Regina v Criminal Injuries Compensation Board Ex parte Lain: QBD 1967

The Crown Prerogative origin of the power to make ex gratia payments does not exclude the scheme under which the payments are made from judicial review. Decisions of the Board may therefore be subject to judicial review.
Lord Parker CJ explained the limits of certiorari: ‘They have varied from time to time being extended to meet changing conditions. At one time the writ only went to an inferior court. Later its ambit was extended to statutory tribunals determining a lis inter partes. Later again it extended to cases where there was no lis in the strict sense of the word but where immediate or subsequent rights of a citizen were affected. The only constant limits throughout were that it was performing a public duty. Private or domestic tribunals have always been outside the scope of certiorari since their authority is derived solely from contract, that is, from the agreement of the parties concerned . . We have, as it seems to me reached the position when the ambit of certiorari can be said to cover every case in which a body of persons of a public as opposed to a purely private or domestic character has to determine matters affecting subjects provided always that it has a duty to act judicially. Looked at in this way the board in my judgment comes fairly and squarely within the jurisdiction of this court . .’
Diplock LJ said: ‘If new tribunals are established by acts of government, the supervisory jurisdiction of the High Court extends to them if they possess the essential characteristics upon which the subjection of inferior tribunal to the supervisory control of the High Court is based. What are these characteristics? It is plain on the authorities that the tribunal need not be one whose determinations give rise directly to any legally enforceable right or liability. Its determination may be subject to certiorari notwithstanding that it is merely one step in the process which may have the result of altering the legal rights or liabilities of a person to whom it relates . .’

Lord Parker CJ, Diplock LJ, Ashworth J
[1967] 2 QB 864, [1967] 2 All ER 770, [1967] 3 WLR 348
England and Wales
Cited by:
Cited – In re McFarland HL 29-Apr-2004
The claimant was convicted, imprisoned, and then his conviction was overturned. He sought compensation. He had pleaded guilty after being told by counsel to expect an adverse direction from the magistrate, following a meeting in private between . .
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 – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .

Lists of cited by and citing cases may be incomplete.

Administrative, Judicial Review, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.196540

Shaw v Director of Public Prosecutions: HL 4 May 1961

Offence of Conspiracy to corrupt public morals

The defendant appealed against his convictions for conspiracy to corrupt public morals, and for living from the earnings of prostitution. He said that first was not an offence known to common law. After it became unlawful for a prostitute to ply her trade on the streets, the defendant had published a ‘Ladies Directory’ with contact details for prostitutes in London.
Held: Conspiracy to corrupt public morals is a crime known to the law of England. (Lord Reid dissenting).
Viscount Simonds discussed the offence under the 1956 Act: ‘a person who is paid for goods or services out of the earnings of prostitution does not necessarily commit an offence under the Act, yet a person does not necessarily escape from its provisions by receiving payment for the goods or services that he supplies to a prostitute. The argument that such a person lives on his own earnings, not on hers, is inconclusive. To give effect to it would be to exclude from the operation of the Act the very persons, the tout, the bully or protector, whom it was designed to catch . . a person may fairly be said to be living in whole or in part on the earnings of prostitution if he is paid by prostitutes for goods or services supplied by him to them for the purpose of their prostitution which he would not supply but for the fact that they were prostitutes.’
The courts had: ‘a residual power, where no statute has yet intervened to supersede the common law, to superintend those offences which are prejudicial to the public welfare. Such occasions will be rare, for Parliament has not been slow to legislate when attention has been sufficiently aroused. But gaps remain and will always remain since no one can foresee every way in which the wickedness of man may disrupt the order of society.’
Lord Reid dissenting said that it was not open to the courts to create a new offence.

Viscount Simonds, Lord Reid, Lord Tucker, Lord Morris of Borth-y-Gest, Lord Hodson
[1962] AC 220, [1961] UKHL 1, [1961] 2 All ER 446, (1961) 45 Cr App R 113
Bailii
Sexual Offences Act 1956 30, Obscene Publications Act 1959 2
England and Wales
Citing:
Cited – Pearce v Brooks 1866
The contract was one for the hire of an ornamental brougham to a prostitute which was supplied with knowledge that it would be used ‘as part of her display’. She returned it in a damaged condition, and refused to make any payments under the contract . .
Cited – Calvert v Mayes CCA 1954
The defendant said that he was not living in part from the earnings of prostitutes. He let out properties used by the tenants for the sale of sexual services to American Servicemen, and also took payments direct from those servicemen.
Held: . .
Cited – Regina v Silver CCC 1955
Judge Maude ruled that it was not an offence for landlords and their agents to let flats to prostitutes at what were described as exorbitant rents and by the learned Judge as ‘prostitute rents’ knowing that they would be used for the purpose
of . .

Cited by:
Re-Considered – Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 10 November 2021; Ref: scu.186955

Guardian News and Media Ltd v AB and CD: CACD 12 Jun 2014

The newspapers objected to the proposed conduct of a terrorist trial entirely in secret.
Held: ‘This case is exceptional. We are persuaded on the evidence before us that there is a significant risk – at the very least, a serious possibility – that the administration of justice would be frustrated were the trial to be conducted in open Court; for what appears to be good reason on the material we have seen, the Crown might be deterred from continuing with the prosecution. We are also of the clear view that in this case it is unreal to contemplate a split trial – with the core of the trial being split into open and in camera hearings. In our judgment, as a matter of necessity, the core of the trial must be heard in camera. ‘
An order was made for the defendants to be identified and for the certain short parts of the hearings to be public. Otherwise the order for the trial to be held in camera were sustaiined.

Gross LJ, Simon, Burnett JJ
[2014] EWCA Crim (B1)
Bailii
England and Wales

Crime, Human Rights, Constitutional, Media

Updated: 10 November 2021; Ref: scu.526513

Imperial Tobacco Ltd v The Lord Advocate As Representing The Scottish Ministers: SCS 2 Feb 2012

The company sought a reclaiming motion after dismissal of their request for judicial review of the 2010 Act of the Scottish Parliament.
Held: The appeal against the Lord Ordinary’s interlocutor was refused.
Lord Reed said that the nature of the Sewell Convention was essentially political, not legal: ‘The Scotland Act is not a constitution, but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from that of establishing a constitution for an independent state such as Jamaica or Barbados, or a British overseas territory such as Bermuda. In form, the Scotland Act does not resemble the fundamental rights provisions of a constitution: its provisions are dense and detailed. The Scotland Act can also be amended more easily than a constitution: a factor which is relevant, since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government’s stated policy on legislation concerning devolved matters (currently embodied in the Memorandum of Understanding and Supplementary Agreements Between the United Kingdom Government, the Scottish Ministers, the Welsh Ministers, and the Northern Ireland Executive Committee, Cm 7864, 2010, para 14), known colloquially as the Sewel Convention, may impose a political restriction upon Parliament’s ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act. They include amendments to Schedules 4 and 5, which can be effected under section 30 by Order in Council. ‘

Lord President, Lord Reed, Lord Brodie
[2012] ScotCS CSIH – 9, 2012 SLT 749, 2012 SC 297, 2012 SCLR 251, 2012 GWD 11-200
Bailii
Tobacco and Primary Medical Services (Scotland) Act 2010 1(1) 9, Scotland Act 1998 29(1)
Scotland
Cited by:
Appeal from – 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 – 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

Leading Case

Updated: 10 November 2021; Ref: scu.450608

Gouriet v Union of Post Office Workers: HL 26 Jul 1977

The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute did not mean that the courts had, in effect, limitless powers to grant interlocutory injunctions whenever they thought it convenient to do so. As to the exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal law, there must be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area.
Lord Diplock said: ‘Authorities about the jurisdiction of the courts to grant declaratory relief are legion. The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used . . Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights. The only kind of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event . . But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not of anyone else.’
As to the right to bring private prosecutions, they are ‘a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.’
Lord Wilberforce noted that the right to bring a private prosecution was ‘a valuable constitutional safeguard against inertia or partiality on the part of authority.’ and ‘That it is the exclusive right of the Attorney-General to represent the public interest – even where individuals might be interested in a larger view of the matter – is not technical, not procedural, not fictional. It is constitutional.’

Lord Wilberforce, Lord Diplock
[1978] AC 435, [1977] UKHL 5, [1977] 3 All ER 70
Bailii
Supreme Court of Judicature (Consolidation) Act 1925, Post Office Act 1953 58(1) 68, Telegraph Act 1863 45
England and Wales
Citing:
Cited – Attorney General of The Dutchy, At The Relation of Mr Vermuden v Sir John Heath nd Others 9-Jul-1690
The Attorney General of the Dutchy Court exhibits an information in behalf of one part-owner of coal-mines, against the other ; outlawry in the relator is a good plea.
In a relator action, the King’s name is only made use of by the form of the . .
Cited – Shore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
Cited – Ex Parte Newton 19-Apr-1855
The Attorney General having refused his fiat for a writ of error to a defendant convicted of a misdemeanour Held, that in a proper case, the fiat was due ex debito justitia; but that the Attorney General was to determine, on his owri responsibility, . .
Cited – London County Council v Attorney General 1901
Lord MacNaghten said: ‘Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else.’
Lord Macnaghten said of a relator action: ‘The initiation of the litigation, and the determination of the . .
Cited – Triefus and Co Ltd v Post Office CA 1957
The plaintiff sought damages after the defendant lost two mail packets.
Held: Acceptance of a postal packet by the Post Office for transmission to the addressee gives rise to no contractual rights. The court analysed the history of legislation . .
Cited – Attorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .
Cited – Attorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .

Cited by:
Cited – Attorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
Cited – Legal and General Assurance Society Ltd v CCA Stationery Ltd ChD 12-Dec-2003
The claimant had managed a pension scheme for the respondent company. It now challenged a finding of maladministration of the scheme, with respect to the methods of calculation of discounts applicable to those leaving the scheme.
Held: Since . .
Cited – Stoke-On-Trent City Council v B and Q (Retail) Ltd HL 1984
The defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. Parliament has given local authorities a . .
Cited – In Re Z (Local Authority: Duty) FD 3-Dec-2004
Mrs Z suffered a terminal disease, and sought to travel to Switzerland supported and assisted by her husband, so that she could terminate her life. She appealed an injunction obtained by the authority to prevent her leaving.
Held: The . .
Cited – Bermuda Cablevision Limited and others v Colica Trust Company Limited PC 6-Oct-1997
(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful. . .
Considered – Meadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
Cited – Cabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
Cited – In Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
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 – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – Brown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
Cited – Ewing, Regina (on the Application of) v Davis Admn 2-Jul-2007
The court considered whether the District Judge had been correct to refuse to issue summonses for private prosecutions where there was a suggestion that only a private dispute at stake.
Held: It ‘never was any requirement that a private . .
Cited – Office of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
Cited – Birmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
Cited – Feetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – Rolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
Cited – Scopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Cited – Rollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
Cited – Gujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .

Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.181965

Rex v Bunting: 1885

Conspiracy to Bribe is Common Law Offence

(Supreme Court of Ontario) A conspiracy to bring about a change in the Government of Ontario by bribing members of the Legislative Assembly to vote against the Government was an indictable offence at common law committed at the time of the conspiracy itself and within the jurisdiction of the ordinary courts.

(1885) 7 OR 524
Canada
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.427745

Leonesio v Ministero Della Agricoltura E Foreste: ECJ 17 May 1972

leonisioECJ197205

ECJ Measures Adopted By An Institution – 1. A community regulation has direct effect and is, as such, capable of creating individual rights which national courts must protect.
Pecuniary rights against the state, conferred by such a regulation, arise when the conditions set out in the regulation are complied with and it is not possible at a national level to render the exercise of them subject to implementing provisions other than those which might be required by the regulation itself.
2. So as to apply with equal force with regard to nationals of all the member states, community regulations become part of the legal system applicable within the national territory, which must permit the direct effect provided for in article 189 to operate in such a way that reliance thereon by individuals may not be frustrated by domestic provisions or practices.
Budgetary provisions of a member state cannot therefore hinder the direct applicability of the community provision and consequently of the exercise of individual rights created by such a provision.
3. Once all the conditions laid down in regulations nos 1975/69 and 2195/69 were fulfilled, those regulations conferred on farmers a right, which national courts must protect, to payment of the slaughtering subsidy by the member state to which they belonged; such rights could be exercised in each case at the end of the period of two months following the establishment of the proof of slaughter as provided in article 10 of regulation no 2195/69. As from that time, the abovementioned regulations give the farmer the right to require payment of the subsidy without that member state’ s being able to rely on arguments based on any legislative provisions or administrative practices to withhold such payment.

[1972] ECR 287, R-93/71, [1972] EUECJ R-93/71
Bailii

European, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.214165

Prohibitions Del Roy; The Case De Modo Decimandi,: CCP 1572

Reservation of Legal Issues to those Trained

The King, James I had sat as a judge to make a decision in a court case.
Held: Edward Coke CJ overturned the decision, holding that such decisions must be made only by those with legal training and in accordance with and subject to the rule of law. Cases were ‘not to be decided by natural reason but by artificial reason and judgement of law, which law is an art which requires long long and experience.’

Edward Coke CJ
[1572] EngR 303, (1572-1616) 12 Co Rep 63, (1572) 77 ER 1342, [1572] EngR 389, (1572-1616) 13 Co Rep 37, (1572) 77 ER 1448
Commonlii, Commonlii
England and Wales

Legal Professions, Constitutional, Natural Justice

Leading Case

Updated: 10 November 2021; Ref: scu.432269

G and C Kreglinger v The New Patagonian Meat and Cold Storage Company: HL 20 Nov 1913

Mortgagor’s collateral dvantage is not a clog

The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal.
Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction.
Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: ‘The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right.’ and
‘The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law.’
As to the doctrine of precedent: ‘To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance.’ The evolving nature of the equitable jurisdiction is ‘to mould the rules which they apply in accordance with the exigencies at the time’.
Lord Parker explained the decision in Bradley v Carritt: ‘The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quaere, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity.’
Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor’s right to redeem is ‘like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be’.
Viscount Haldane, Lord Chancellor, said: ‘the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to.’
The issue for decision was: ‘What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts.’ The agreement for a right to purchase the respondent’s sheepskins was a collateral bargain ‘the entering into which was a preliminary and separable condition of the loan’.

Viscount Haldane, Lord Parker
[1914] AC 25, [1913] UKHL 1
Bailii
England and Wales
Citing:
Cited – Noakes and Co Ltd v Rice HL 17-Dec-1901
Rule Against Clog on equity of Redemption
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the . .
Explained – Bradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .

Cited by:
Cited – Regina v Naviede CACD 21-Mar-1997
The defendant appealed from his conviction for dishonesty. He said that he should have allowed hi to represent himself as to certain aspect of his case, but to have legal representation for others.
Held: The judge was right to reject such a . .
Applied – Cityland and Property (Holdings) Ltd v Dabrah 1968
The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium . .
Cited – Brighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
Cited – Warnborough Ltd v Garmite Ltd CA 5-Nov-2003
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on . .
Cited – Warnborough Ltd v Garmite Ltd ChD 12-Jan-2006
The claimant sought specific performance under a contract for sale of two leasehold properties. The defendant claimed inter alia that the agreement worked as a clog on the equity of the properties. . .
Cited – Jones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.189952

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 parliamentary privilege, and could therefore be prosecuted iin the normal criminal courts.
Held: The appeals failed as to the principle of the question, but any court hearing the case would have to consider whether any item of evidence was used in breach.
Parliamentary privilege is the principle ‘that members of Parliament should be entitled as a matter of incontrovertible right to speak their minds with total freedom. Subject only to self imposed parliamentary ordinance, this is nothing more and nothing less than an absolute, uncircumscribed, and indeed cherished, entitlement.’ In particular ‘the privilege of individual members is concerned with what may be described as their involvement in the legislative process.’ Approved Constitutional reports had recommended that whilst parliamentary privilege remained essential, it should be kept restricted.
‘Submitting a claim for expenses has nothing to do with ‘the need to ensure the member’s entitlement to speak freely without fear’; nor does it involve the exercise of his or her ‘real’ or ‘essential’ functions or his or her ‘core activities’. It is true that a member may need to spend money and recover expenses or allowances in order to perform these functions, but that does not render the incurring and claiming of expenses or allowances a core or essential activity of Parliament: indeed the incurring and claiming of expenses would be, as we have already suggested, classic ancillary activities. If it were otherwise, a member travelling to and from Parliament might be thought to be immune from prosecution for dangerous driving, or evading payment for his rail ticket. In truth, it is impossible to see how subjecting dishonest claims for expenses to criminal investigation would offend against the rationale for parliamentary privilege, or obstruct any member of the House from performing his or her duties.’

Lord Judge LCJ, Neuberger MR LJ,
[2010] EWCA Crim 1910, [2010] WLR (D) 214, [2010] 2 Cr App Rep 34
Bailii
Bill of Rights 1688 9
England and Wales
Citing:
Cited – Rex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
Cited – Jay v Topham 1684
The defendant was serjeant at arms to the House of Commons. Acting under orders from the House, for an alleged contempt of it, he arrested the plaintiff and others. The plaintiff now sued for false imprisonment.
Held: The court overruled the . .
Appeal from – 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 – 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 – 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 – Sir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
Cited – Wellesley v The Duke Of Beaufort; Mr Long Wellesley’s Case 28-Jul-1831
A member of Parliament asserted parliamentary immunity from the consequences of having abducted his child. Lord Brougham LC said: ‘how incumbent it is upon the courts of law to defend their high and sacred duty of guarding the lives, the liberties, . .
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 – Federation of Tour Operators and Others, Regina (on the Application of) v HM Revenue and Customs and others Admn 4-Sep-2007
The claimants complained that the sudden doubling of Airport Passenger Duty was unlawful since it had not been possible to recover this from customers, and was in breach of the Convention.
Held: The claim failed. The cost to the applicants as . .
Cited – Toussaint v Attorney General of Saint Vincent and the Grenadines PC 16-Jul-2007
(Saint Vincent and the Grenadines) The claimant complained of the compulsory purchase of his land. He alleged that the compulsory purchase was discriminatory or illegitimate expropriation: an allegation of impropriety. He sought to base this on . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Attorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Cited – Sharma v Brown-Antoine, Deputy Director of Public Prosecutions and others PC 30-Nov-2006
(Trinidad and Tobago) Complaint was made as to a decision to begin professional discliplinary proceedings against a senior member of the judiciary.
Held: Although a decision to prosecute was in principle susceptible to judicial review on the . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Regina v Greenaway CC 25-Jun-1992
(Central Criminal Court) The defendant Member of Parliament had faced charges of accepting bribes in return for advancing the interests of a commercial company.
Held: The charges were dismissed on the request of the prosecution after a . .
Cited – Regina v Parliamentary Commissioner for Standards Ex Parte Al-Fayed CA 5-Nov-1997
The Parliamentary Commissioner for Standards had published a report relating to a complaint by the applicant against a Member of Parliament.
Held: The applicant sought permission to challenge this by judicial review. The applicant’s appeal . .
Cited – McGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .

