re S (A Child) (Foreign Contact Order) CA 16-Jun-2009
The registration of an order under BIIR is ‘essentially administrative, although it requires a judicial act’ . .

Lists of cited by and citing cases may be incomplete.

Children, International, Constitutional

Updated: 18 January 2022; Ref: scu.565829

Marra v De Gregorio C-201/07 (Privileges And Immunities): ECJ 21 Oct 2008

ECJ Grand Chamber – Reference for a preliminary ruling European Parliament Leaflet issued by a Member of the European Parliament containing insulting remarks – Claim for non-pecuniary damages – Immunity of Members of the European Parliament
The question of immunity gave rise to three questions: ‘ . . first, whether, where the national court which has to rule on an action for damages brought against a Member of the European Parliament in respect of opinions expressed by him has received no information regarding a request from that member to the Parliament seeking defence of his immunity, that court may itself rule on whether the immunity provided for in Article 9 of the Protocol applies with regard to the factors in the particular case; second, whether, where the national court is informed of the fact that that member has made such a request to Parliament, that court must await the decision of the Parliament before continuing with the proceedings against that member; and, third, whether, where the national court finds that that immunity does apply, it must request the waiver of that immunity for the purposes of continuing with the legal proceedings.’ To which the answers were Yes, Yes and No

V. Skouris, P
[2008] EUECJ C-201/07
Bailii
Citing:
Opinion – Marra v De Gregorio C-201/07 ECJ 26-Jun-2008
ECJ Opinion – Privileges And Immunities – Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) . .
See Also – Marra v De Gregorio C-200/07 ECJ 21-Oct-2008
ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 16 January 2022; Ref: scu.564503

Marra v De Gregorio C-200/07: ECJ 21 Oct 2008

ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European Parliament

[2008] EUECJ C-200/07
Bailii
Citing:
Opinion – Marra v De Gregorio C-200/07 (Privileges and Immunities) ECJ 26-Jun-2008
ECJ Opinion – Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) . .

Cited by:
See Also – Marra v De Gregorio C-201/07 (Privileges And Immunities) ECJ 21-Oct-2008
ECJ Grand Chamber – Reference for a preliminary ruling European Parliament Leaflet issued by a Member of the European Parliament containing insulting remarks – Claim for non-pecuniary damages – Immunity of . .
Cited – Barron and Others v Collins QBD 16-May-2016
The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 16 January 2022; Ref: scu.564504

Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2): HL 22 Oct 2008

The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had been made (ineffectively) to assist the dispossessed islanders, but an order was created under prerogatve powers which prevented their return save with consent. They now challenged the lawfulness of the constitution order.
Held: An Order in Council legislating for a colony (Diego Garcia in the Chagos Islands) was amenable to judicial review. The orders were not unlawful, since they fell within the range of lawful Orders in Council.
The actions of the respondent were properly open to severe criticism. The Queen in Council may legislate for a colony in the interests of the United Kingdom: ‘No doubt she is also required to take into account the interests of the colony (in the absence of any previous case of judicial review of prerogative colonial legislation, there is of course no authority on the point) but there seems to me no doubt that in the event of a conflict of interest, she is entitled, on the advice of Her United Kingdom ministers, to prefer the interests of the United Kingdom.’ In reality the claim was a way of attempting to improve the financial provision allocated to them. There was no expectation created by the Foreign Secretary’s
Lord Hoffmann said that though much of the argument had been about matters of constitutionality, in practice this was an application for judicial review. The order was made in accordance with interest of defence of the realm, and of relations with the United States: ‘Judicial review should be undertaken with a light touch and the Order set aside only if it appeared to be wholly irrational.’
Whatever injustice led to the present situation, the reality was that the islanders could not return without a support they will not get: ‘The Chagossians have, not unreasonably, shown no inclination to return to live Crusoe-like in poor and barren conditions of life. The action is, like Bancoult (1), a step in a campaign to achieve a funded resettlement.’
There had here been no clear and unambiguous promise upon which a claim could be based, and the claim failed.
‘since the 17th century the prerogative has not empowered the Crown to change English common or statute law’.
Lords Carswell and Mance agreed.
Lord Bingham said that the law distinguished between ‘belonger’s whose right to live somehwere was not subject to immigration control, and others. The Chagos islanders belonged on their islands, and a law which prevented them doing so was unlawful. The scope of prerogative power under which the order had been made could no longer be extended. Its use must be checked by seeing whether it has been used before. If it had not, then it dd not exist. If valid as a use, rule 9 of the Order was irrational. There was no good reason for making it. Lord Mance agreed with Lord Bingham.
Lord Rodger said that the effect of the 1865 Act was clear, and it was that ‘no colonial law was to be void or inoperative on the ground of repugnancy to the law of England, unless it was repugnant to the provisions of some Act of Parliament which was made applicable to the colony by express words or necessary intendment.’ This included orders in council. The order was valid, and the appeal allowed.