Cited by:
Appeal from – 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 – 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. . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 09 November 2021; Ref: scu.421214

Hurtado v California: 1884

Common Law Not Written in Stone

(US Supreme Court) Matthews J spoke of the need for the common law to move forward: ‘as it was the characteristic principle of the common law to draw its inspiration from every fountain of justice, we are not to assume that the sources of its supply have been exhausted. On the contrary, we should expect that the new and various experiences of our own situation and system will mould and shape it into new and not less useful forms.’

Matthews J
(1884) 110 US 516
United States
Cited by:
Cited – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, International

Leading Case

Updated: 09 November 2021; Ref: scu.235926

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 defendant appealed her conviction under the 1967 Act.
Held: The court was asked whether a police officer is entitled, without a warrant, to enter private property against the wishes of the householder in order to detain a person under section 14. It was now accepted that the boyfriend had not yet been arrested. The Act contained a power to use reasonable force to effect an arrest, but no power of entry had been given. The officers had no warrant, and therefore no authority to enter the house. The conviction was quashed.

Lord Wheatley, Lord Reed, Lord Carloway
[2008] ScotHC HCJAC – 55, 2008 GWD 31-476, 2008 SCCR 887, 2008 SCL 1316, 2008 SLT 978, 2009 JC 25, [2008] HCJAC 55
Bailii
Criminal Procedure (Scotland) Act 1995 14, Police (Scotland) Act 1967 41(1)(a)
Scotland
Citing:
Cited – Brawls v Walkingshaw HCJ 1994
The court interpreted what was meant by ‘detained’ within the section: ‘The essential element of detention, within the proper meaning of that word, is the intervention of some outside agency to ensure that the person remains where he has been put. . .
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 – Great Central Railway Co v Bates CA 1921
A police officer has no right to enter land merely because most reasonable householders ‘would not as a rule object if the matter was done bona fide and no nuisance was caused’ . .
Cited – Campbell v Vannet 1997
Police officers who had just seen a serious crime (of supplying or offering to supply heroin) being committed from within premises were held to be entitled to force entry to the premises with a view to apprehending the person who was suspected of . .
Cited – Turnbull v Scott 1990
Police officers had gone to the appellant’s house to arrest him under section 2 of the 1980 Act. They obtained no response after knocking at the front door, although at one point the appellant appeared at an upper window. Finding the back door ajar, . .
Cited – Eccles v Bourque 11-Oct-1974
Canlii (Supreme Court of Canada) An action was brought by the appellant against the respondents, three constables on the Vancouver Police Force, for damages for trespass alleged to have been committed when the . .
Cited – Kuru v State of New South Wales 12-Jun-2008
Austlii (High Court of Australia) Torts – Trespass to land – Power of police to enter private premises – Police officers went to suburban flat after receiving report of male and female arguing – Police treated . .
Cited – Morris v Beardmore HL 1981
Parliament does not intend to authorise tortious conduct except by express provision. It is not for the courts to alter the balance between individual rights and the powers of public officials. The right of privacy is fundamental.
Lord Scarman . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Halliday v Nevill 6-Dec-1984
(High Court of Australia) Criminal Law – Arrest – Police officer pursuing disqualified driver into driveway of private dwelling – Arrest in driveway – Occupier’s permission not required – Whether implied licence to enter driveway – Lawfulness of . .
Cited – Handyside v The United Kingdom ECHR 7-Dec-1976
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 . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 09 November 2021; Ref: scu.276517

Barrett and others v Morgan: HL 27 Jan 2000

The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual nature of the deal, it was not in law a surrender. Sub-tenants had no protection in such situations. The lacuna was recognised, but parliament had done nothing to provide any such protection. ‘I reject the proposition that the service of a notice to quit by either party by pre-arrangement with the other is ‘a consensual transaction which is tantamount to a surrender’ since unlike a surrender it does not need the consent of the recipient to be effective. The proposition that such a transaction is incapable of determining a sub-tenancy is not tenable and does not gain by the substitution of the pejorative word ‘collusive’ for the word ‘consensual’. ‘

Lord Slynn of Hadley Lord Woolf Lord Nicholls of Birkenhead Lord Hope of Craighead Lord Millett
Times 28-Jan-2000, Gazette 10-Feb-2000, [2000] 2 WLR 285, [2000] UKHL 1, [2000] 2 AC 264, [2000] 1 All ER 481
House of Lords, Bailii
Agricultural Holdings Act 1986
England and Wales
Citing:
Approved – Pennell v Payne CA 1995
The operation of the break clause in a lease will (in the absence of provision to the contrary) have the effect of terminating not just the lease but also the underlease, and any inferior sub-tenancies. . .
Appeal from – Barrett and Others v Morgan CA 30-Jun-1998
An artificial surrender of a head lease with the sole intention of defeating a sub tenancy was not effective and the subtenant became head tenant in their stead. The collusion defeated the ruse. ‘It is unilateral notices to quit that destroy . .
Cited – Webb v Russell 1789
The extinguishment of a tenancy by surrender extinguishes also the reversion to any sub-tenancy, so that the remedy for the rent and the covenants attached to the reversion cease with the reversion to which they were annexed. The sub-tenant held the . .
Cited – Baron Sherwood v Moody 1952
A head landlord can even by his own unilateral act in serving notice to quit on the head tenant bring a sub-tenancy to an end if the head tenant fails to serve a counter-notice under the Agricultural Holdings Acts. . .
Cited – Newlon Housing Trust v Alsulaimen and Another HL 29-Jul-1998
A tenancy which had been terminated by a notice given by one of the joint tenants had expired. It did not come to an end by any deed, and so was not capable of being set aside by a family court in the course of divorce proceedings. The possession . .
Cited – Rye v Rye HL 1962
Two brothers were in partneship in unequal shares, but acquired a property for use by the business which they held in equal shares. They agreed a parol yearly tenancy between themselves as owners and as partners. After one died his son took over his . .
Cited – Doe d Beadon v Pyke 1816
it was argued that a surrender of a lease would annihilate all interests derived under the lease.
Held: The argument failed. It was ‘clear law, that though a surrender operates between the parties as an extinguishment of the interest which is . .
Cited – Mellor v Watkins 1874
Allen held a yearly tenancy of premises subject to a yearly sub-tenancy of part. The sub-tenancy was afterwards acquired by the defendant. Allen surrendered his tenancy to the freeholder who re-let the premises to the plaintiff. Neither the tenancy . .
Cited – Phipos v G and B Callegari 1910
(Obiter) The service of an upwards notice to quit on a head landlord by a head tenant had the same effect on a sub-tenancy as a surrender. . .
Overruled – Sparkes v Smart 1990
A notice to quit was served by the head landlord in collusion with the head tenant. . .

Cited by:
Appealed to – Barrett and Others v Morgan CA 30-Jun-1998
An artificial surrender of a head lease with the sole intention of defeating a sub tenancy was not effective and the subtenant became head tenant in their stead. The collusion defeated the ruse. ‘It is unilateral notices to quit that destroy . .
Cited – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Bellcourt Estates Ltd v Adesina CA 18-Feb-2005
The landlord sought to recover arrears of rent. The tenant said that she had surrendered the lease of the properties. The judge had held that she ceased to occupy the premises from November 2000, after which the landlord did not send a demand for . .
Cited – Bellcourt Estates Ltd v Adesina CA 18-Feb-2005
The landlord sought to recover arrears of rent. The tenant said that she had surrendered the lease of the properties. The judge had held that she ceased to occupy the premises from November 2000, after which the landlord did not send a demand for . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Agriculture, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.159035

Inland Revenue Commissioners v Joiner: HL 26 Nov 1975

HL Surtax – Tax advantage – Transaction in securities – Company recon- struction – Surplus assets o f old company distributed in voluntary liquidation – Agreement for liquidation providing for agreed methods o f valuation and distribution – Whether (a) whole scheme o f reconstruction, (b) liquidation agreement, (c) distribution in liquidation a transaction in securities – Whether tax advantage a consequence o f any transaction but the liquidation – Income and Corporation Taxes Act 1970 (c. 10), ss. 460 and 46
The phrase ‘a transaction in securities’ does not include the liquidation of a company. Taxpayers entered into a shareholders’ agreement which varied the rights attached to their shares in important respects before putting the company into liquidation. The variations were all necessary steps in order to achieve the taxpayers’ objective, which was to receive the undistributed profits of the company as surplus assets in the liquidation (and therefore free of surtax) while keeping the business itself in existence. The Court of Appeal had held that the liquidation by itself was a transaction in securities. The Revenue did not contend that a straightforward liquidation without any variation of the rights attached to the shares was a transaction in securities, and the House did not hold that it did. All members of the Committee rested their decision on the ground given by Goulding J at first instance, that the variation of rights constituted a transaction in securities and that accordingly the tax advantage was obtained in consequence of the combined effect of a transaction in securities and the liquidation of a company.
It is a legitimate purpose of legislation by Parliament to clarify the law by making it clear in which of two alternative meanings the ambiguous language of an earlier statute was to be understood, but that it would only be if the language of a provision in an existing statute was ambiguous that it would be legitimate to infer that a purpose of the subsequent statute was to remove doubts as to what the law had always been.
Lord Diplock discussed the nature of a consolidating Act: ‘The purpose of a consolidation Act is to remove this difficulty by bringing together in a single statute all the existing statute law dealing with the same subject-matter which forms the general context in which the particular provisions of the Act fall to be construed, so that it will no longer be necessary to seek that context in a whole series of amended and re-amended provisions appearing piecemeal in earlier statutes.
This is the only purpose of a consolidation Act; this is the only ‘mischief’ it is designed to cure. It is true that a consolidation Act is not intended to alter the law as it existed immediately before the Act was passed, but to treat this absence of intention as justifying recourse to the previous legislation repealed by the consolidation Act in order to ascribe to any of the provisions of that Act a meaning different from that which it would naturally bear when read only in the context of the other provisions of the consolidation Act itself, would be to defeat the whole purpose of this type of legislation-to allow the absence of a tail to wag the dog.’

Lord Wilberforce, Viscount Dilhorne, Lord Diplock
[1975] 1 WLR 1701, [1975] UKHL TC – 50 – 449, 50 TC 449, [1975] STC 657, [1975] TR 257, [1975] 3 All ER 1050, [1975] TR 77
Bailii
Finance Act 1960 28
England and Wales
Cited by:
Cited – Inland Revenue Commissioners v Laird Group plc CA 30-Apr-2002
The taxpayer had sources of foreign income. Arrangements were made to take the benefit through the payment of interim dividends, which it intended to use to set off against liability for advance corporation tax. The Commissioner contended that these . .
Cited – Inland Revenue Commissioners v Sema Group Pension Scheme Trustees CA 19-Dec-2002
The taxpayers appealed a notice under section 703(3) to counteract the tax advantage received by them from a share buy-back scheme. The scheme was an approved pension scheme, under which the quoted company agreed to buy back its own shares.
Cited – Her Majesty’s Commissioners of Inland Revenue v Laird Group plc HL 16-Oct-2003
Was the payment of a dividend in respect of shares ‘a transaction in securities’ or ‘a transaction relating to securities’ within the meaning of section 703.
Held: ‘As a matter of ordinary language, the creation, issue, sale, purchase, . .
Cited – Cantrell v Wycombe District Council CA 29-Jul-2008
The appellant had bought a house at auction. It had previously been sold by a local authority subject to a covenant by the buyer allowing the authority to nominate tenants. The covenant was said to be binding on successors in title, and was . .
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 . .

Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.180845

Wang Yam, Regina (on The Application of) v Central Criminal Court and Another: SC 16 Dec 2015

The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the evidence given in camera. The Supreme Court was now asked whether the English courts had any discretionary power in any circumstances to refuse to permit the appellant to do this at this stage of the proceedings before the ECHR,
Held: The appeal failed. What was to be disclosed was first an issue for he ECHR which might make a request: ‘the inter-play between articles 34 and 38. The European Court of Human Rights has a central role in deciding what material should be disclosed to it: see especially the passages italicised in the quotations from the judgments in Janowiec and Al Nashiri set out in paras 29 and 32 above. A suggestion of breach of article 34 is a matter for the European Court of Human Rights to consider under article 38. It by no means follows that the court will always order disclosure, even of secret material which the alleged victim has never seen, and still less of in camera material which the alleged victim has seen and addressed. On the contrary, the European Court of Human Rights recognises the sensitivity of national security considerations, and the particular competence – one might add responsibility – of national authorities in handling material affecting national security or the safety of witnesses or others. Thus, in deciding whether to order that material withheld by governmental authorities from an alleged victim should be disclosed to it, the European Court of Human Rights will consider the independence and thoroughness of the domestic procedure for reviewing the authorities’ decision. It will consider in that light whether any and if so what further disclosure should be made. It will by no means necessarily conclude that any further disclosure was required.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Clarke, Lord Sumption, Lord Reed, Lord Toulson
[2015] UKSC 76, [2016] HRLR 3, [2015] WLR(D) 526, [2016] 2 WLR 19, [2016] 1 Cr App R 17, [2016] AC 771, UKSC 2015/0044
Bailii, Bailii Summary, WLRD, SC, SC Summary
European Convention on Human Rights 34 38
England and Wales
Citing:
See Also – Yam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
Appeal from – Yam, Regina (on The Application of) v Central Criminal Court and Another Admn 31-Oct-2014
The claimant had been convicted of murder after evidence was given in camera. He sought to apply to the ECHR challenging the fairness of the trial, arguing that he needed and shoudl be free to use the material given in camera.
Held: The . .
Cited – Sisojeva And Others v Latvia ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 8; No violation of Art. 34; Non-pecuniary damage – financial award; Costs and expenses – claim rejected. . .
Cited – Yam, Regina v CACD 28-Jan-2008
An order had been made for the trial of the defendant on a charge of murder to be held excluding both press and public. The Order had been made in the interests of national security and for the protection of the identity of a witness or other . .
Cited – Yam v Regina CACD 5-Oct-2010
The defendant appealed against his conviction for murder saying that since part of the trial had been in camera the result was unsafe.
Held: The appeal failed. The Court addressed submissions advanced on his behalf indicating how substantially . .
Cited – Al Nashiri v Poland (Chamber Judgment) ECHR 24-Jul-2014
. .
Cited – Faraz v Regina CACD 21-Dec-2012
The defendant appealed from his convictions for possession and dissemination of terrorist related publications, saying that the judge should not have admitted evidence of the possession by named terrorist offenders of material similar or identical . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Janowiec And Others v Russia ECHR 21-Oct-2013
ECHR Grand Chamber – Article 3
Inhuman treatment
Positive obligations
Alleged failure adequately to account for fate of Polish prisoners executed by Soviet secret police at Katyn in 1940: no . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional, Criminal Evidence

Leading Case

Updated: 09 November 2021; Ref: scu.556981

HP Bulmer Ltd and Another v J Bollinger Sa and others: CA 22 May 1974

Necessity for Reference to ECJ

Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. But if decided the other way, it would mean that the trial would have to go its full length. It would not in those circumstances be ‘necessary’ for a preliminary ruling to be sought. When the facts are investigated, it might turn out to have been quite unnecessary. For this reason, Lord Denning concluded that as a rule it is only after the facts are ascertained that a determination can be made that a reference is necessary.
Denning described the effect of the EC Treaty: ‘The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the Common Market besides ourselves. The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’
. . And: ‘ In the task of interpreting the Treaty, the English Judges are no longer the final authority. They no longer carry the law in their breasts. They are no longer in a position to give rulings which are of binding force. The supreme tribunal for interpreting the Treaty is the European Court of Justice, at Luxembourg. Our Parliament has so decreed.’
Stephenson LJ discussed article 177 saying: ‘(i) The rulings which the European Court has jurisdiction to give under Article 177(1) are not strictly ‘preliminary’. They do not have to be given ‘in limine’ before the Court of the Member State crosses the threshold and begins to hear a dispute, but they can be given at any time before the Court finishes hearing the dispute by giving judgment. The ruling is in that sense ‘prejudicial’, not necessarily preliminary, though it may be.
(ii) Article 177(2) confers a power, whereas Article 177(3) imposes an obligation. A lower Court of a Member State ‘may’ request a ruling, a final Court ‘shall’. The contrast in the language is as clear as in the section of the English statute which this Court construed in Re Baker (1890) 44 Ch. Div. 262, and has the same effect: the lower Court is trusted with a discretion, the final Court is not. All attempts to blur the distinction between the power of the one and the duty of the other when a question is raised under Article 177(1) break down on the different wording of Article 177(2) and (3). Section 2(1) of the European Communities Act 1972 distinguishes powers from obligations, and so by this wording does Article 177, by whatever canon of construction it is interpreted. The European Court has always recognised that distinction; e.g. in Da Costa en Schaake N.V. and Others v. Nederlande Belasting -administratie (1963) 2 C.M.L.R. 224, 237; and has recently emphasised it and described the power given to the national Courts by Article 177(2) as conferring on them ‘the widest discretion’, which no domestic Court of Appeal can fetter: Firma Rheinmuhlen Dusseldorf v. Enfuhr und Vorratsstelle fur Getreide und Futtermittal, case 166/73 shortly reported in The Times Newspaper of 16th February 1974; to which my Lord has already referred,
(iii) The only questions which the Courts of a Member State can, or in some cases must, refer to the European Court are questions of law within Article 177(1) on which decisions are necessary to enable them to give judgment. If they consider that they can give judgment in the dispute in which the question is raised without deciding the question, they need not and indeed must not trouble the European Court by requesting a ruling or bringing the matter before it. Section 3(1) of the 1972 Act recognises that questions within Article 177(1) are questions of law and may be for determination by our Courts without referring them to the European Court. That is how the Courts of Member States have rightly proceeded, including English Judges, Mr. Justice Whitford among them: Lerose Ltd. v. Hawick Jersey International Ltd. (1972) 12 C.M.L.R. 83.’

Lord Denning MR, Stamp, Stephenson LJJ
[1974] EWCA Civ 14, [1974] 2 All ER 1226, [1974] 3 WLR 202, [1974] Ch 401
Bailii
Regulation 816/76 30, Regulation 817/70 12, European Community Act 1972 2(1) 83, Treaty of Rome 177
England and Wales
Citing:
Cited – Vine Products Ltd v Mackenzie and Co Ltd (the Sherry Case) ChD 1969
Assorted sherry producers and shippers to write to producers and importers of ‘British Sherry’ asking them to stop using the word ‘sherry’ other than in relation to wines emanating from the Jerez district of Spain. Those producers and importers to . .
Cited – Bollinger v Costa Brava Wine Co Ltd 1960
Intruders into the market brought into England a wine somewhat similar to Champagne. It had been produced in the Costa Brava district of Spain. They marketed it under the name ‘Spanish Champagne’. The French growers and shippers brought an action to . .
Cited – John Walker and Sons Ltd v Henry Ost and Co Ltd ChD 1970
The plaintiff whisky distiller claimed in passing-off against the defendant who supplied bottles and labels to a distiller in Ecuador.
Held: An injunction was granted. Having cited from Singer v Loog, the court added: ‘I would be slow to . .
Cited – Da Costa En Schaake Nv, Jacob Meijer Nv, Hoechst-Holland Nv v Netherlands Inland Revenue Administration ECJ 27-Mar-1963
ECJ (Preliminary Ruling ) 1. The obligation imposed by the third paragraph of article 177 of the EEC Treaty upon national courts or tribunals of last instance may be deprived of its purpose by reason of the . .
Cited – Van Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
Cited – Hessische Knappschaft v Maison Singer And Sons ECJ 9-Dec-1965
Procedure – 1. Since the right to determine the questions to be brought before the court devolves upon the court or tribunal of the member state alone, the parties may not change their tenor or have them declared to be without purpose.
2. The . .
Cited – Fratelli Grassi Fu Davide v Italian Finance Administration. (Questions Referred To The Court For A Preliminary Ruling) ECJ 15-Jun-1972
ECJ According to article 177 of the Treaty it is for the national court and not the parties to the main action to bring a matter before the court of justice.
Since the power to formulate the questions to be . .

Cited by:
Cited – Commissioners of Customs and Excise v Aps Samex 1983
It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially . .
Cited – Fisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding . .
Applied – Coast Telecom Ltd v Revenue and Customs FTTTx 11-Apr-2012
Procedure – application for stay pending determination of references to CJEU – whether First-tier Tribunal bound by Mobilx – yes – whether determination of references would materially assist determination of appeal – no – whether expedient to order . .
Cited – The Number (UK) Ltd and Another v Office of Communications CAT 24-Nov-2008
. .
Cited – Vehicle and Operator Services Agency v Jones (Nell) Admn 5-Oct-2005
The Agency appealed against dismissal of its allegation that the defendant had wrongfully withdrawn his tachograph record. He had lifted the top of the tachograph which had the effect if disengaging the marker without actually removing the record . .
Cited – Fage UK Ltd and Another v Chobani UK Ltd and Another CA 28-Jan-2014
Lewison LJ said: ‘Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.262729

Feather v The Queen: 1865

Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for pounds 10,000 as compensation for the damage he had suffered. Much of the case was concerned with whether an exclusive patent granted by the Crown barred free use by the Crown of the method revealed by the patent.
Held: It did not. As to whether a petition of right could be used against the Crown in respect of the alleged wrong, the court (obiter) held that Tobin was correct.
Cockburn CJ said: ‘Now, apart altogether from the question of procedure, a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done to a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong. For to authorize a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized it to be done. It follows that a petition of right which complains of a tortious act by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petitioner to redress. As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise; and the petition, therefore, which rests on such a foundation falls at once to the ground. Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of the minister of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.’ and

‘It is established on the best authority that, in construing grants from the Crown, a different rule of construction prevails from that by which grants from one subject to another are to be construed. In a grant from one subject to another, every intendment is to be made against the grantor, in favour of the grantee, in order to give full effect to the grant; but in grants from the Crown an opposite rule prevails. Nothing passes except that which is expressed, or which is matter of necessity and unavoidable intendment in order to give effect to the plain and undoubted intention of the grant. And in no species of grant does this rule of construction more especially obtain than in grants which emanate from and operate in derogation of, the prerogative of the Crown.’

Cockburn CJ
(1865) 6 B and S 257
England and Wales
Citing:
Cited – Tobin v The Queen 1864
The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to . .

Cited by:
Cited – Roberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
Cited – Crown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.267402

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 jurisdiction to try them because of parliamentary privilege.
Held: The appeals were dismissed. Neither Article 9 nor the exclusive jurisdiction of the House of Commons poses any bar to the jurisdiction of the Crown Court to try the Appellants.
Article 9 is concerned primarily to ensure the freedom of speech and debate within the Houses of Parliament and its committees. To have the benefit of privilege an activity must be such that its absence would impact adversely on the Houses’ core or essential businesses. The claiming of expenses did not fall within that category.
As to the exclusive jurisdiction argument this had now been substantially abandoned by Parliament both as to administrative matters such as these and even as to criminal acts within the Houses.
Lord Phillips considered the concept of ‘exclusive cognisance’, saying: ‘This phrase describes areas where the courts have ruled that any issues should be left to be resolved by Parliament rather than determined judicially. Exclusive cognisance refers not simply to Parliament, but to the exclusive right of each House to manage its own affairs without interference from the other or from outside Parliament. The boundaries of exclusive cognisance result from accord between the two Houses and the courts as to what falls within the exclusive province of the former. Unlike the absolute privilege imposed by article 9, exclusive cognisance can be waived or relinquished by Parliament.’

Lord Phillips, President, Lord Hope, Deputy President, Lord Rodger, Lady Hale, Lord Brown, Lord Mance, Lord Collins, Lord Kerr, Lord Clarke
[2010] UKSC 52, [2010] WLR (D) 311, UKSC 2010/0195, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805, [2011] 1 AC 684
Bailii, Bailli Summary, WLRD, SC Summary, SC
Theft Act 1968 17(1)(b), Bill of Rights 1689 9
England and Wales
Citing:
At Crown Court – 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 – Rex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
Cited – Rex v Lord Abingdon 1794
A Member of Parliament chose to have his earlier speech in the House re-published ‘under his authority and sanction . . and at his expense’.
Held: Statements made outside Parliament are not protected by absolute privilege even if they simply . .
Cited – Rex v Creevey Esq MP 1813
A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in . .
Cited – 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 – Wason v Walter; ex parte Wason QBD 1868
Defamation proceedings were begun in respect of newspaper reports of debates in Parliament.
Held: By analogy with reports of judicial proceedings, that fair and accurate reports of parliamentary proceedings were privileged. It was of paramount . .
Cited – Rex v Bunting 1885
Conspiracy to Bribe is Common Law Offence
(Supreme Court of Ontario) A conspiracy to bring about a change in the Government of Ontario by bribing members of the Legislative Assembly to vote against the Government was an indictable offence at common law committed at the time of the . .
Cited – Curistan v Times Newspapers Ltd CA 30-Apr-2008
The court considered the availability of qualified privilege for reporting of statements made in parliament and the actionable meaning of the article, which comprised in part those statements and in part other factual material representing the . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Attorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
Cited – Stopforth v Goyer 1978
(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The . .
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 – P V Narashimo Rao v State 17-Apr-1998
(Supreme Court of India) Members of Parliament were protected by privilege from prosecution for bribery in respect of voting in parliamentary proceedings. . .
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 – Hutchinson v Proxmire 26-Jun-1979
(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful.
Held: Efforts to . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Wellesley v Duke of Beaufort 1827
A member of Parliament claimed parliamentary immunity from the consequences of having abducted his child.
Held: The court discussed the origins of the court’s inherent jurisdiction over children and the infirm. Lord Eldon LC said: it belongs . .
Cited – Wellesley v The Duke Of Beaufort; Mr Long Wellesley’s Case 28-Jul-1831
A member of Parliament asserted parliamentary immunity from the consequences of having abducted his child. Lord Brougham LC said: ‘how incumbent it is upon the courts of law to defend their high and sacred duty of guarding the lives, the liberties, . .
Cited – Edward Kielley v William Carson, John Kent, And Others PC 23-May-1842
The House of Assembly of the Island of Newfoundland does not possess, as a legal incident, the power of arrest, with a view of adjudication on a contempt committed out of the House; but only such powers as are reasonably necessary for the proper . .
Cited – Regina v Parliamentary Commissioner for Standards Ex Parte Al-Fayed CA 5-Nov-1997
The Parliamentary Commissioner for Standards had published a report relating to a complaint by the applicant against a Member of Parliament.
Held: The applicant sought permission to challenge this by judicial review. The applicant’s appeal . .
Cited – Rex v Graham-Campbell, Ex parte Herbert 1935
Mr A P Herbert had laid two informations at Bow Street Police Station for summonses against fifteen named Members of Parliament, who were members of the Kitchen Committee of the House of Commons and the manager of the Refreshment Department of the . .
Cited – Demicoli v Malta ECHR 27-Aug-1991
Hudoc Judgment (Merits and just satisfaction) Preliminary objection rejected (six month period); Violation of Art. 6-1; Pecuniary damage – claim rejected; Non-pecuniary damage – finding of violation sufficient; . .
Cited – McGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .
Appeal from – 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 by:
Cited – Mereworth v Ministry of Justice ChD 23-May-2011
The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out . .
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. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 09 November 2021; Ref: scu.426896

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 Parliament and the challenge failed. The section set out to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff was defined by the penalties which he can impose and his powers are quintessentially matter of Scots criminal law. As a rule of Scots criminal law, it did not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998. It was a change in procedure.
Lord Walker said that the expression ‘relates to’ in section 29(2)(b) and (3) was ‘familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provision’s purpose and effect, reinforces that.’

Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 10, UKSC 2009/0127, 2010 SCL 476, 2010 SLT 412, 2010 SC (UKSC) 40
Bailii, Times, SC, SC Summ, Bailii Summary
Scotland Act 1998 29(2)(b), Criminal Proceedings etc (Reform)(Scotland) Act 2007 45
Scotland
Citing:
Cited – Logan and Another v Procurator Fiscal HCJ 2-Jul-2008
The appellant challenged sentences for driving whilst disqualified. The defendant questioned the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights. . .

Cited by:
Cited – Jude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
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 – 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 – 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 – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Leading Case

Updated: 09 November 2021; Ref: scu.402004

The Grand Junction Canal Company v Dimes: 1 May 1849

In a suit in which an incorporated company were Plaintiffs, a decree was pronounced by the Vice-Chancellor for England, and was affirmed, on appeal, by the Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a shareholder in the company, and a motion was made to discharge the order of the Lord Chancellor on the ground of his interest in the matter rendering it void.
Held: The Master of the Rolls was of opinion that the motion ought to be refused with costs.
When the Lord Chancellor is a party to a suit, the bill is addressed to the King, and the cause is heard by the Master of the Rolls; but the decree is formally and technically completed, made final, and enrolled as the decree of the King. But where a public company, in which the Lord Chancellor has shares, are suitors, the bill cannot properly be addressed to the Queen in Chancery.
It is a general rule that no one ought to be a judge in his own cause, and no Judge ought, by himself or his deputy, to hear and determine a cause, or make an order, or do any judicial act, in a cause in which he has a personal interest ; but even in a case of disputed interest, a Judge is not incapacitated from making an order, if, by refusing to do so, justice would be denied.
There is not, and cannot, in any case, be an incapacity to make any orderor do any act in a matter within the proper, peculiar and exclusive jurisdiction of a Judge’s office, if such order or act be necessary to prevent a failure of justice. Whatever a Judge’s interest may be, if justice cannot be had, without an act or order of his, he cannot lawfully refuse to do the act, or make the order required. In cases where questions of this kind arise, the Judge must have a certain degree of diseretion, and, having the capacity, his duty does not extend further than the necessity of the case requires ; if there are other Judges having co-ordinate jurisdiction, he may and ought to refuse to act ; but if he, like the Lord Chancellor, should be the sole Judge having jurisdiction in the case it is otherwise.
The signing of a decree of a subordinate Judge by the Lord Chancellor is a judicial act.

[1849] EngR 576, (1849) 12 Beav 63, (1849) 50 ER 984
Commonlii
Citing:
Appeal from – Dimes v The Company of Proprietors of The Grand Junction Canal CExC 1846
By a local Act of Parliament a company was incorporated and empowered to purchase certain lands ; and all persons seised, possessed of or interested in those lands were empowered to conveyed their right and interest therein to the company, in the . .

Cited by:
See Also – The Grand Junction Canal Company v Dimes 2-Jun-1849
The defendant disputed the right of the plaintiff to use the canal constructed across his land. After he had been ordered to allow the boats to pass, the defendant brought 15 actions in trespass. The company now sought an injunction to restrain . .
See Also – The Grand Junction Canal Company v Dimes CA 4-Feb-1850
The defendant had been committed for the breach of an injunction which he believed had been unlawfully granted in that the Lord Chancellor, on appeal, had decided in favour of the plaintiff company in which he held shares. The defendant again . .
See Also – Dimes v Lord Cottenham 2-May-1850
The Court will not, on the application of the plaintiff, grant a trial at bar merely because the defendant is Lord Chancellor and the plaintiff an attorney of the Court. . .
See Also – In Re Dimes 26-Jul-1850
The claimant challenged his committal to prison saying that the order was invalid in that although made under an order of the Vice-Chancellor, the warrant had been endorsed with the letters CC.
Held: Such an endorsement did not mean that the . .
See Also – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
See Also – Dimes v The Proprietors Of The Grand Junction Canal and Others 29-Jun-1852
The plaintiff had brought an action to recover land. His appeal failed, but the House later decided that the Lord Chancellor who heard the appeal should have disqualified himself, because he held shareholdings in the defendant company, and his . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Natural Justice

Leading Case

Updated: 09 November 2021; Ref: scu.298881

Corporate Officer of the House of Commons v The Information Commissioner and others: Admn 16 May 2008

Applicants had sought disclosure of information supplied by members of Parliament in support of expenses claims. The Office appealed against an order from the Commissioner to produce that information, saying that the actions of Parliament are not subject to judicial control or review.
Held: The appeal was dismissed. The tribunal had made no error of law. There could be no reasonable expectation by the MPs that their expense claims would not be divulged. The order for the disclosure of addresses save where there were any particular security issues was also lawful.
‘Necessary’ within schedule 2 of paragraph (6) of the 1998 Act reflected the meaning attributed to it by the European Court of Human Rights when justifying an interference with a recognised right, namely, that there should be a pressing social need, and that the interference was both proportionate as to means and fairly balanced as to ends.

Latham LJ P, Blake J
[2008] EWHC 1084 (Admin), Times 22-May-2008, [2009] 3 All ER 403
Bailii
Freedom of Information Act 2000 1 40, Data Protection Act 1998
England and Wales
Citing:
Cited – The Sunday Times (No 1) v The United Kingdom ECHR 26-Apr-1979
Offence must be ;in accordance with law’
The court considered the meaning of the need for an offence to be ‘in accordance with law.’ The applicants did not argue that the expression prescribed by law required legislation in every case, but contended that legislation was required only where . .
Appeal from – House of Commons v Information Commissioner IT 9-Aug-2007
The Corporate Officer sought to appeal against orders for the disclosure of the travel expenses of a certain member of parliament. . .
Appeal from – House of Commons v Information Commissioner and Norman Baker MP IT 16-Jan-2007
The corporate office of the House challenged orders from the Information Commissioner for the disclosure of the expenses of members of parliament. . .

Cited by:
Cited – Department of Health, Regina (on The Application of) v Information Commissioner Admn 20-Apr-2011
The department appealed against an order requiring it to disclose statistical information about late abortions. The department argued that the numbers involved were such that the individual patients involved mighty be identified, and that therefore . .
Cited – Oates v Information Commissioner FTTGRC 20-Dec-2013
Whether information held s.1 FOIA – Personal data s.1(1) DPA Personal data s.40 FOIA . .
Cited – South Lanarkshire Council v The Scottish Information Commissioner SC 29-Jul-2013
Commissioner’s Approach not in Breach
In May 2010, a Mr Irvine made requests under the 2002 Act for information from South Lanarkshire Council. He wanted to know how many of their employees in a particular post were placed at 10 particular points on the Council’s pay scales. His . .

Lists of cited by and citing cases may be incomplete.

Information, Constitutional, Human Rights

Leading Case

Updated: 09 November 2021; Ref: scu.267717

Chandler (TN) v Director of Public Prosecutions: HL 12 Jul 1962

The defendants appealed from conviction for offences under the 1911 Act. They were supporters of an organisation seeking to prevent nuclear war, and entered an Air Force base attempting to obtain information they would later publish. They pursued a campaign of non-violent civil disobedience. The judge had refused to allow cross examination and evidence concerning the appellants’ beliefs. The Attorney General submitted that since the appellants’ purpose had been to immobilise an airfield, which was a prohibited place, the judge should direct the jury to return a verdict of guilty and that any other verdict would be perverse.
Held: Lord Devlin spoke of the extent to which courts may enquire into the proper exercise of discretionary powers conferred by statute.
Lord Devlin said: ‘It is said that the jury could return only one answer to the question in this case. I must confess that I find it difficult to see how a sensible jury could have acquitted. . But I do not reach such a conclusion as a matter of law and I cannot accept that the judge is entitled to direct the jury how to answer a question of fact, however obvious he may believe the answer to be and although he may be satisfied that any other answer would be perverse. The Attorney-General submitted that, while it is a question of fact for the jury whether the entry was for a purpose prejudicial, once it was proved that the purpose was to interfere with a prohibited place and to prevent its operating, then a judge should be entitled to direct a jury to return a verdict of guilty. With great respect I think that to be an unconstitutional doctrine. It is the conscience of the jury and not the power of the judge that provides the constitutional safeguard against perverse acquittal . . A judge may, of course, give his opinion to the jury on a question of fact and express it as strongly as the circumstances permit, so long as he gives it as advice and not as direction. The trial judge indicated a fairly strong opinion in the present case, particularly at the end of his summing-up, when he hinted to the jury that there was only one verdict that they could in conscience return. But this was not improper, for even in relation to the limited facts which he left for their consideration, he told them clearly several times that the question was for them to answer.’
The side notes in Acts of Parliament are not debated during the progress of a Bill through Parliament, and cannot be amended. Greater caution must accordingly be used before reliance upon them.
Lord Devlin said : ‘There is no rule of common law that whenever questions of national security are being considered by any court for any purposes, it is what the Crown thinks to be necessary or expedient that counts, and not what is necessary or expedient in fact.’