Lord Hoffmann, Lord Bingham of Cornhill, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2008] UKHL 61, (2008) 158 NLJ 1530, [2008] 3 WLR 955, [2008] 4 All ER 1055, [2009] 1 AC 453
Bailii, Times, HL
British Indian Ocean Territory (Constitution) Order 2004, Magna Carta 29, Colonial Laws Validity Act 1865 2 3, British Indian Ocean Territory (Immigration) Order 2004
England and Wales
Citing:
Appeal from – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
At first instance – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .
At first instance – 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: . .
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 – The Queen v Burah PC 5-Jun-1978
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 and 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Riel v The Queen PC 1885
A power given to a Parliament to ‘make laws for the peace, order and good government’ is ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to’ . .
Cited – Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation 1933
The court was asked whether Australian estate duty could be levied on movables situated abroad.
Held: When testing the validity of a law passed by the government of a dominion, the question was ‘whether the law in question can be truly . .
Cited – Regina v London Borough of Newham and Manik Bibi and Ataya Al-Nashed CA 26-Apr-2001
CS The housing authority had mistakenly thought that it was obliged to re-house the applicants under the Act with secure accommodation, and promised them accordingly.
Held: That promise had created a . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – Ibralebbe v The Queen PC 1964
(St. Christopher and Nevis) A power to make laws for ‘peace, order and good government’ was used to confer legislative power on the Parliament of independent Ceylon, to connote ‘in British constitutional language, the widest law-making powers . .
Cited – Union Steamship Company of Australia Pty Ltd v King 26-Oct-1988
Austlii (High Court of Australia) Constitutional Law (Cth) – Inconsistency between Commonwealth and State laws – Compensation of seamen – Laws expressly contemplating coexistence of laws – Whether Commonwealth . .
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – The British Broadcasting Corporation v Johns (HM Inspector of Taxes) CA 5-Mar-1964
The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Council of Civil Service Unions v Minister for the Civil Service HL 22-Nov-1984
Exercise of Prerogative Power is Reviewable
The House considered an executive decision made pursuant to powers conferred by a prerogative order. The Minister had ordered employees at GCHQ not to be members of trades unions.
Held: The exercise of a prerogative power of a public nature . .
Cited – Regina v Ministry of Defence Ex Parte Smith and Others QBD 7-Jun-1995
An MOD ban on employing homosexuals was not Wednesbury unreasonable, even though it might be out of date. Pannick (counsel for the applicant, approved): ‘The court may not interfere with the exercise of an administrative discretion on substantive . .
Cited – Entick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .
Cited – Fabrigas v Mostyn 1773
Minorca was a ceded colony of the British Crown. The Governor, General Mostyn, apparently fearing that Fabrigas would stir up danger for the garrison, committed him to the worst prison on the island, with no bed and only bread and water, and with no . .
Affirmed – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
Cited – Attorney General v De Keyser’s Royal Hotel Ltd HL 10-May-1920
A hotel had been requisitioned during the war for defence purposes. The owner claimed compensation. The AG argued that the liability to pay compensation had been displaced by statute giving the Crown the necessary powers.
Held: There is an . .
Cited – Burmah Oil Company (Burma Trading) Limited v Lord Advocate HL 21-Apr-1964
The General Officer Commanding during the war of 1939 to 1945 ordered the appellants oil installations near Rangoon to be destroyed. The Japanese were advancing and the Government wished to deny them the resources. It was done on the day before the . .
Cited – In re Lord Bishop of Natal 1865
. .
Cited – Liyange v Regina PC 1966
The appellant, who had been involved in an attempted coup in Ceylon, sought to argue that a retroactive law relating to his trial was void.
Held: The argument succeeded. The separation of powers inherent in the Constitution had been infringed, . .
Cited – Phillips v Eyre CEC 1870
The court considered the rule of double actionability. The court laid down the test for whether a tort committed abroad was actionable in this jurisdiction: ‘As a general rule, in order to found a suit in England for a wrong alleged to have been . .
Cited – Auld v Murray 1864
. .
Cited – M v Home Office and Another; In re M HL 27-Jul-1993
A Zairian sought asylum, but his application, and an application for judicial review were rejected. He was notified that he was to be returned to Zaire, but then issued new proceedings for judicial review. The judge said that his removal should be . .
Cited – Edwards v Cruickshank 1840
Lord President Hope described the jurisdiction of supreme courts: ‘With regard to our jurisdiction, and the jurisdiction of the supreme courts in every civilized country with which I am acquainted, I have no doubt. They have power to compel every . .
Cited – Building Construction Employees and Builders’ Labourers Federation of New South Wales v Minister for Industrial Relations 1986
(New South Wales Court of Appeal) The court upheld the validity of a law which directed a particular outcome of a judicial act. The words included the formula ‘prescribe and confine the scope of the legislative field open to the New South Wales . .
See Also – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .

Cited by:
Cited – Parris v Williams CA 23-Oct-2008
The parties had been business partners, but the business failed, and Mr Williams was made bankrupt. Mr Parris was offered a chance to purchase two apartments, and did so in his own name. Mr Williams asserted an interest, saying that it had been a . .
Cited – London Borough of Hillingdon and Others, Regina (on the Application of) v The Lord Chancellor and others Admn 6-Nov-2008
The claimant challenged the substantial increase in court fees in public law children cases in the Fees Orders. The respondent said that the orders were intended to reflect the true costs of such proceedings and that funding had been provided to . .
Applied – Misick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .
Cited – Secretary of State for The Home Department v Pankina CA 23-Jun-2010
Each claimant had graduated from a tertiary college and wished to stay on in the UK. They challenged the points based system for assessing elgibility introduced in 2008 after they had commenced their studies. The new rules tightened the criteria for . .
Cited – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 25-Jul-2012
The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 21-Nov-2012
Reasons for decision allowing re-amendment of claim and requiring production of documents by a non-party. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Cited – Badger Trust, Regina (on The Application of) v Secretary of State for Environment Food and Rural Affairs Admn 29-Aug-2014
The respondent had carried out the first round of a badger cull, subject to supervision and reporting by an independent expert panel. Promoises were made, the claimant said, that the panel’s role would be maintained for any subsequent round. The . .
Cited – Barclay, and Another, Regina (on The Application of) v Secretary of State for Justice and Lord Chancellor and Others Admn 9-May-2013
The applicants had successfully challenged some provisions in the constitution of Sark, and amending legislation had been brought in, but they now complained of the new provisions.
Held: Where a challenge was intended to the advice given by UK . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Miller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Reconsidered – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Bashir and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 30-Jul-2018
(Interim Judgment) The respondent asylum seekers had been rescued in the Mediterranean and taken to an RAF base in Akrotiri on Cyprus, a sovereign base area. The court was now asked whether they were entitled, or should be permitted, to be resettled . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Judicial Review