Lord Reid, Viscount Radcliffe, Lord Devlin
[1964] AC 763, [1962] UKHL 2
Bailii
Official Secrets Act 1911
England and Wales
Cited by:
Cited – Marchiori v The Environment Agency CA 25-Jan-2002
The applicant appealed a refusal to order judicial review of the grant of licences for the discharge of radio-active waste from Ministry of Defence installations. The respondent treated the de-commissioning of nuclear warheads and the maintenance of . .
Cited – Regina v Montila and Others HL 25-Nov-2004
The defendants faced charges under the two Acts. They raised as a preliminary issue whether it is necessary for the Crown to prove that the property being converted was in fact the proceeds, in the case of the 1994 Act, of drug trafficking and, in . .
Cited – Wang, Regina v HL 10-Feb-2005
The appellant was waiting for a train when his bag was stolen. After a search, the thief tried to deter the appellant from calling the police by suggesting that the bag contained items the appellant should not be carrying. From the bag the appellant . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.183275

Williams v Fawcett: CA 1985

The court was asked as to the requirement of a notice to show cause why a person should not be committed to prison for contempt of court.
Held: The court refused to follow its earlier decisions as to committal procedures where they were the result of a manifest slip or error. Lord Donaldson MR explained the doctrine of stare decisis: ‘If we are bound by these decisions, and we are unless they can be treated as having been reached per incuriam, they represent a very considerable change in the law for which, so far as I can see, there is absolutely no warrant. The change to which I refer is, of course, a requirement that these notices shall be signed by the proper officer. The rule of stare decisis is of the very greatest importance, particularly in an appellate court, such as this, which sits in six or seven divisions simultaneously. But for this rule, the law would not only bifurcate, it would branch off in six or seven different directions.
That of course has been stressed over and over again. It was emphasised in the classic case of Young v Bristol Aeroplane Co Ltd. [1944] K.B. 718 and in Morelle Ltd. v Wakeling [1955] 2 Q.B. 379, which considered Young’s case. But in each of those cases, as I will demonstrate briefly the court retained the power in an exceptional case to depart from its previous decisions. ‘

Lord Donaldson MR
[1986] QB 604, [1985] 1 All ER 787
England and Wales
Cited by:
Applied – Rickards v Rickards CA 1990
The Court of Appeal considered the circumstances in which it could depart from its own earlier decisions under the residual principle. The court refused to follow a previous decision of the same court because, although the relevant House of Lords . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.242935

References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government: SC 6 Oct 2021

Scots Bills were Outwith Parliament’s Competence

The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland purporting to pre-empt the power of the UK parliament to make provisions in the areas affected, and were outwith the powers of the Scottish Parliament insofar as it would modify section 28(7) of the 1998 contrary to section 29(2)(c).

Lord Reed, President, Lord Hodge, , Deputy President, Lord Lloyd-Jones, Lord Sales, Lord Stephens
[2021] UKSC 42, UKSC 2021/0080
Bailii, Bailii Press Summary, Bailii Issues and Facts
Scotland Act 1998 29(2) 33(1)
Scotland
Citing:
Applied – The UK Withdrawal From The European Union (Legal Continuity) (Scotland) SC 13-Dec-2018
The Scottish Parliament passed legislation in anticipation of the UK leaving the EU. The Attorney General referred to the supreme court the question of whether some clauses were outwith the power of the Parliament. The Presiding Officer said that . .
Cited – Salomon v Customs and Excise Commissioners CA 1966
Diplock LJ said: ‘The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – The UK Withdrawal From The European Union (Legal Continuity) (Scotland) SC 13-Dec-2018
The Scottish Parliament passed legislation in anticipation of the UK leaving the EU. The Attorney General referred to the supreme court the question of whether some clauses were outwith the power of the Parliament. The Presiding Officer said that . .
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 – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – A v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
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 – Henderson v HM Advocate HCJ 7-Sep-2010
A general provision creating a new order for lifelong restriction was read as not extending to certain convictions under the Firearms Act 1968, since the sentences applicable to such convictions fell outside the legislative competence of the . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 09 November 2021; Ref: scu.668366

Total Network Sl v Revenue and Customs: HL 12 Mar 2008

The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations contained the entire regime.
Held: Criminal conduct at common law or by statute can constitute unlawful means in an unlawful means conspiracy. The protection of the Bill of Rights is available to everyone. Fraudsters and cheats are as much entitled to be protected against the levying of taxes without the authority of Parliament as anyone else. The function of an action of damages is to provide a remedy for interests that are recognised by the law as entitled to protection
‘The statute makes no provision for the recovery of VAT from someone who is not a taxable person within the meaning of section 3. There is, it may be said, a gap in the statute. But this does not mean that the Commissioners have suffered a loss for which they can sue in damages. All that can be said is that payment was made to Alldech which ought not to have been made. It is an amount that can be recovered as a debt due to the Crown from Alldech. It does not change its character as a debt due to the Crown because, when it is sought to be recovered from someone else, it is described as damages. ‘
Lord Scott said: ‘there is, in my opinion, nothing whatever in the Bill of Rights point. It is true that Total are not taxable under the statutory VAT scheme in respect of any of the pleaded transactions, but the claim against Total is not a claim for tax. It is a claim for damages, for loss, caused by the fraudulent conspiracy.’

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury
[2008] UKHL 19, [2008] BPIR 699, [2008] 2 WLR 711, [2008] STI 938, [2008] 1 AC 1174, [2008] STC 644, [2008] BVC 340, [2008] BTC 5216
Bailii, HL
Value Added Tax Act 1994 1(1) 7, Bill of Rights 1688 4
England and Wales
Citing:
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Gosling v Veley 1850
Wilde CJ said: ‘The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate, or toll, except under clear and distinct legal authority, established by those who . .
Cited – Attorney-General v Wilts United Dairies Ltd CA 1921
The Food Controller had been given power under the Defence of the Realm Acts to regulate milk sales. In granting the dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller required the Dairy to pay 2d. per imperial . .
Cited – Attorney-General v Wilts United Dairies Ltd HL 1922
The House heard an appeal by the Attorney-General against a finding that an imposition of duty on milk sales was unlawful.
Held: The appeal failed. The levy was unlawful. Lord Buckmaster said: ‘Neither of those two enactments enabled the Food . .
Cited – Inland Revenue Commissioners v Hambrook 1956
The Revenue claimed for loss resulting from its being deprived of the services of a taxing officer due to a vehicle accident.
Held: The action was dismissed. An action for that kind of loss did not lie where its relationship was with an . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) CA 6-Mar-1981
Lonrho had supplied oil to Southern Rhodesia. It gave up this profitable business when the UK imposed sanctions on that country. It claimed that Shell had conspired unlawfully to break the sanctions, thereby prolonging the illegal regime in Southern . .
Cited – Marrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
Cited – Crofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
Cited – Crofter Hand Woven Harris Tweed Co Ltd v Veitch SCS 1940
Lord Justice Clerk Aitchison said: ‘When the end of a combination is not a crime or a tort in the accepted sense, and the means are not in the accepted sense criminal or tortious – cases which give rise to no difficulty – the question always is – . .
Cited – Allen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
Cited – Sorrell v Smith HL 1925
Torts of Conspiracy by Unlawful Means
The plaintiff had struck the first blow in a commercial battle between the parties, and the defendant then defended himself, whereupon the plaintiff sued him.
Lord Cave quoted the French saying: ‘cet animal est tres mechant; quand on . .
Cited – Hargreaves v Bretherton 1959
The Plaintiff pleaded that the First Defendant police officer had falsely and maliciously and without justification or excuse committed perjury at the Plaintiff’s trial on charges of criminal offences and that as a result the Plaintiff had been . .
Cited – Quinn v Leathem HL 5-Aug-1901
Unlawful Means Conspiracy has two forms
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Snook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
Cited – Optigen Ltd, Fulcrum Electronics Ltd, Bond House Systems Ltd v Commissioners of Customs and Excise ECJ 12-Jan-2006
ECJ Sixth VAT Directive – Article 2(1), Article 4(1) and (2) and Article 5(1) – Deduction of input tax – Economic activity – Taxable person acting as such – Supply of goods – Transaction forming part of a chain . .
Cited – Mogul Steamship Company Limited v McGregor Gow and Co QBD 10-Aug-1885
Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. The plaintiffs complained about being kept out of the conference of shipowners trading between China and London.
Cited – Yukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Regina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
Cited – Cutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
Cited – Rookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
Cited – Daily Mirror Newspapers Ltd v Gardner CA 1968
The Federation of Retail Newsagents decided to boycott the Daily Mirror for a week to persuade its publishers to pay higher margins, and advised them accordingly. The publishers sought an injunction saying the Federation was procuring a breach of . .
Doubted – Michaels and Michaels v Taylor Woodrow Developments Ltd, etc ChD 19-Apr-2000
The respondents sought to strike out the claim for conspiracy and failure to comply with the Act. The respondent was landlord of premises occupied by the claimants. They had served a notice under the Act of their intention to sell.
Held: The . .
Cited – Surzur Overseas Ltd v Koros and others CA 25-Feb-1999
A defendant to a worldwide Mareva injunction had failed to give full disclosure of all his assets in an affidavit filed with the court. False evidence as to sale of the assets in question was later manufactured and placed before the court. The . .
Cited – Inland Revenue Commissioners v Goldblatt 1972
In a winding up case, the Commissioners can if necessary proceed against a receiver for misfeasance. . .
Cited – Ex parte Island Records CA 1978
An injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act. . .
Cited – RCA Corporation v Pollard CA 1982
The illegal activities of bootleggers who had made unauthorised recordings of concerts, diminished the profitability of contracts granting to the plaintiffs the exclusive right to exploit recordings by Elvis Presley.
Held: The defendant’s . .
Cited – W T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
Cited – Oren, Tiny Love Limited v Red Box Toy Factory Limited, Red Box Toy (UK) Limited, Index Limited, Martin Yaffe International Limited, Argos Distributors Limited PatC 1-Feb-1999
One plaintiff was the exclusive licensee of a registered design. The defendant sold articles alleged to infringe the design right. The registered owner had a statutory right to sue for infringement. But the question was whether the licensee could . .
Cited – Regina v Mavji CACD 1987
The court considered the offence of cheating the public revenue.
Held: Cheating might include any form of fraudulent conduct which resulted in diverting money from the revenue and depriving the revenue of money to which it was entitled. . .
Cited – Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
Cited – Rex v Bainbridge 1782
. .
Cited – Regina v Hudson 1956
To avoid the payment of tax by positive false representations constitutes a fraud on the Crown and a fraud on the public. It is a common law offence and is indictable as such. . .
Cited – Woolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
Cited – Deutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
Cited – Commissioners of Customs and Excise, Attorney General v Federation of Technological Industries and Others ECJ 11-May-2006
ECJ (Taxation) C-197/03 Sixth VAT Directive – Articles 21(3) and 22(8) – National measures to combat fraud – Joint and several liability for the payment of VAT – Provision of security for VAT payable by another . .
Cited – Henderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
Cited – Marcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – Shiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
Cited – MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .

Cited by:
Cited – Child Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
Cited – Digicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 15-Apr-2010
The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
Cited – Mobilx Ltd and Others v HM Revenue and Customs; Blue Sphere Global Ltd v Same and similar CA 12-May-2010
Each company sought repayment of input VAT. HMRC refused, saying that the transactions were the end-product of a fraud on it, and that even if the taxpayer did not know that a fraud was involved, it should have been aware that one was and acted . .
Cited – The Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
Applied – The Racing Partnership Ltd and Others v Done Brothers (Cash Betting) Ltd and Others ChD 8-May-2019
Actions concerning the alleged infringement of the claimants’ rights in respect of data relating to horseracing. The claimant had provided horse race betting odds (Betting shows) to race course owners. A rival company had provided similar data to . .
Cited – The Racing Partnership Ltd and Others v Sports Information Services Ltd CA 9-Oct-2020
The court looked at the limitations: (1) the legal protection of sports data and other information which is not subject to traditional intellectual property rights; (2) the scope of an action under the equitable doctrine of breach of confidence or . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .

Lists of cited by and citing cases may be incomplete.

VAT, Torts – Other, Customs and Excise, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.266167

Regina v Secretary of State for the Home Department ex parte Fire Brigades Union: HL 5 Apr 1995

Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The claimants, whose members would have recourse to the scheme, sought an order that the Act should be implemented, or the non-statutory scheme declared unlawful.
Held: There was no power in the courts to compel the minister to bring the Act into effect, but his alternate scheme was unlawful. While the Secretary of State is under no legally enforceable duty to bring the main provisions of the Act into force, he must consider when it is appropriate for him to do so and does not enjoy an absolute and unfettered discretion not to do so.
The doctrine of legitimate expectation cannot reasonably be extended to the public at large as opposed to particular individuals or bodies who are directly affected by the executive action under consideration.
A ministers’ intentions are not law, and the courts cannot proceed on the assumption that they will necessarily become law. That is a matter for Parliament to decide in due course.
Lord Lloyd said that the ordinary function of the court was to grant discretionary relief if a minister exceeded the powers conferred on him by Parliament and: ‘In granting such relief the court is not acting in opposition to the legislature, or treading on Parliamentary toes. On the contrary: it is ensuring that the powers conferred by Parliament are exercised within the limits, and for the purposes, which Parliament intended. I am unable to see the difference in this connection between a power to bring legislation into force and any other power.’
Lord Browne-said: ‘In my judgment it would be most undesirable that, in such circumstances, the court should intervene in the legislative process by requiring an Act of Parliament to be brought into effect. That would be for the courts to tread dangerously close to the area over which Parliament enjoys exclusive jurisdiction, namely the making of legislation.’ and ‘There is a second consequence of the power in section 171(1) being conferred for the purpose of bringing the sections into force. As I have said, in my view the Secretary of State is entitled to decide not to bring the sections into force if events subsequently occur which render it undesirable to do so. But if the power is conferred on the Secretary of State with a view to bringing sections into force, in my judgment the Secretary of State cannot himself procure events to take place and rely on the occurrence of those events as the ground for not bringing the statutory scheme into force. In claiming that the introduction of the new tariff scheme renders it undesirable now to bring the statutory scheme into force, the Secretary of State is, in effect, claiming that the purpose of the statutory power has been frustrated by his own act in choosing to introduce a scheme inconsistent with the statutory scheme approved by Parliament.’
Lord Browne-Wilkinson set out the ‘inconsistency principle’, saying: ‘It would be most surprising if, in the present day, prerogative powers could be validly exercised by the Executive so as to frustrate the will of Parliament expressed in the statute and, to an extent to pre-empt the decision of Parliament whether or not to continue with the statutory scheme even though the old scheme has been abandoned. It is not for the Executive to state as it did in the White Paper that the provisions in the Act of 1988 ‘will accordingly be repealed when a suitable legislative opportunity occurs’. It is for Parliament not the Executive to repeal legislation. The constitutional history of this country is a history of the prerogative powers of the Crown being made subject to the overriding powers of the democratically elected legislature of the sovereign body. The prerogative powers of the court remain in existence to the extent that Parliament has not expressly or by implication extinguished them.’

Lord Mustill, Lord Lloyd, Lord Browne-Wilkinson
[1995] UKHL 3, [1995] 2 AC 513, [1995] 2 All ER 244, [1995] 2 WLR 464
Bailii
Criminal Justice Act 1988 171(1)
England and Wales
Citing:
At First Instance – Regina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others QBD 24-May-1994
The Home Secretary was under no duty to bring the new statutory CICB scheme into force on any particular date. He was free to continue to use his own. The court refused to order a judicial review. . .
Appeal from – Regina v Secretary of State for Home Department Ex Parte Fire Brigades Union and Others CA 10-Nov-1994
The Home Secretary’s non-statutory scheme for the compensation for criminal injuries was unlawful pending implementation of the Act. It amounted to an abuse of power. He had power to delay implementing the new Act, with no duty to bring it into . .
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 by:
Cited – BAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another HL 30-Apr-2008
The House considered whether the Secretary of State for Health acted lawfully in issuing guidance as to the employment of foreign doctors to employing bodies within the National Health Service in April 2006.
Held: The secretary of state’s . .
Cited – Regina v Secretary of State for Wales Ex Parte Emery CA 9-Jul-1997
The applicant had sought to have included in the definitive map, a local footpath, and now challenged refusal to include it.
Held: A public right of way may be created by dedication or it may be deemed after actual use by the public over . .
Cited – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created 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 – 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.

Personal Injury, Constitutional, Judicial Review

Leading Case

Updated: 09 November 2021; Ref: scu.241351

West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation: HL 1970

The mere fact that an enactment shows that Parliament must have thought that the law was one thing, does not preclude the courts from deciding that the law was in fact something different. The position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. The date of entry into land under a compulsory purchase is what fixes the date for the assessment of compensation. No question regarding interest arose because ‘the claimants had been allowed to remain in possession on the terms that they claimed no interest on the compensation and paid no rent.’ The House considered the possibility of prospective rulings, rulings which would take effect only as to the future.
Lord Morris of Borth-y-Gest said: ‘The word ‘compensation’ would be a mockery if what was paid was something that did not compensate.’
Lord Reid said: ‘We cannot say that the law was one thing yesterday but is to be something different tomorrow. If we decide that [the existing rule] is wrong we must decide that it always has been wrong, and that would mean that in many completed transactions owners have received too little compensation. But that often happens when an existing decision is reversed.’
and ‘These provisions do show that Parliament (or the draftsman) must have thought that the law was that compensation was assessable on the basis of value as at the date of notice to treat. But the mere fact that an enactment shows that Parliament must have thought that the law was one thing does not preclude the courts from deciding that the law was in fact something different. This has been stated in a number of cases including Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd [1952] AC 401. No doubt the position would be different if the provisions of the enactment were such that they would only be workable if the law was as Parliament supposed it to be. But, in my view, all that can be said here is that these enactments would have a narrower scope if the law was found to be that compensation must be assessed at a date later than that of the notice to treat.’

Reid L, Lord Donovan, Lord Morris of Borth-Y-Gest, Lord Upjohn, Lord Wilbeforce
[1970] AC 874, [1969] 3 All ER 172
Compulsory Purchase Act 1965 11(1)
England and Wales
Citing:
Cited – Inland Revenue Commissioners v Dowdall, O’Mahoney and Co Ltd HL 1952
A court is not prevented from interpreting the common law by an Act of parliament being based upon a different view. . .

Cited by:
Cited – Johnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
Cited – BP Oil UK Ltd v Kent County Council CA 13-Jun-2003
BP sought compensation after its land had been acquired compulsorily. The council said its claim was time barred. BP appealed from the Lands Tribunal, saying an agreement with the Authority had kept its claim alive.
Held: The fact of entry did . .
Cited – Halstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Land, Damages

Leading Case

Updated: 09 November 2021; Ref: scu.182109

Regina v Secretary of State for the Home Department ex parte Cheblak: CA 1991

Because of the importance placed on the swift and efficient determination of lawfulness of the restraint, habeas corpus applications are given priority in the organisation of the business of the court.
In order to be permitted to present a judicial review application the applicant must raise an arguable case on each of the grounds on which he seeks to challenge the impugned decision.
Lord Donaldson MR explained the difference between habeas corpus and judicial review: ‘Although, as I have said, the 2 forms of relief which the applicant seeks are interrelated on the facts of his case, they are essentially different. A writ of habeas corpus will issue where someone is detained without any authority or the purported authority is beyond the powers of the person authorising the detention and so is unlawful. The remedy of judicial review is available where the decision or action sought to be impugned is within the powers of the person taking it but, due to procedural error, a misappreciation of the law, a failure to take account of relevant matters, a taking account of irrelevant matters or the fundamental unreasonableness of the decision or action, it should never have been taken. In such a case the decision or action is lawful, unless and until it is set aside by a court of competent jurisdiction. In the case of detention, if the warrant, or the underlying decision to deport, were set aside but the detention continued, a writ of habeas corpus would issue.’
. . And: ‘the exercise of the jurisdiction of the courts in cases involving national security is necessarily restricted, not by any unwillingness to act in protection of the rights of individuals or any lack of independence of the executive, but by the nature or the subject matter. National security is the exclusive responsibility of the executive.’