Leading Case

Updated: 16 January 2022; Ref: scu.277126

Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department: CA 22 Nov 2005

The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants asserted that a legitimate expectation had been created.
Held: The abiding principle which underpins the legitimate expectation cases is the court’s insistence that public power should not be abused. The applicant had not relied on the policy until the error had been made, and no legitimate expectation had been created. ‘Where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law will require the promise or practice to be honoured unless there is good reason not to do so. What is the principle behind this proposition? It is not far to seek. It is said to be grounded in fairness, and no doubt in general terms that is so. I would prefer to express it rather more broadly as a requirement of good administration, by which public bodies ought to deal straightforwardly and consistently with the public.’ and ‘a public body’s promise or practice as to future conduct may only be denied, and thus the standard I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances. ‘
Laws LJ continued: ‘ . . there is every reason to articulate the limits of this requirement – to describe what may count as good reason to depart from it – as we have come to articulate the limits of other constitutional principles overtly found in the European convention. Accordingly a public body’s promise or practice as to future conduct may only be denied, and thus the standard that I have expressed may only be departed from, in circumstances where to do so is the public body’s legal duty, or is otherwise, to use a now familiar vocabulary, a proportionate response (of which the court is the judge, or the last judge) having regard to a legitimate aim pursued by the public body in the public interest. The principle that good administration requires public authorities to be held to their promises would be undermined if the law did not insist that any failure or refusal to comply is objectively justified as a proportionate measure in the circumstances . .’