Lord Donaldson MR
[1991] 1 WLR 890
England and Wales
Cited by:
Cited – TF, Regina (on the Application of) v Secretary of State for Justice CA 18-Dec-2008
The claimant had been near to completing a sentence for serious violence. He now challenged the way in which, as his sentenced approached completion, the defendant had sought an order transferring him to a secure mental hospital. He was served with . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Judicial Review, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.279144

Sir Francis Burdett, Bart v The Right Hon Charles Abbot: KBD 1811

Speaker’s Powers to Arrest House Members

To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking him to the Tower of London, and imprisoning him there; it is a legal justification and bar to plead that a Parliament was held, which was sitting during the period of the trespasses complained of; that the plaintiff was a member of the House of Commons; and that the House having resolved ‘that a certain letter, and e. in Cobbett’s Weekly Register, was a libellous and scandalous paper, reflecting on the just rights and privileges of the House, and that the plaintiff, who had admitted that the said letter, and co. was printed by his authority, had been thereby guilty of a breach of the privileges of that House ;’ and having ordered that for his said offence he should be committed to the Tower, and that the Speaker should issue his warrant accordingly ; the defendant, as Speaker, in execution of the said order, issued his warrant to the serjeant at arms, to whom the execution of such warrant belonged, to arrest the plaintiff and commit him to the custody of the lieutenant of the Tower; and issued another warrant to the lieutenant of the Tower to receive and detain the plaintiff in custody during the pleasure of the House ; by virtue of which first warrant the serjeant at arms went to the messuage of the plaintiff, where he then was, to execute it ; and because the outer door was fastened, and he could not enter, after audible notification of his purpose, and demand made of admission, he, by the assistance of the said soldiers, broke and entered the plaintiff’s messuage, and arrested and conveyed him to the Tower, where he was received and detained in custody under the other warrant, by the lieutenant of the Tower.

(1811) 14 East 1, [1811] EngR 83, (1811) 104 ER 501
Commonlii
England and Wales
Cited by:
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 . .
Appeal from – Burdett, Bart v The Right Honourable Charles Abbot CA 22-Apr-1812
. .
At Kings Bench – Burdett (Bart) v Abbot (Speaker, House of Commons); And Burdett (Bart) Colman (Sergeant At Arms) PC 2-Jul-1817
To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him . .
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 – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.199235

Kadi v Council and Commission (Common Foreign and Security Policy): ECJ 16 Jan 2008

ECJ Common foreign and security policy (CFSP) – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – United Nations Security Council Resolutions adopted under Chapter VII of the Charter of the United Nations Implementation in the Community Common Position 2002/402/CFSP Regulation (EC) No 881/2002 ‘ – Measures against persons and entities included in a list drawn up by a body of the United Nations Freezing of funds and economic resources – Committee of the Security Council created by paragraph 6 of Resolution 1267 (1999) of the Security Council (Sanctions Committee) Inclusion of those persons and entities in Annex I to Regulation (EC) No 881/2002 Actions for annulment Competence of the Community Joint legal basis of Articles 60 EC, 301 EC and 308 EC – Fundamental rights Right to respect for property, right to be heard and right to effective judicial review.
The Court considered the relationship between a European sanctions measure and the obligations imposed on member states under the United Nations Charter and general international law to give effect to UN Security Council asset freezing orders under Chapter VII of the UN Charter.
Held: ‘What is more, such immunity from jurisdiction for a Community measure like the contested regulation, as a corollary of the principle of the primacy at the level of international law of obligations under the Charter of the United Nations, especially those relating to the implementation of resolutions of the Security Council adopted under Chapter VII of the Charter, cannot find a basis in the EC Treaty.
Admittedly, the court has previously recognised that article 234 of the EC Treaty (now, after amendment, article 307EC) could, if the conditions for application have been satisfied, allow derogations even from primary law, for example from article 113 of the EC Treaty on the common commercial policy: see, to that effect, the Centro-Com case [1997] QB 683, paras 56-61).
It is true also that article 297EC implicitly permits obstacles to the operation of the common market when they are caused by measures taken by a member state to carry out the international obligations it has accepted for the purpose of maintaining international peace and security.
Those provisions cannot, however, be understood to authorise any derogation from the principles of liberty, democracy and respect for human rights and fundamental freedoms enshrined in article 6(1) EU as a foundation of the Union.
Article 307EC may in no circumstances permit any challenge to the principles that form part of the very foundations of the Community legal order, one of which is the protection of fundamental rights, including the review by the Community judicature of the lawfulness of Community measures as regards their consistency with those fundamental rights.’

C-402/05, [2008] EUECJ C-402/05, [2009] Lloyds Rep FC 9, [2008] ECR I-6351, [2008] 3 CMLR 41, [2009] AC 1225, [2009] 3 WLR 872
Bailii
Council Regulation 881/2002
European
Citing:
See Also – Kadi v Council and Commission ECFI 21-Sep-2005
ECJ (Common Foreign and Security Policy) Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – . .

Cited by:
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 – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
Cited – Home Office v Tariq SC 13-Jul-2011
(JUSTICE intervening) The claimant pursued Employment Tribunal proceedings against the Immigration Service when his security clearance was withdrawn. The Tribunal allowed the respondent to use a closed material procedure under which it was provided . .
Cited – EM (Eritrea), Regina (on The Application of) v Secretary of State for The Home Department SC 19-Feb-2014
SSHD must examine safety of country for return
The Court was asked: ‘Is an asylum seeker or refugee who resists his or her return from the United Kingdom to Italy (the country in which she or he first sought or was granted asylum) required to establish that there are in Italy ‘systemic . .
Cited – British American Tobacco Denmark A/S v Kazemier Bv SC 28-Oct-2015
One container loaded with cigarettes was allegedly hi-jacked in Belgium en route between Switzerland and The Netherlands in September 2011, while another allegedly lost 756 of its original 1386 cartons while parked overnight contrary to express . .
See Also – Kadi v Council and Commission ECJ 3-Sep-2008
(Common foreign and security policy) Grand Chamber – Common foreign and security policy (CFSP) Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban United Nations Security . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional, Human Rights, International

Leading Case

Updated: 09 November 2021; Ref: scu.263962

McEldowney v Forde: HL 18 Jun 1969

The House was asked whether the Magistrates had properly dismissed a charge of membership of an unlawful organisation, namely a Republican club. The Magistrates had found that an unlawful club would only be such if it supported the absorption of Northern Ireland into the Irish Republic. The Regulations were challanged as ultra vires to the Act.
Held: The Regulation was not ultra vires (majority). In the regulation in question the expediency was stated in the Regulation and in the absence of any charge of bad faith, expediency was presumed provided that the exercise of the power was capable of being related to the specified purposes.

Lord Hodson, Lord Guest, Lord Pearce, Lord Pearson, Lord Diplock
[1969] UKHL 6, [1971] 1 AC 632, [1970] NI 11, [1969] 2 All ER 1039
Bailii
Civil Authorities (Special Powers) Act (Northern Ireland) 1922 1, Criminal Law and Procedure (Ireland) Act 1887
Northern Ireland
Citing:
Cited – The Attorney General of Canada v Hallet and Carey Limited and Another PC 20-May-1952
Canada – By section 2(l)(c) of the National Emergency Transitional Powers Act 1945 the governor in Council was authorised to do such things and to make such orders and regulations as he might, by reason of the continued emergency arising out of the . .
Cited – Rex (at the prosecution of Arthur Zadig) v Halliday HL 1-May-1917
The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Minister of Health v The King ex parte Yaffe 1931
Lord Thankerton said: ‘In this case, as in similar cases that have come before the Courts, Parliament has delegated its legislative function to a Minister of the Crown, but in this case Parliament has retained no specific control over the exercise . .
Cited – Carltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .

Lists of cited by and citing cases may be incomplete.

Northern Ireland, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.248581

Anisminic Ltd v Foreign Compensation Commission: HL 17 Dec 1968

There are no degrees of nullity

The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a nullity. The Commission replied that the courts were precluded from considering the question by section 4(4) of the 1950 Act which provided: ‘The determination by the Commission of any application made to them under this Act shall not be called in question in any court of law.’ The respondent said these were plain words with one meaning: ‘Here is a determination which is apparently valid: there is nothing on the face of the document to case any doubt on its validity. If it is a nullity, that could only be established by raising some kind of proceedings in court. But that would be calling the determination in question, and that is expressly prohibited by the statute.’
Held: This was rejected. All forms of public law challenge to a decision have the same effect, to render it a nullity. The decision of the Commission was wrong in law, and therefore a nullity, rather than a ‘determination’ within the protection of the ouster clause. The House made obsolete the historic distinction between errors of law on the face of the record and other errors of law.
Lord Reid considered that the term ‘jurisdiction’ had both a wide and a narrow sense: ‘I have come to the conclusion that it is better not to use the term except in the narrow and original sense of the tribunal being entitled to enter on the inquiry in question. But there are many cases where, although the tribunal had jurisdiction to enter on the inquiry, it has done or failed to do something in the course of the inquiry which is of such a nature that its decision is a nullity.’ He mentioned a variety of errors, including addressing the wrong question. ‘But, if [the tribunal] decides a question remitted to it for decision without committing any of these errors it is as much entitled to decide that question wrongly as it is to decide it rightly.’
A statutory provision, which provided that any ‘determination by the commission’ in question ‘shall not be called in question in any court of law’, did not prevent the court from deciding whether a purported decision of the commission was a nullity, on the ground that the commission had misconstrued a provision defining their jurisdiction.
‘In the present case the commission could be controlled if being ‘satisfied’ of the matters referred to ‘them’ they failed to obey the mandatory direction of the Order in Council. But in deciding whether or not they were satisfied of the matters they were working within the confines of their denoted delegated and remitted jurisdiction. In the exercise of it very many questions of construction were inevitably bound to arise. At no time was the commission more centrally within their jurisdiction than when they were grappling with those problems. If anyone could assert that in reaching honest conclusions in regard to the questions of construction they made any error, such error would, in my view, be an error while acting within their jurisdiction and while acting in the discharge of their function within it.’

Lord Reid, Lord Pearce, Lord Wilberforce
[1969] 2 AC 147, [1968] UKHL 6, [1969] 1 All ER 208, [1969] 2 WLR 163
Bailii
Foreign Compensation Act 1950 4(4), The Foreign Compensation (Egypt) (Determination and Registration of Claims) Order 1959
England and Wales
Citing:
Unsatisfactory – Smith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
Cited – Davies v Price CA 1958
Parker LJ said that even if the Agricultural Land Tribunal had misconstrued a statute that did not mean that they had exceeded their jurisdiction: ‘they clearly had jurisdiction to decide whether to give or withhold consent, and if they misconstrued . .
Cited – Rex v Nat Bell Liquors Ltd PC 7-Apr-1922
(Alberta) Lord Sumner said: ‘Long before Jervis’s Acts statutes had been passed which created an inferior court, and declared its decisions to be ‘final’ and ‘without appeal’, and again and again the Court of the King’s Bench had held that the . .
Cited – Rex v Northumberland Compensation Appeal Tribunal, ex Parte Shaw CA 19-Dec-1951
A tribunal had wrongly calculated his ‘service’ when assessing the applicant’s compensation for loss of office as clerk to the Hospital Board. There was no right of appeal against its decisions. The Attorney General had argued that certiorari would . .
Cited – Davies v Price CA 1958
Parker LJ said that even if the Agricultural Land Tribunal had misconstrued a statute that did not mean that they had exceeded their jurisdiction: ‘they clearly had jurisdiction to decide whether to give or withhold consent, and if they misconstrued . .
Cited – The Queen v The Board Of Works For The District of St Olave’s, Southwark 18-Nov-1857
Certiorari availablity for Error of Law
A party said he had been an officer of certain Commissioners, whose functions by statute came to an end, and was entitled to compensation. He applied for it to the district board. They rejected his claim. He appealed to the Metropolitan Board of . .
Cited – Sir Henry Edward Bunbury, Bart v Philip Fuller 25-Jun-1853
A section of an Act of Parliament imposed a restraint on the jurisdiction of tithe commissioners in the case of lands in respect of which the tithes had already been perpetually commuted or statutorily extinguished. The tithe commissioners had, . .
Cited – Ex parte Bradlaugh QBD 1878
A section in an Act of Parliament read: ‘and if . . the magistrate or justices shall be satisfied that such articles, or any of them, are of the character stated in the warrant and that such or any of them have been kept for any of the purposes . .
Cited – Regina v Commissioners for the Special Purposes of the Income Tax CA 27-Jun-1888
Lord Esher MR pointed out that while it is generally correct to say that a tribunal cannot give itself jurisdiction by a wrong decision on the facts there may be cases in which the legislature endows a tribunal with jurisdiction, provided that a . .
Cited – Rex v Shoreditch Assessment Committee, Ex parte Morgan CA 6-Jul-1910
(At KBD and CA) A ratepayer claimed that the value of his hereditament had been reduced in value. Pursuant to section 47 of the Valuation (Metropolis) Act, 1869, he addressed a written requisition to the overseers. The section provided that: ‘If in . .
Cited – Rex v Cheshire Justices, Ex parte Heaver Bros Ltd 1912
The compensation authority, after the renewal of a licence of a public-house had been refused, had to decide how compensation was to be divided amongst the persons interested in the licensed premises. The lessees of the premises had been held (by . .
Cited – The Board of Trustees of The Maradana Mosque v The Honourable Badi-Ud-Din Mahmud and Another PC 19-Jan-1966
(Ceylon) the rules of natural justice had been violated.
Where statutory authority was given to a Minister to act if he was satisfied that a school is being administered in a certain way he was not given authority to act because he was . .
Cited – Campbell v Brown HL 1829
Although by the statute 43 Geo. III, c. 54, s. 21, the judgment of the Presbytery is declared to be final without appeal or review by the court, civil or ecclesiastical, yet if the proceedings upon which judgment was pronounced were contrary to law . .
Cited – Regina v His Honour Judge Sir Donald Hurst, ex parte Smith QBD 1960
The County Court Judge had directed the removal from the electoral register the names of a number of persons who were not party to the proceedings before him. Motions were brought in the Divisional Court for an order of certiorari to quash his . .
Cited – Mersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
Cited – Estate and Trust Agencies (1927) Limited v The Singapore Improvement Trust PC 31-May-1937
(Singapore) Where a tribunal exercising an exclusive jurisdiction is said to have made an error as to that jurisdiction, applying `a wrong and inadmissible test’, the decision whether the decision was made in error, is one for a court. . .
Cited – Seereelall Jhuggroo v The Central Arbitration and Control Board and Another PC 6-Oct-1952
(Mauritius) . .
Cited – Regina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .

Cited by:
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Cited – Mathialagan, Regina (on the Application of) v London Borough of Southwark and Another CA 13-Dec-2004
Liability Orders were made against the appellant in respect of non-domestic rates in respect of two properties. The orders were made in the absence of the appellant or any representative. Application for judicial review was made to re-open the . .
Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Cited – Ahsan v Carter CA 28-Jul-2005
The claimant sought to assert race discrimination by the Labour Party in not selecting him as a political candidate. The defendant, chairman of the party appealed.
Held: A political party when selecting candidates was not acting as a . .
Cited – Farley v Child Support Agency and Another; Farley v Secretary of State for Work and Pensions (No. 2) HL 28-Jun-2006
Magistrates were wrong to think they had a discretion to look at the validity of a liability assessment under child support legislation. The Act gave the payer alternative avenues of appeal, and therefore the Act should be read as it stated and the . .
Cited – A, Regina (on The Application of) v B; Regina (A) v Director of Establishments of the Security Service SC 9-Dec-2009
B, a former senior member of the security services wished to publish his memoirs. He was under contractual and statutory obligations of confidentiality. He sought judicial review of a decision not to allow him to publish parts of the book, saying it . .
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 – Pearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
Cited – Cart, Regina (on The Application of) v The Upper Tribunal and Others CA 23-Jul-2010
The claimant had sought and been refused judicial review of a decision of the SIAC Upper Tribunal. The Upper Tribunals were designated as courts of superior record, and the court at first instance had said that SIACs specialist procedures and . .
Cited – Cart v The Upper Tribunal SC 21-Jun-2011
Limitations to Judicial Reviw of Upper Tribunal
Three claimants sought to challenge decisions of various Upper Tribunals by way of judicial review. In each case the request for judicial review had been first refused on the basis that having been explicitly designated as higher courts, the proper . .
Cited – EBA, Re Judicial Review SCS 31-Mar-2010
The petitioner claimed disability living allowance. Her claim was refused, and eventually also at the Upper Tribunal, of whose decision she now sought judicial review.
Held: The Upper Tribunal being designated as a court of superior record. . .
Cited – EBA v The Advocate General for Scotland SCS 10-Sep-2010
(Inner House) The petitioner wished to appeal against refusal of disability living allowance. Her appeal to the first tier tribunal was rejected, and her request to the Upper Tribunal for leave to appeal was refused. When, she then sought leave to . .
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 – Regina v The Secretary of State for the Environment, ex Parte Ostler CA 16-Mar-1976
Statutory Challenge must be timely
The applicant had not taken objection to a proposed road scheme believing wrongly that it would not affect his business. Other objectors had withdrawn because of secret re-assurances given to them by the respondent.
Held: The court was asked, . .
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 – 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 – In re Racal Communications Ltd; In Re a Company HL 3-Jul-1980
Court of Appeal’s powers limited to those Given
The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over . .
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .
Cited – Majera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Administrative

Leading Case

Updated: 09 November 2021; Ref: scu.187058

In re Racal Communications Ltd; In Re a Company: HL 3 Jul 1980

Court of Appeal’s powers limited to those Given

The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review: ‘There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealable, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.’
Lord Diplock said: ‘The break-through made by Anisminic . . was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.’ But there was: ‘no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic . . ; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide.’

Lord Diplock, Lord Salmon, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Scarman
[1981] AC 374, [1980] UKHL 5, [1980] 2 All ER 634, [1980] 3 WLR 181
Bailii
Supreme Court Act 1981 15, Companies Act 1948 441
England and Wales
Citing:
Cited – Regina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Majority Overruled – Pearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
Cited – Deighton v Cockle CA 2-Dec-1911
Where, an order haying been obtained for judgment under Order xiv., judgment is not signed until more than twelve months afterwards, the case does not come within Order lxiv., r. 13, and therefore it is not necessary that the notice of intention to . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Cited by:
Cited – Kemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Applied – Westminster City Council v O’Reilly and others CA 1-Jul-2003
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the . .
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Cited – Sinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
Cited – Regina v Manchester Crown Court ex parte Williams and Simpson 1990
If an application to prefer a Voluntary Bill is successful there is no right of appeal, and nor can the decision be made subject to judicial review. . .
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 – 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 – Regina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.182917

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 House and which was afterwards, by orders of the House, printed and published by defendant; and that the House of Commons heretofore resolved, declared, and adjudged ‘that the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the constitutional functions of parliament, more especially to the Commons’ House of Parliament as the representative portion of it.’
On demurrer to a plea suggesting such a defence, a court of law is competent to determine whether or not the House of Commons has such privilege as will support the plea.
Lord Denman CJ said: ‘Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those of arbitrary power for which they deprived King James of his Crown.’ and ‘Where the subject matter falls within their jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it.’

Lord Denman CJ
(1839) 9 Ad and El 1, [1839] EWHC QB J21, 112 ER 1112, (1839) 9 Ad and Ell 96
Bailii
England and Wales
Citing:
appeal from – Stockdale v Hansard And Others 7-Feb-1837
The order of the House of Commons for the publication and sale by certain booksellers of Reports laid before the House, does not exempt the booksellers from answering in an action of libel any individual injured by defamatory matters in such Reports . .
appeal from – Stockdale v Hansard And Others 7-Feb-1837
The House of Commons, in the years 1836 and 1836, made resolutions that parliamentary papers and reports, printed for the use of the house, should be publicly sold by their printer ; and afterwards a report from the Inspectors of Prisons was ordered . .
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 by:
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 – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Defamation

Leading Case

Updated: 09 November 2021; Ref: scu.199236

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 Privilege and that a civil court had no jurisdiction to try them.
Held: The claims to privilege failed. Saunders J said: ‘Although Article 9 of the Bill of Rights 1689 is the best-known example of parliamentary privilege and has enshrined in Statute the privilege of freedom of speech in Parliament, it is part only of a much broader privilege which is found in the common law. Article 9 provides that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.’
However: ‘in the context of criminal charges Parliamentary privilege should be narrowly construed. The principle that all men are equal before the law is an important one and should be observed unless there is good reason why it should not apply. To do otherwise would risk bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system. Parliament does not have an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminal charge’
It was significant that ‘neither House has sought to assert that these proceedings come within the jurisdiction of Parliament. This is of particular significance as the privilege, if it exists, belongs to Parliament and not the individual members.’ and ‘Wherever a line is drawn there may be anomalies. The fact that it is the submission of the claim form that sets the machinery of Parliament in motion does not make it part of that machinery just as putting a coin in a slot machine does not make the coin part of the mechanism of the slot machine just because it initiates the process.’
He continued: ‘The claiming of expenses is an individual activity for the benefit of the individual and any benefit to Parliament as a whole is not a direct one. Further it is not part of a Member’s duty to claim his expenses or allowances. He could not be criticised for failing to carry out his duties as an MP if he did not claim his allowances and his expenses. It would not be an interference with the workings of Parliament or obstruct the carrying out of their business. None of the justifications for the existence of privilege would seem to apply to the submission of the form. In my judgment it does not come within the scope of the ‘exclusive jurisdiction of Parliament’ on any sensible construction of that privilege.’

Saunders J
[2010] EW Misc 9 (EWCC)
Bailii, Judiciary
Bill of Rights 1689 9
England and Wales
Citing:
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – 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 – 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 – McGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – Attorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
Cited – 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 v Greenaway CC 25-Jun-1992
(Central Criminal Court) The defendant Member of Parliament had faced charges of accepting bribes in return for advancing the interests of a commercial company.
Held: The charges were dismissed on the request of the prosecution after a . .

Cited by:
Appeal from – 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 . .
At Crown Court – 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 – 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. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.417821

Regina v Foreign Secretary ex parte Everett: CA 20 Oct 1988

A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear that the powers of the court ‘cannot be ousted merely by invoking the word ‘prerogative’: ‘The majority of their Lordships indicated that whether judicial review of the exercise of a prerogative power is open depends upon the subject matter and in particular whether it is justiciable. At the top of the scale of executive functions under the Prerogative are matters of high policy, of which examples were given by their Lordships; making treaties, making war, dissolving parliament, mobilising the armed forces. Clearly those matters and no doubt a number of others are not justiciable but the grant or refusal of a passport is in a quite different category. It is a matter of administrative decision affecting the right of individuals and their freedom of travel. It raises issues which are just as justiciable as, for example, the issues arising in immigration cases.’
O’Connor LJ said that the grant or withdrawal of a British passport is an exercise of the Royal Prerogative, in the discretion of the Secretary of State.

Taylor LJ, O’Connor LJ
[1989] 1 QB 811, [1988] EWCA Civ 7, [1989] QB 811, [1989] 2 WLR 224
Bailii
England and Wales
Citing:
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 by:
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Regina v Secretary of State for Foreign Affairs ex parte Ferhut Butt Admn 1-Jul-1999
Lightman J said: ‘The general rule is well established that the courts should not interfere in the conduct of foreign relations by the Executive, most particularly where such interference is likely to have foreign policy repercussions . . This . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
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 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 – 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 – Orire-Banjo, Regina (on The Application of) v Secretary of State for The Home Department Admn 21-Dec-2020
Case concerning the rightful owner of an identity. . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.247347

Independent Publishing Company Limited v The Attorney General of Trinidad and Tobago, The Director of Public Prosecutions: PC 8 Jun 2004

PC (Trinidad and Tobago) The newspapers had been accused of contempt of court having reported matters in breach of court orders, and the editors committed to prison after a summary hearing: ‘In deciding whether someone’s section 4 (a) ‘right not to be deprived [of their liberty] except by due process of law’ has been violated, it is the legal system as a whole which must be looked at, not merely one part of it. The fundamental human right, as Lord Diplock said [in Maharaj v Attorney General of Trinidad and Tobago (No. 2) [1979] AC 385], is to ‘a legal system … that is fair’. Where, as in Mr Maharaj’s case, there was no avenue of redress (save only an appeal by special leave direct to the Privy Council) from a manifestly unfair committal to prison, … one can understand why the legal system should be characterised as unfair. Where, however, as in the present case, Mr Ali was able to secure his release on bail within 4 days of his committal – indeed, within only one day of his appeal to the Court of Appeal – their Lordships would hold the legal system as a whole to be a fair one.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2005] 1 AC 190, [2004] 3 WLR 611, [2004] UKPC 26, [2005] 1 All ER 499
PC, Bailii, PC
Constitution of Trinidad and Tobago 14
Commonwealth
Citing:
Cited – Nankissoon Boodram v Attorney-General of Trinidad and Tobago PC 19-Feb-1996
The court considered the effect of prejudicial reporting on a trial: ‘In a case such as this, the publications either will or will not prove to have been so harmful that when the time for the trial arrives the techniques available to the trial judge . .
Cited – Scott v Scott HL 5-May-1913
Presumption in Favour of Open Proceedings
There had been an unauthorised dissemination by the petitioner to third parties of the official shorthand writer’s notes of a nullity suit which had been heard in camera. An application was made for a committal for contempt.
Held: The House . .
Cited – Regina v Socialist Worker Printers and Publishers Ltd, Ex parte Attorney-General CA 1974
In a blackmail case, the court ordered non publication of the names of the complainants. Thinking they were not bound, the defendants published the names.
Held: The publishers and Mr Michael Foot were held to be in contempt of court in . .
Cited – Rex v Clement CEC 1821
After the trial for high treason of those involved in the Cato Street Conspiracy in 1820, Clement, the editor of a newspaper was punished for contempt. There had been a series of trials, but the judge said they had to be treated as one set of . .
Cited – Regina v Poulson and Pottinger CACD 1974
The trial judge said that he did not see how the press could report the evidence in the case without running the risk of being in contempt of other criminal proceedings which had already begun against Poulson and other defendants in respect of . .
Cited – Attorney-General v Leveller Magazine Ltd HL 1-Feb-1979
The appellants were magazines and journalists who published, after committal proceedings, the name of a witness, a member of the security services, who had been referred to as Colonel B during the hearing. An order had been made for his name not to . .
Cited – Regina v Border Television Ltd, Ex parte Attorney-General QBD 18-Jan-1978
The defendant media company was found guilty of contempt for reporting that the defendant had pleaded guilty at the outset of her trial to a number of other charges against her. No warning had been given. . .

Cited by:
Cited – Naidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Cited – Attorney General’s Reference No 3 of 1999: Application By the British Broadcasting Corporation To Set Aside or Vary a Reporting Restriction Order HL 17-Jun-2009
An application was made to discharge an anonymity order made in previous criminal proceedings before the House. The defendant was to be retried for rape under the 2003 Act, after an earlier acquittal. The applicant questioned whether such a order . .
Cited – PNM v Times Newspapers Ltd and Others SC 19-Jul-2017
No anonymity for investigation suspect
The claimant had been investigated on an allegation of historic sexual abuse. He had never been charged, but the investigation had continued with others being convicted in a high profile case. He appealed from refusal of orders restricting . .
Cited – Regina v Croydon Crown Court ex parte Trinity Mirror Plc; In re Trinity Mirror plc CACD 1-Feb-2008
An order had been made protecting the identity of a defendant who pleaded guilty to possessing indecent images of children. The order was made in the interests of his own children, although they had been neither witnesses in the proceedings against . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Media, Contempt of Court

Leading Case

Updated: 02 November 2021; Ref: scu.198072

Taylor v Lawrence: CA 4 Feb 2002

A party sought to re-open a judgment on the Court of Appeal after it had been perfected. A case had been tried before a judge. One party had asked for a different judge to be appointed, after the judge disclosed that he had been a client of the firm of solicitors representing the opposing party, and they later appealed his judgment. The appeal was rejected, but then the party discovered that, contrary to what the judge had said, to the effect that he had not instructed the firm for some time, he had had his will drawn up by the firm in the days before the hearing, and was not to be billed.
Held: It was possible for the court to re-open a case where there was a manifest injustice, and there was no available remedy. If the remedy would be to take the case to the House of Lords, but leave would be refused, the court could also re-open the case. This jurisdiction must be used only with great caution. It is a principle of common law that a final judgment should be just that. Nevertheless, the allegation of bias in the judge was not made out. The test in cases of apparent bias was if, in all the circumstances, a fair-minded and informed observer would see a real possibility that the tribunal was biased. The normal contacts between members of the legal profession should not lead to that suspicion. The informed observer of today can be expected to be aware of the legal traditions and culture of this jurisdiction.
There is a distinction between the question whether a court has jurisdiction and how it exercises the jurisdiction given by statute. A court does not need to be given express power to decide upon the procedure which it wishes to adopt. Such a power is implicit in it being required to determine appeals. Lord Woolf explained the difference between the implied or implicit jurisdiction of the court and the way in which that jurisdiction is exercised: ‘It is very easy to confuse questions as to what is the jurisdiction of a court and how that jurisdiction should be exercised. The residual jurisdiction which we are satisfied is vested in a court of appeal to avoid real injustice in exceptional circumstances is linked to a discretion which enables the court to confine the use of that jurisdiction to the cases in which it is appropriate for it to be exercised. There is a tension between a court having a residual jurisdiction of the type to which we are here referring and the need to have finality in litigation. The ability to reopen proceedings after the ordinary appeal process has been concluded can also create injustice. There therefore needs to be a procedure which will ensure that proceedings will only be reopened when there is a real requirement for this to happen.’

Lord Woolf CJ, Lord Phillips, And, Lord Justice Ward, Lord Justice Brooke, Lord Justice Chadwick
Times 04-Feb-2002, Gazette 21-Mar-2002, [2002] EWCA Civ 90, [2002] 2 All ER 353, [2002] 3 WLR 640, [2003] QB 528
Bailii
England and Wales
Citing:
Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – In re Barrell Enterprises CA 1972
A judge has power to reconsider a judgement which he has delivered before the order consequent upon it has been sealed, but the judge should only exercise this power if there are strong reasons for doing so. When oral judgments have been given the . .
Cited – Flower v Lloyd CA 1877
The plaintiffs tried to restrain the defendant from infringing their patent. They succeeded at first instance but the order was overturned on appeal. An expert went to inspect the process at the defendant’s works. Later, employees gave affidavits . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Taylor and Another v Lawrence and Another CA 25-Jan-2001
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’ . .
See Also – Taylor and Another v Lawrence and Another CA 25-Jan-2001
Boundary dispute appeal – whether court has apparent bias. The court must ask ‘whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility . . that the tribunal was biased.’ . .

Cited by:
Cited – Seray-Wurie v Hackney London Borough Council CA 25-Jun-2002
The claimant had applied for and been granted its costs certificate by default. The respondent claimed it had sent its point of issue notice in time. The council now applied under the rule for the court itself to re-open the decision to allow the . .
Cited – Regina v Moore CACD 12-May-2003
The applicant had been convicted of contempt of court, but succeeded on appeal. Costs had been ordered in his favour, but the matter had been referred back to the court to consider the extent of its powers on such an occasion.
Held: The making . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Donovan Crawford Regardless Limited Alma Crawford v Financial Institutions Services Limited PC 19-Jun-2003
PC (Jamaica) The petitioners sought leave to appeal to the Privy Council. They had an appeal as of right. They now sought special leave, complaining that the Court in Jamaca had granted leave subject to them . .
Cited – G v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
Cited – Couwenbergh v Valkova CA 27-May-2004
The deceased’s family lived in Europe. The defendant had moved in as tenant and had become confidante and friend over many years. A will had been prepared leaving everything to the defendant. That will had been challenged alleging incorrect . .
Cited – Roberts v Parole Board CA 28-Jul-2004
The discretionary life-prisoner faced a parole board. The Secretary of State wished to present evidence, but wanted the witness to be protected. The Parole Board appointed special counsel to hear the evidence on behalf of the prisoner on terms that . .
Applied – Re U (A Child) CA 24-Feb-2005
The applicant sought a second appeal saying there was fresh evidence.
Held: Applying Taylor -v- Lawrence, a second appeal could only be entertained where it was shown that the earlier judicial process had been critically undermined. It must be . .
Cited – Couwenbergh v Valkova CA 28-Jan-2005
The will was challenged as to its due execution. Statements had been produced that the two witnesses had not been present when the will was signed, but those witnesses now said that they and not signed the statements.
Held: The evidence met . .
Cited – AWG Group Ltd and Another v Morrison and Another ChD 1-Dec-2005
Application was made for the judge to recuse himself from a forthcoming trial when he indicated that an intended witness was known to him personally.
Held: The test to be applied was to include: ‘all circumstances which have a bearing on the . .
Cited – Morrison and Another v AWG Group Ltd and Another CA 20-Jan-2006
The defendants requested the judge to recuse himself because one witness was well known to the judge. He declined, saying that arrangements had been made for him not to be called. The defendant appealed.
Held: There was no allegation of actual . .
Cited – In re S (a child) and W (a child); KSJ v WRW CA 5-Nov-2008
The mother sought leave to appeal against orders made for the financial support of her children. The parties had been involved in very protracted and bitter litigation.
Held: The appeals had no reasonable prospect of success and were . .
Cited – Judge v Judge and others CA 19-Dec-2008
The wife appealed against an order refusing to set aside an earlier order for ancillary relief in her divorce proeedings, arguing that it had been made under a mistake. The sum available for division had had deducted an expected liabiliity to the . .
Cited – Asda Stores Ltd v Thompson, Pullan, and Caller EAT 16-Jun-2003
The appellants had been dismissed after investigations satisfied the employer that the employees had been using illegal drugs. Cross appeals were made in the following misconduct unfair dismissal claim. The employees complained of the use of . .
Cited – Owens v Noble CA 10-Mar-2010
The respondent had been awarded substantial damages after an accident for which the appellant was responsible. The appellant now said that the claimant had exaggerated his injuries and misled the judge. The defendant argued that the correct approach . .
Cited – Sherry v The Queen PC 4-Mar-2013
Discretion as to credit for remand time
(Guernsey) In 1980 the appellant had been sentenced to three months imprisonment. He had spent 10 days on remand, but no allowance was given for that time. He gave notice of appeal, but after being released on open remand, he failed to appear at his . .
Cited – Patel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
Cited – Guy v Barclays Bank Plc CA 8-Dec-2010
In an earlier action the claimant said that he had been defraused of land by a forged transfer. The transfereee had charged the land to the respondent bank who in that action gained a decision that its charge was effective, the transfer being . .
Mentioned – Gold Harp Properties Ltd v Macleod and Others CA 29-Jul-2014
The company appealed against an order re-instating to the register leases which the company said it had forfeited for non-payment of rent. After the forfeiture, the landlord had granted new leases. It appealed saying that exceptional circumstances . .
Cited – Yasain, Regina v CACD 16-Jul-2015
The Court was asked as to the powers of the Court of Appeal Criminal Division to re-open an appeal to correct an error which is said to have caused real injustice in that the error led to the quashing of a sentence lawfully imposed in the Crown . .
Cited – 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 – Ameyaw v McGoldrick and Others QBD 6-Jul-2020
Recusal Refused – former Pupil Master
Request for recusal – the judge was said to have been a member of the same chambers as counsel for the claimant and had been his mentor.
Held: Refused: ‘It was untenable to contend that there was an appearance of bias in circumstances where . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional, Natural Justice

Leading Case

Updated: 02 November 2021; Ref: scu.167558

Nissan v The Attorney General: HL 11 Feb 1969

The plaintiff was a British subject with a hotel in Cyprus taken over by British troops on a peace-keeping mission. At first the men were there by agreement of the governments of Cyprus and the United Kingdom. Later they became part of a United Nations peace-keeping force. The plaintiff claimed compensation for the occupation of his hotel and damage allegedly done to his property by the British troops billeted there. Preliminary issues were tried which included the question whether the alleged actions of the British troops were acts of state so that no claim lay against the UK government.
Held: The defence of act of state was not available. While the making of the treaty (agreement) between the Cyprus government and the British, Greek and Turkish governments was an act of state and some acts done in performance of the treaty might be acts of state, the occupation of the hotel and the damage allegedly done to it were not sufficiently closely connected to the making of the treaty to fall within the scope of the doctrine.
The House considered the meaning of the phrase ‘act of state’. The way in which the government exercises its prerogatives in relation to foreign affairs and in its relations with foreign states does not give rise to rights which are cognisable by the domestic courts: ‘As regard such acts it is certainly the law that the injured person if an alien cannot sue in an British Court and can only have resort to diplomatic protest. How far this rule goes and how far it prevents resort to the courts by British subjects is not a matter on which clear authority exists.’
Lord Wilberforce cited the following definition of Crown acts of state: ‘An act of the executive as a matter of policy performed in the course of its relations with another state, including its relations with the subjects of that state, unless they are temporarily within the allegiance of the Crown.’ However: ‘This is less a definition than a construction put together from what has been decided in various cases; it covers as much ground as they do, no less, no more. It carries with it the warning that the doctrine cannot be stated in terms of a principle but developed from case to case.’
Lord Pearson said: ‘it is necessary to consider what is meant by the expression ‘act of state’, even if it is not expedient to attempt a definition. It is an exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessations of territory. Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and determined by the court.’
Lord Reid said: ‘I think that a good deal of the trouble has been caused by using the loose phrase ‘act of state’ without making clear what is meant. Sometimes it seems to be used to denote any act of sovereign power or of high policy or any act done in the execution of a treaty. That is a possible definition, but then it must be observed that there are many such acts which can be the subject of an action in court if they infringe the rights of British subjects. Sometimes it seems to be used to denote acts which cannot be made the subject of inquiry in a British court. But that does not tell us how to distinguish such acts: it is only a name for a class which has still to be defined.’