Laws LJ, Thomas LJ, Nelson J
[2005] EWCA Civ 1363, Times 14-Dec-2005
Bailii
Immigration and Asylum Act 1999 72(2)(a), European Convention on Human Rights 8
England and Wales
Citing:
Cited – Regina v Governor HM Prison Brockhill, ex parte Michelle Carol Evans (No 2) CA 19-Jun-1998
The plaintiff was serving a sentence of imprisonment. Her detention was correctly calculated in accordance with the law as understood. That method was later disapproved when the Divisional Court laid down (everyone has assumed correctly) a different . .
Appeal from – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .
See Also – Secretary of State for the Home Department, Regina on the Application of Soumahoro; Regina on the Application of Nadarajah; and similar CA 19-Jun-2003
In each case asylum applicants had been certified as suitable to be returned to the first country at which they had arrived on fleeing their home countries.
Held: To determine whether article 8 was engaged given the territoriality principle, . .
Cited – Abdi v Secretary of State for the Home Department Admn 5-Dec-2003
. .
Cited – Regina v Secretary of State for the Home Department, Ex Parte Thangarasa; Same Ex parte Yogathas HL 17-Oct-2002
The applicants were asylum seekers who had been ordered to be returned to Germany, the country to which they had first escaped, for their asylum claims to be dealt with. They objected, asserting that Germany would not deal with their applications in . .
Cited – Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur HL 20-Dec-2000
The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore . .
Cited – Regina (Yogathas) v Secretary of State for the Home Department CA 9-Sep-2001
When assessing the propriety of an order requiring an asylum seeker to be removed and returned to a third country, it was wrong to look at the processes which might be applied by that third country. The court should look at the outcome of the . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – Huang v The Secretary of State for the Home Department CA 1-Mar-2005
The adjudicator’s function is effectively to retake the Home Secretary’s decision. In doing so he will have regard to the Home Secretary’s policy in relation to the deportation of offenders as a material fact but not as a substitute for or a fetter . .
Cited – Regina (Yaser Mahmood) v Secretary of State for Home Department Admn 9-Aug-2001
The Home Secretary had served notice that the applicant was an illegal immigrant, and liable to deportation. An order had been made for the cross examination of the applicant. He had come to England to study, but soon dropped his immediate plans. He . .
Cited – Regina v Secretary of State ex parte Khan CA 4-Apr-1984
The Secretary of State had refused an entry clearance for a child to be allowed into the United Kingdom for the purpose of adoption by the applicant, but had done so upon grounds nowhere mentioned in a Home Office circular letter apparently setting . .
Cited – Clarke v London Borough of Enfield CA 9-May-2002
Where a decision of a public decision-maker is quashed and the decision falls to be re-taken, it will or at least may be re-taken in light of the legal and factual context prevailing at the time the fresh decision is made. . .
Cited – Birkdale District Electric Supply Co. Ltd v The Corporation of Southport 1926
The appellants, having bound themselves not to exercise their discretion in the raising of electricity prices, were held not to have incompetently fettered their discretion, bearing in mind the commercial purposes for which the discretion was . .
Cited – Regina v Liverpool Corporation ex parte Liverpool Taxi Fleet Operators Association CA 1972
A number of taxi cab owners challenged a decision of the Council to increase the numbers of hackney cabs operating in the city. At a public meeting with the council prior to the decision, the chairman had given a public undertaking that the numbers . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
Mentioned – In Re Findlay, in re Hogben HL 1985
A public authority, and the Prison Service in particular, is free, within the limits of rationality, to decide on any policy as to how to exercise its discretions; it is entitled to change its policy from time to time for the future, and a person . .
Cited – Regina v Inland Revenue Commission ex parte Preston; In re Preston HL 1984
Duty of Fairness to taxpayer – Written Assurance
The applicant was assured by the Inland Revenue that it would not raise further inquiries on certain tax affairs if he agreed to forgo interest relief which he had claimed and to pay a certain sum in capital gains tax.
Held: Where the . .
Cited – Ex parte Hamble (Offshore) Fisheries Ltd 1995
Judicial review was requested of a decision of the Minister to declare a moratorium on the permitted transfer of certain fishing licences.
Held: The request failed. Sedley J put forward a test for what makes a claim for a legitimate . .
Cited – Rashid, Regina (on the Application of) v Secretary of State for the Home Department CA 16-Jun-2005
The Home Secretary appealed against a grant of a judicial review to the respondent who had applied for asylum. The court had found that two other asylum applicants had been granted leave to remain on similar facts and on the appellants, and that it . .
Cited – Regina v North and East Devon Health Authority ex parte Coughlan and Secretary of State for Health Intervenor and Royal College of Nursing Intervenor CA 16-Jul-1999
Consultation to be Early and Real Listening
The claimant was severely disabled as a result of a road traffic accident. She and others were placed in an NHS home for long term disabled people and assured that this would be their home for life. Then the health authority decided that they were . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina v Secretary of State for Home Department and Governor of Her Majesty’s Prison Risley ex parte Hargreaves, Briggs and Green CA 20-Nov-1996
No sufficient expectation which could form the basis of a judicial review arose from an agreement for prison home leave which was later denied. The only legitimate expectation of the prisoners was to have their applications individually considered . .

Cited by:
Cited – X, Regina (on the Application of) v Y School Admn 21-Feb-2007
The court was asked whether a school was entitled to refuse to allow a Muslim girl to wear the niqab full face veil at school. The reasons were ‘first educational factors resulting from a teacher being unable to see the face of the girl with a . .
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .
Cited – Birks, Regina (On the Application of) v Commissioner of Police of the Metropolis Admn 25-Sep-2014
The claimant police officer sought judicial review of a decision to continue his suspension. He had been investigated and cleared after a death in custody. He sought to join the Church of England Ministry and was offered a post. He was re-assured . .
Cited – Mandalia v Secretary of State for The Home Department SC 14-Oct-2015
The Court considered the guidance given to UK Border Agency case workers when considering document submitted by persons applying for leave to enter or stay in the UK as foreign students. M had applied to study here, but had not accompanied his . .
Cited – Hemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .
Cited – Finucane, Re Application for Judicial Review SC 27-Feb-2019
(Northern Ireland) The deceased solicitor was murdered in his home in 1989, allegedly by loyalists. They had never been identified, though collusion between security forces and a loyalist paramilitary was established. The ECHR and a judge led . .

Lists of cited by and citing cases may be incomplete.

Immigration, Human Rights, Constitutional

Updated: 16 January 2022; Ref: scu.235238