Lord Reid, Lord Morris of Borth-y-Gest, Lord Pearce, Lord Wilberforce, Lord Pearson
[1970] AC 179, [1969] UKHL 3
Bailii
England and Wales
Cited by:
Cited – Mulcahy v Ministry of Defence CA 21-Feb-1996
A soldier in the Artillery Regiment was serving in Saudi Arabia in the course of the Gulf war. He was injured when he was part of a team managing a Howitzer, which was firing live rounds into Iraq, and he was standing in front of the gun when it was . .
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 – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.198143

Morgan v Simpson: CA 1974

Voting papers that were invalid as a result of minor administrative errors by officials (and not the voters). Counting the invalid votes would have affected the election outcome.
Held: The election was declared void. Section 37(1) was not available to cure the defects, but rather it was to be used to ask whether the defects had affected the outcome.
Lord Denning MR commented on parliamentary elections conducted more than a century earlier by poll whereby a voter’s name, qualification and vote were recorded in a book open for public inspection, saying: ‘Such was the method of election at common law. It was open. Not by secret ballot. Being open, it was disgraced by abuses of every kind, especially at parliamentary elections. Bribery, corruption, treating, personation, were rampant.’ and ‘An election petition is a serious – and expensive – matter and is not lightly to be set aside.’
Stephenson LJ said: ‘For an election to be conducted substantially in accordance with that law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot.’

Lord Denning MR, Stephenson LJ
[1975] 1 QB 151, [1974] 3 All ER 722, [1974] 3 WLR 517
Representation of the People Act 1949 37(1)
England and Wales
Cited by:
Cited – Edgell v Glover, Garnett (Returning Officer) QBD 4-Nov-2003
The constituency had adopted an all postal ballot, resulting in a counted majority of one. One ballot paper’s confirmation of identity had not been signed.
Held: The function of the court, exercising its jurisdiction under section 48(1), is . .

Lists of cited by and citing cases may be incomplete.

Elections, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.187488

Secretary of State for Energy and Climate Change v Friends of The Earth and Others: CA 25 Jan 2012

The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against a finding that this was unlawful.
Held: Permission to appeal was granted, but the appeal failed. The effect of the proposed modifications were retrospective, and could not be supported without an express statutory power.
Moses LJ said: ‘I should record that the proposed modifications remain proposals. There was an issue before Mitting J as to whether a proposal put out for consultation was a proper subject of judicial review at all, but in the event neither side has sought in this appeal to contend that the fact that the Secretary of State has not yet reached a decision, still less laid the modifications before Parliament, should inhibit or prevent this court from reaching a decision on the substantive issues. Both sides require an urgent decision as to the lawfulness of the proposals in relation to installations becoming eligible from 12 December 2011 to 1 April 2012.’ and
‘The question, I respectfully suggest, is not whether the proposed modification may have a significant adverse impact on those proposing to install small solar systems once the proposal was announced, but rather whether Parliament conferred a power to make a modification with such a retrospective effect. It did not.’

Lloyd, Moses, Richards LJJ
[2012] EWCA Civ 28
Bailii
Energy Act 2008
England and Wales
Citing:
Cited – Abbott v Minister for Lands PC 30-Mar-1895
(From the Supreme Court for New South Wales) When considering what was a ‘vested right’ for the purposes of applying the presumption against retrospectivity of statutes affecting such rights, to convert a mere right existing in the members of the . .
Cited – Newcastle Breweries Ltd v The King 1921
The court was asked to consider the validity of regulation 2B of the Realm Regulations made under section 1 of the 1914 Act.
Held: The presumption against a statute authorising the expropriation of a subject’s property without payment is even . .
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 of its property . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ considered the interpretation of an Act of Parliament to give it retrospective powers: ‘In my judgment the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in . .

Lists of cited by and citing cases may be incomplete.

Utilities, Administrative, Constitutional, Judicial Review, Environment

Updated: 02 November 2021; Ref: scu.450477

Secretary of State for The Home Department v Rahman: CA 15 Jul 2011

Several claimants challenged the withdrawal by the respondent of the seven year child concession policy, under which families who did not have leave to be in this country, but with children who had been in this country for 7 years were, save in exceptional circumstances, allowed to remain here. In each of these cases, it was claimed that the policy must continue to be applied to the applicants, who made their applications for leave to remain to the Secretary of State after the policy had been withdrawn.
Held: The appeals failed. The Secretary of State had acted lawfully in withdrawing DP5/96 and in determining the transitional arrangements that would apply. The Secretary of State was entitled to review her policy (such as that contained in DP5/96) and to change or revoke it whenever she considered it to be in the public interest to do so. They rejected the argument that the decision to withdraw the policy was irrational or unfair and held that the interests of the children were adequately addressed by article 8 of the Convention.
The appellants argued that the policy withdrawal by the defendant amounted to a statement of a change in the immigration rules, and should have been placed before Parliament. Stanley Burnton LJ rejected the argument saying: ‘In my judgment, Mr Malik’s submission that the withdrawal of DP5/96 amounted to a change in the immigration Rules proves too much. If the withdrawal of DP5/96 was such a change, it necessarily follows that DP5/96 itself should have been laid before Parliament in accordance with section 3(2). It was not. On this basis, DP5/96 was unlawful, and its withdrawal was lawful since it brought to an end the application of an unlawful policy.
It is therefore unnecessary to decide whether or not DP5/96 should have been laid before Parliament pursuant to section 3(2) of the 1971 Act. It is sufficient to say that it seems to me to be well arguable that it was indeed a rule ‘laid down by [the Secretary of State] as to the practice to be followed . . for regulating the entry into and stay in the United Kingdom of persons required . . to have leave to enter.’ A direction that in defined circumstances a discretion conferred on the Secretary of State is normally to be exercised in a specified way may well be such a rule.’

Thomas, Mooer-Bick, Stanley Burnton LJJ
[2011] EWCA Civ 814
Bailii
Immigration Act 1971 3(2)
England and Wales
Citing:
Appeal from – Abbassi and Others, Regina (on The Application of) v Secretary of State for The Home Department Admn 12-Nov-2010
Each claimant sought judicial review of a decision of the respondent to refuse them leave to remain. They said that when deciding whether to grant leave, the defendant should have afforded the claimants the benefit of the Secretary of State’s seven . .

Cited by:
Appeal from – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .

Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 02 November 2021; Ref: scu.441868

Salomon v Customs and Excise Commissioners: CA 1966

Diplock LJ said: ‘The Convention is one of those public acts of state of Her Majesty’s Government of which Her Majesty’s judges must take judicial notice if it be relevant to the determination of a case before them, if necessary informing themselves of such acts by inquiry of the appropriate department of Her Majesty’s Government. Where, by a treaty, Her Majesty’s Government undertakes either to introduce domestic legislation to achieve a specified result in the United Kingdom or to secure a specified result which can only be achieved by legislation, the treaty, since in English law it is not self-operating, remains irrelevant to any issue in the English courts until Her Majesty’s Government has taken steps by way of legislation to fulfil its treaty obligations. Once the Government has legislated, which it may do in anticipation of the coming into effect of the treaty, as it did in this case, the court must in the first instance construe the legislation, for that is what the court has to apply. If the terms of the legislation are clear and unambiguous, they must be given effect to, whether or not they carry out Her Majesty’s treaty obligations, for the sovereign power of the Queen in Parliament extends to breaking treaties (see Ellerman Lines v. Murray; White Star Line and U.S. Mail Steamers Oceanic Steam Navigation Co. Ltd. v. Comerford [1931] A.C. 126; sub nom. The Croxteth Hall; The Celtic, 47 T.L.R. 147, H.L.(E.) , and any remedy for such a breach of an international obligation lies in a forum other than Her Majesty’s own courts. But if the terms of the legislation are not clear but are reasonably capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie presumption that Parliament does not intend to act in breach of international law, including therein specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the legislation is consonant with the treaty obligations and another or others are not, the meaning which is consonant is to be preferred. Thus, in case of lack of clarity in the words used in the legislation, the terms of the treaty are relevant to enable the court to make its choice between the possible meanings of these words by applying this presumption.’ However, the sovereign power of the Queen in Parliament extends to breaking treaties.
Lord Denning MR said: ‘In 1950 there was a convention between many of the European countries . . I think we are entitled to look at it, because it is an instrument which is binding in international law: and we ought always to interpret our statutes so as to be in conformity with international law. Our statute does not in terms incorporate the convention, nor refer to it. But that does not matter . .’

Diplock LJ, Lord Denning MR
[1967] 2 QB 116, [1966] 2 All ER 340, [1966] 2 Lloyds Rep 460, [1966] 3 WLR 36
Convention on the Valuation of Goods for Customs Purposes of December 15, 1950
England and Wales
Cited by:
Cited – Regina v F CACD 16-Feb-2007
The defendant was charged with offences for having been in possession of a document or record containing information of a kind ‘likely to be useful to a person committing or preparing an act of terrorism’. It was thought he was associated with a . .
Cited – Adams, Regina (on The Application of) v Secretary of State for Justice SC 11-May-2011
The three claimants had each been convicted of murders and served time. Their convictions had been reversed eventually, and they now appealed against the refusal of compensation for imprisonment, saying that there had been a miscarriage of justice. . .
Cited – The United States of America v Nolan SC 21-Oct-2015
Mrs Nolan had been employed at a US airbase. When it closed, and she was made redundant, she complained that the appellant had not consulted properly on the redundancies. The US denied that it had responsibility to consult, and now appealed.
Cited – References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills were Outwith Parliament’s Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.248851

Practice Statement (Judicial Precedent): HL 1966

The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those of the committee which determined the decision unanimously or by a majority. That would be a licence not appropriate to final decision-making by a supreme court. ‘Their lordships regard the use of precedent as an indispensable foundation upon which to decide what is the law and its application to individual cases. It provides at least some degree of certainty upon which individuals can rely in the conduct of their affairs, as well as a basis for orderly development of legal rules. Their lordships nevertheless recognise that too rigid adherence to precedent may lead to injustice in a particular case and also unduly restrict the proper development of the law. They propose therefore to modify their present practice and, while treating former decisions of this House as normally binding, to depart from a previous decision when it appears right to do so. In this connexion they will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into and also the especial need for certainty as to the criminal law. This announcement is not intended to affect the use of precedent elsewhere than in this House.’

[1966] 3 All ER 77, [1966] 1 WLR 1234
England and Wales
Citing:
Overruled – London Street Tramways v London County Council HL 25-Apr-1898
House Decisions binding on Itself
The House laid down principles for the doctrine of precedent. When faced with the hypothesis that a case might have been decided in ignorance of the existence of some relevant statutory provision or in reliance on some statutory provision which was . .

Cited by:
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
Cited – Rees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
Cited – Fitzleet Estates Ltd v Cherry HL 9-Nov-1977
Income tax – Schedule D, Cases III and VI – Payments of interest and ground rent incurred when property was being developed – Whether capitalised or paid out of profits or gains brought into charge to tax – Income Tax Act 1952 (15 and 16 Geo. 6 and . .
Cited – Street v Derbyshire Unemployed Workers’ Centre CA 21-Jul-2004
The claimant alleged that she had been dismissed for making qualifying disclosures about her employers. The employer said that her actions had not been in good faith. The claimant answered that her motive was irrelevant. The claimant appealed . .
Cited – Department of Transport v Chris Smaller (Transport) Ltd HL 1989
An application had been made to strike out a claim for want of prosecution. The writ was not issued until the end of the relevant six year limitation period and then not served for a further nine months. The period of inexcusable delay after action . .
Cited – Grovit and others v Doctor and others HL 24-Apr-1997
The plaintiff began a defamation action against seven defendants. Each had admitted publication but pleaded justification. The claims against the fourth to seventh defendants were dismissed by consent, and the third had gone into liquidation. The . .
Cited – Jindal Iron and Steel Co Ltd and others v Islamic Solidarity Shipping Company Jordan Inc (‘The Jordan II’) HL 25-Nov-2004
Cargo was damaged by rough handling during loading and/or discharging, and/or inadequate stowage due to failure to provide dunnage, failure to secure the coils and/or stacking them so that the bottom layers were excessively compressed. The House was . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – 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 – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Applied – Regina v Shivpuri HL 15-May-1986
The defendant had been accused of attempting to import controlled drugs, but the substances actually found were not in fact a controlled drug, though he had believed and intended them to be. He appealed saying that he should not be conviced of an . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Cited – Gibson v United States of America PC 23-Jul-2007
(The Bahamas) The US government sought the extradition of the appellant from the Bahamas on drugs charges. The warrants were found to be void, and the defendant released unconditionally, when the nmagistrate rejected evidence from an admitted . .
Cited – A v Hoare HL 30-Jan-2008
Each of six claimants sought to pursue claims for damages for sexual assaults which would otherwise be time barred under the 1980 Act after six years. They sought to have the House depart from Stubbings and allow a discretion to the court to extend . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Cited – Regina v National Insurance Commissioner, Ex parte Hudson HL 1972
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously . .
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 – Hesperides Hotels Ltd v Aegean Turkish Holidays Ltd, Muftizahde HL 1978
No English action lay for trespass to a hotel on the island of Cyprus, but an action did lie for the conversion of the chattels present in that same hotel. Questions of comity might well be involved, and it had to be for Parliament to change the . .
Cited – Vestey v Inland Revenue Commissioners HL 1979
Taxes are imposed upon subjects by Parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined. A proposition that whether a subject is to be taxed or . .
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
Cited – Regina v Howe etc HL 19-Feb-1986
The defendants appealed against their convictions for murder, saying that their defences of duress had been wrongly disallowed.
Held: Duress is not a defence available on a charge of murder. When a defence of duress is raised, the test is . .
Cited – Austin v Mayor and Burgesses of The London Borough of Southwark SC 23-Jun-2010
The appellant’s brother had been the secure tenant of the respondent Council which had in 1987 obtained an order for possession for rent arrears suspended on condition. The condition had not been complied with, but the brother had continued to live . .
Cited – Jones v Kernott SC 9-Nov-2011
Unmarried Couple – Equal division displaced
The parties were unmarried but had lived together. They now disputed the shares in which they had held the family home. It had been bought in joint names, but after Mr Kernott (K) left in 1993, Ms Jones (J) had made all payments on the house. She . .
Cited – Youngsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
Applied – 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 – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Cited – Regina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.182382

Regina v Her Majesty’s Attorney General ex parte Rusbridger and Another: HL 26 Jun 2003

Limit to Declaratory Refilef as to Future Acts

The applicant newspaper editor wanted to campaign for a republican government. Articles were published, and he sought confirmation that he would not be prosecuted under the Act, in the light of the 1998 Act.
Held: Declaratory relief as to the criminality of future conduct is available but only in exceptional cases. The issue the respondents brought before the courts was not a live, practical question. It is not the function of the courts to keep the statute book up to date and the 1998 Act is not to be an instrument by which the courts can chivvy Parliament into spring-cleaning the statute book. No one who advocates the peaceful abolition of the monarchy and its replacement by a republican form of government is at any risk of prosecution. The section would now be ‘read down’ as required by section 3 the 1998 Act so that such advocacy could not constitute a criminal offence, and no Attorney-General or Director of Public Prosecutions could authorize a prosecution without becoming a laughing stock. A private prosecution would be subject to a nolle prosequi. The making of a declaration of incompatibility, like any declaration, is a matter for the discretion of the court. This was not an exceptional case so as to justify a declaration. Appeal allowed.

Lord Steyn, Lord Hutton, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe
[2003] UKHL 38, Times 27-Jun-2003, [2004] 1 AC 357
House of Lords, Bailii
Treason Felony Act 1848 3, Human Rights Act 1998
England and Wales
Citing:
Cited – Regina v Mitchel 1848
The judge instructed the jury that advocacy of republicanism was necessarily an offence: ‘There are no two things more inconsistent with each other – no two ideas more opposed to each other – no two expressions more contradictory of each other than . .
Cited – Munnich v Godstone Rural District Council 1966
When considering requests for a declaration, questions of pure law may more readily be made, than those dependent upon the particular facts of the case. . .
Cited – Norris v Ireland ECHR 26-Oct-1988
A homosexual man complained that the criminalisation of homosexual conduct in Ireland violated his article 8 right to respect for his private life, although he accepted that the risk of being prosecuted was remote.
Held: The court accepted . .
Cited – Attorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
Cited – Re S (Children: Care Plan); In re W and B (Children: Care plan) In re W (Child: Care plan) HL 14-Mar-2002
The Court of Appeal had imposed conditions upon the care plan to be implemented by the local authorities, identifying certain ‘starred’ essential milestones. The local authorities appealed.
Held: This was not a legitimate extension of the . .
Cited – Imperial Tobacco Ltd v Attorney-General HL 1980
The applicant sought a declaration as to the lawfulness of a lottery scheme whilst criminal proceedings were pending against it for the same scheme.
Held: It was not necessary to decide whether a declaration as to the criminality or otherwise . .
Cited – Regina v Director of Public Prosecutions ex parte Camelot Group Plc Admn 11-Feb-1997
There is jurisdiction for a civil court to make a declaration as to the criminality of future conduct. . .
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 . .
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 (on the Application of Pretty) v Director of Public Prosecutions and Secretary of State for the Home Department HL 29-Nov-2001
The applicant was terminally ill, and entirely dependent upon her husband for care. She foresaw a time when she would wish to take her own life, but would not be able to do so without the active assistance of her husband. She sought a proleptic . .
Cited – 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 . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – Macnaughton v Macnaughton’s Trustees IHCS 1953
It is not the function of the courts to decide hypothetical questions which do not impact on the parties before them. Lord Justice-Clerk Thomson said: ‘Our Courts have consistently acted on the view that it is their function in the ordinary run of . .
Cited – Regina v Gallagher 1883
Acts of treason did not extend to acts in Ireland. . .
Appeal from – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .

Cited by:
Cited – I-CD Publishing Ltd v The Secretary of State, The Information Commissioner (Interested Party) Admn 21-Jul-2003
The claimant sought judicial review challenging the restrictions on the sale of electoral registers to registered credit reference agencies. Following Robertson (1) the new regulations created two registers, and the claimant sought to be able to . .
Appealed to – Rusbridger and Another v Attorney General CA 20-Mar-2002
The paper wanted to publish an article about the monarchy but was concerened that it might lead to it being prosecuted under the 1848 Act. The complainant sought declarations as to the incompatibility of the 1848 Act with the 1998 Act.
Held: . .
Cited – Blackland Park Exploration Ltd v Environment Agency CA 15-Dec-2003
The landowner disposed of liquid waste into oil bearing strata via a deep borehole. At that depth, it would not mix with what was being extracted elsewhere.
Held: The judge had been correct to refuse a declaration as to the lawfulness. . .
Cited – British American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
Cited – Taylor v Lancashire County Council and others CA 17-Mar-2005
The tenant occupied his farm under a lease limiting his use of the farm. He was found to be trading in breach of his covenant and a notice to quit was issued and possession sought. He argued that the 1986 Act was discriminatory and inadequate to . .
Cited – Foulser and Another v HM Inspector of Taxes ChD 20-Dec-2005
The taxpayer company entered into an arrangement in which shares were purchased by a company based in Ireland and resold. A claim was made for holdover relief.
Held: The scheme failed. The restriction imposed did not infringe the right of . .
Cited – Ashley and Another v Chief Constable of Sussex Police HL 23-Apr-2008
The claimants sought to bring an action for damages after a family member suspected of dealing drugs, was shot by the police. At the time he was naked. The police officer had been acquitted by a criminal court of murder. The chief constable now . .
Cited – Secretary of State for the Home Department v Nasseri HL 6-May-2009
The applicant had claimed asylum after fleeing Afghanistan to Greece and then to the UK. On the failure of his application, he would be returned to Greece, but objected that he would thence be returned to Afghanistan where his human rights would be . .
Cited – Nicklinson v Ministry of Justice and Others QBD 12-Mar-2012
The claimant suffered locked-in syndrome and sought relief in a form which would allow others to assist him in committing suicide. The court considered whether the case should be allowed to proceed rather than to be struck out as hopeless.
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 – Human Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Media, Human Rights

Leading Case

Updated: 02 November 2021; Ref: scu.183877

Shindler and Another v Chancellor of The Duchy of Lancaster and Another: Admn 28 Apr 2016

The claimants challenged the franchise for the forthcoming European Referendum which excluded them rom voting on the basis that they were not resident within the UK and had neot been registered to vote here for more than five years.
Held: ‘1) In principle, section 2 of the 2015 Act is capable of engaging EU law
(2) Section 2 of the 2015 Act is not a restriction on the rights of free movement enjoyed by the claimants as EU citizens.
(3) In any event, if it were such a restriction, section 2 of the 2015 Act would be objectively justified.
For these reasons we grant the claimants leave to apply for judicial review but refuse the application.’

Lloyd Jones LJ, Blake J
[2016] EWHC 957 (Admin), [2016] HRLR 12
Bailii
European Union Referendum Act 2015 2
England and Wales
Cited by:
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.

Elections, Constitutional, European

Updated: 02 November 2021; Ref: scu.563225

Somerset’s Case, Somerset v Stewart: 1772

Habeas Corpus Granted to Slave

Somerset, a slave purchased by the defendant in Virginia, had been brought to England, but then confined on board a ship. He brought a writ for habeas corpus.
Held: The plea in defence was insufficient. Lord Mansfield ordered an African slave to be freed upon finding the custodian’s return insufficient. At common law a petitioner’s status as an alien was not a categorical bar to habeas corpus relief, and the common law recognised no status of slave, though some colonies might.
Lord Mansfield held that ‘The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political’. ‘Chattel slavery’ as ‘ ‘full ownership of another human being’ had been unlawful under Imperial legislation dating back to colonial times.

Lord Mansfield, Lord Holt
(1772) 20 StTr 1, [1772] EngR 57, (1772) Lofft 1, (1772) 98 ER 499, (1772) 20 How St Tr 1
Commonlii
England and Wales
Cited by:
Cited – Khera v Secretary of State for The Home Department; Khawaja v Secretary of State for The Home Department HL 10-Feb-1983
The appellant Khera’s father had obtained leave to settle in the UK. The appellant obtained leave to join him, but did not disclose that he had married. After his entry his wife in turn sought to join him. The appellant was detained as an illegal . .
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 . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Human Rights, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.265914

Kobler v Republik Osterreich: ECJ 30 Sep 2003

The claimant’s claim had been presented to the Supreme Administrative Court in Austria, who had referred a question to the ECJ. Following the Schoning decision, the court withdrew the referral, and dismissed the claim. He now claimed damages from the state for the wrongful dismissal of his claim by the court.
Held: It was for member states not to infringe European law. The state, including the mechanisms for implementing the law is to be seen as one entity. Where the state could be liable for failing properly to implement European law, so too could the courts of that country. Three conditions for entitlement existed: a private right had to have been infringed, it had to be sufficiently serious, and there must be a direct causal link betrween the breach and the loss.
ECJ Reference for a preliminary ruling: Landesgericht fur Zivilrechtssachen Wien – Austria. Equal treatment – Remuneration of university professors – Indirect discrimination – Length-of-service increment – Liability of a Member State for damage caused to individuals by infringements of Community law for which it is responsible – Infringements attributable to a national court.

Times 03-Oct-2003, C-224/01, [2003] EUECJ C-224/01, [2004] QB 848, [2003] ECR I-10239, [2004] All ER (EC) 23, [2004] 2 WLR 976, [2003] 3 CMLR 28, ECLI:EU:C:2003:513
Bailii
EC Treaty 48
European
Citing:
Cited – Schoning-Kougebetopoulou v Freie und Hansestadt Hamburg (Judgment) ECJ 15-Jan-1998
ECJ Freedom of movement for persons – Workers – Equal treatment – Promotion on grounds of seniority – Collective agreement applicable to public sector employees taking into account only periods of employment . .
Cited – Brasserie du Pecheur v Bundesrepublik Deutschland; Regina v Secretary of State for Transport, ex parte Factortame and others (4) ECJ 5-Mar-1996
Member states may be liable to individuals for their failure to implement EU laws. The right of individuals to rely on directly applicable provisions of the EC Treaty before national courts is not sufficient in itself to ensure full and complete . .

Cited by:
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
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 – Nuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd) SC 11-Apr-2017
This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council . .
Cited – P v Commissioner of Police of The Metropolis SC 25-Oct-2017
This appeal concerns the directly effective right of police officers under EU law to have the principle of equal treatment applied to them. The question raised is whether the enforcement of that right by means of proceedings in the Employment . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.186596

The Pollen Estate Trustee Company Ltd and Another v HM Revenue and Customs: CA 26 Jun 2013

The court was asked ‘If a charity acquires property in furtherance of its charitable purposes, or as an investment, it is entitled to relief against liability to pay stamp duty land tax (SDLT) on the purchase price.’
Held: The modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose. Where a charity contributed to the purchase of a property, to be held on trust for it and other, non-charitable, contributors in proportion to their contributions, the ‘chargeable interest acquired’ by reference to which stamp duty land tax was to be levied was the equitable estate collectively acquired by the beneficiaries under the trust. However, paragraph 1(1) of Schedule 8 to the 2003 Act was exempted the land transaction from charge to the extent of the charity’s interest.

Laws, McFarlane, Lewison LJJ
[2013] EWCA Civ 753, [2013] 1 WLR 3785, [2013] STC 1479, [2013] 3 All ER 742, [2013] WLR(D) 255, [2013] BTC 606, [2013] 27 EG 91, [2013] WTLR 1593, [2013] STI 2298
Bailii, WLRD
Finance Act 2003 42(1)
England and Wales
Citing:
Appeal from – The Pollen Estate Trustees Ltd Kings College London v HM Revenue and Customs UTTC 3-Aug-2012
UTTC STAMP DUTY LAND TAX – Charities and Minister of the Crown relief – whether reliefs apply to interest in land acquired by a charity or Minister of the Crown as a tenant in common pursuant to a purchase made . .

Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Charity, Stamp Duty, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.511088

Gujra, Regina (on The Application of) v Crown Prosecution Service: Admn 9 Mar 2011

The claimant sought judicial review of a decision of the respondent to take over and discontinue his private prosecutions arising from public order incidents, saying that the respondent’s policy was unlawful in restricting such prosecutions.
Held: The request was refused. The policy was lawful. The respondent had now adopted exactly the policy criticised in Duckenfield by applying the Code for Crown Prosecutors in such cases. However: ‘whilst private individuals have the right to institute criminal prosecutions, there is no policy that they should be permitted to conduct such prosecutions without state intervention for good reason.’ and
‘The Code is issued pursuant to s.10(1) of the 1985 Act to give guidance on the general principles that are to be applied in determining, inter alia, whether proceedings of which the CPS has the conduct should be discontinued. Since the test must be applied if the CPS does take over the conduct of proceedings, it cannot in my view be unlawful to apply that test in determining whether to take over the conduct of proceedings in the first place. Moreover the policy arguments in favour of a uniform approach are compelling and provide a sound basis for the adoption of the Code test when deciding, in the exercise of the broad discretion under s.6(2), whether to take over the conduct of proceedings in circumstances where there is no duty to take them over.’
The decision had only been made after proper consideration at senior levels within the CPS, and strong reason would be needed to disturb it.

Richards LJ, Edwards-Stuart J
[2011] EWHC 472 (Admin), [2011] ACD 62, [2011] 2 Cr App R 12, [2012] 1 WLR 254, (2011) 175 JP 161
Bailii
Prosecution of Offences Act 1985 6
England and Wales
Citing:
Cited – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – Raymond v Attorney General and Others CA 1982
The power under statute to take over the conduct of private prosecutions includes a power to discontinue those proceedings, to issue a nolle prosequi. The DPP is free to make decisions, even value judgments on his or her assessment of the public . .
Cited – Regina v Director of Public Prosecutions ex parte Duckenfield etc Admn 31-Mar-1999
Private prosecutions had been brought against two retired police officers, D and M, in relation to the Hillsborough disaster; and the Director had refused a request by the officers to take over and discontinue those prosecutions, stating that his . .
Cited – Scopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .

Cited by:
Appeal from – Gujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Updated: 02 November 2021; Ref: scu.430525

Rex (at the prosecution of Arthur Zadig) v Halliday: HL 1 May 1917

The applicant was German born but a naturalised Englishman who complained of having been interned by a regulation made under the 1914 Act. He said that the regulation was ultra vires.
Held: The appeal failed (Lord Shaw dissenting). The House upheld the regulation as being within the scope of the power given to the minister by the statute on the ground that the regulation was intra vires the Act there being no deeming provision.
Any order would require recommendation by the appropriate defence authority, and would be subject to representations made by a person affected.
Lord Shaw of Dunfermline said: ‘Whether the government has exceeded its statutory mandate is a question of ultra or intra vires such as that which is now being tried. In so far as the mandate has been exceeded, there lurk the elements of a transition to arbitrary government and therein of grave constitutional and public danger. The increasing crush of legislative effects and the convenience to the Executive of a refuge to the device of Orders in Council would increase that danger twofold were the judiciary to approach any such action by the government in a spirit of compliance rather than of independent scrutiny.’

Lord Finlay LC, Lord Shaw of Dunfermline
[1917] UKHL 1, [1917] AC 260
Bailii
Defence of the Realm Consolidation Act 1914, Defence of the Realm (Consolidation) Regulations 14B
England and Wales
Cited by:
Cited – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Approved – Chester v Bateson 1920
A Regulation brought in under the 1914 Act prohibited the bringing of possession proceedings against a munitions worker without the consent of the Minister.
Held: The prohibition was unlawful. It was a grave invasion of the rights of the . .
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 – McEldowney v Forde HL 18-Jun-1969
The House was asked whether the Magistrates had properly dismissed a charge of membership of an unlawful organisation, namely a Republican club. The Magistrates had found that an unlawful club would only be such if it supported the absorption of . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.265983

Attorney-General of Ceylon v de Livera: PC 1963

A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a gratification to the member ‘for his doing an act in his capacity as such member’, but the conviction by the magistrate was overturned by the Supreme Court of Ceylon.
Held: The attorney-general’s appeal was allowed. The Board considered the meaning of the phrase ‘proceedings in parliament’.
Viscount Radcliffe said: ‘their Lordships are now in a position to address themselves to the facts of this appeal. They approach them on the basis . . that in considering whether the inducement offered by the . . respondent to . . the member was offered to induce him to act in his capacity as such member, the inquiry is not confined to ascertaining whether he was to do something specifically assigned as a member’s function in the Constitution Order or something which was actually a proceeding on the floor of or in the precincts of the House. They recognise that there are many things which a member may be invited to do because he is a member and enjoys as such a status and prestige which supply the motive of the invitation but in doing which he would not be acting in his capacity as a member. But, with this recognition made, they are of the opinion that the circumstances of any particular case may show that in the light of prevailing practices or conventions observed by members of the House some act for which an inducement has been offered is sufficiently closely bound up with and analogous to a proceeding in the House as to be properly described as done by a member in his capacity as such’. And
‘What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a ‘proceeding in Parliament’? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words ‘proceedings in Parliament’ is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm and M, Sess,. 2, c.2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his ‘real’ or ‘essential’ function as a member? For, given the proper anxiety of the House to confine its own or its members’ privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member’s true function.’

Viscount Radcliffe
[1963] AC 103
Bill of Rights 1869
Commonwealth
Cited by:
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 – 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 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.199234

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 of the evidence which was outside the scope of the 1984 Act.
Held: The 1984 Act did not replace entirely the common law powers of the police in collecting evidence. Common law had allowed a police officer exercising an arrest warrant also to search the premises in which he was found. The 1984 Act itself did not create powers capable of being used in this way. The sections were confined to domestic offences. The common law powers remained for international offences.
Hutton L said: ‘It is a well established principle that a rule of the common law is not extinguished by a statute unless the statute makes this clear by express provision or by clear implication.’

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Hutton and Lord Rodger of Earlsferry
Times 21-May-2002, [2002] UKHL 20, [2002] 2 AC 692, [2002] ACD 69, [2002] 2 WLR 1315, [2002] 2 All ER 865, [2002] HRLR 32, 12 BHRC 329
House of Lords, Bailii
Extradition Act 1989 8, Police and Criminal Evidence Act 1984 18 19
England and Wales
Citing:
Cited – Ghani v Jones CA 1970
The court was asked as to the powers of the police to retain objects taken and impounded.
Held: The privacy and possessions of an individual were not to be invaded except for the most compelling reasons.
Lord Denning MR said: ‘Balancing . .
Cited – Regina v Governor of Pentonville Prison, Ex Parte Osman QBD 30-Mar-1988
The applicant had been committed to prison pending extradition proceedings brought by Hong Kong alleging substantial fraud. He challenged the committal on the grounds that since the allegations involved transmission of funds over international . .
Appeal from – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
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 by:
Applied – Regina (Hewitson) v Chief Constable of Dorset Police and another QBD 18-Dec-2003
The claimant had been arrested under an extradition warrant. He complained that the police took the opportunity to search his girflriend’s nearby flat. The police responded that the search was conducted under a common law power of search attached to . .
Cited – Durant v Financial Services Authority CA 8-Dec-2003
The appellant had been unsuccessful in litigation against his former bank. The Financial Services Authority had subsequently investigated his complaint against the bank. Using section 7 of the Data Protection Act 1998, he requested disclosure of his . .
Appealed to – Regina (Michael Rottman) v Commissioner of Police for Metropolis and Secretary of State for Home Department Admn 24-Jul-2001
There is no residual common law power of entry for police to enter into premises to execute a search without first obtaining a warrant, beyond that contained in the Act. The Act was intended to provide a complete statement of the powers of entry for . .
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 – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .

Lists of cited by and citing cases may be incomplete.

Police, Extradition, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.170324

Starrs v Ruxton: HCJ 11 Nov 1999

The court was asked ‘whether the Lord Advocate has acted in a way which was incompatible with the rights of the accused under art 6(1) of the Convention to fair trial by ‘an independent and impartial tribunal’ within the meaning of that article.’ Under consideration was the office of Temporary Sheriff. Such temporary trial judges were appointed by the Secretary of State on the advice of the Lord Advocate, himself also a member of the Executive. They were appointed for one year at a time. There was a power to terminate (‘recall’) the appointment during its currency, but this power was scarcely used. The occasion for it did not arise because the temporary sheriffs depended on annual renewal. Although the appointment was renewable, and generally was renewed, there was no certainty that it would be.
Held: The arrangements were held to be inconsistent with the security of tenure necessary to guarantee the independence of the judges in question. The objective observer would see a real risk that the judge might be affected, consciously or unconsciously, by the control maintained by the Executive. The judge would be dependent upon the good regard of the Executive not only for renewal but also for the permanent appointment to which he might well aspire. The brevity of the term of appointment was therefore a critical part of the flaw in the system. The court set aside a conviction because the trial court was not an independent and impartial tribunal, having been presided over by a temporary judge.
Lord Reed said: ‘Conceptions of constitutional principles such as the independence of the judiciary, and of how those principles should be given effect in practice, change over time. Although the principle of judicial independence has found expression in similar language in Scotland and England since at least the late seventeenth century, conceptions of what it requires in substance – of what is necessary, or desirable, or feasible – have changed greatly since that time.’
Lord Justice-Clerk Cullen said that any temporal limit upon a judicial appointment raises a question about independence.

Lord Reed, Lord Justice-Clerk Cullen
[1999] ScotHC HCJ – 259, [2000] UKHRR 78, 2000 SLT 42, [2000] HRLR 191, 8 BHRC 1, 1999 GWD 37-1793, 1999 SCCR 1052, 2000 JC 208, 1999 SCCR 1052
Bailii
Scotland
Cited by:
Cited – Heald and Others v London Borough of Brent CA 20-Aug-2009
The court considered whether it was lawful for a local authority to outsource the decision making on homelessness reviews. The appellants said that it could not be contracted out, and that the agent employed lacked the necessary independence and was . .
Cited – Misick and Others v The Queen PC 25-Jun-2015
Turks and Caicos – The appellants, a former Chief Minister and others, faced a trial on charges of corruption. They objected that the Justice set to hear the case had insufficient security of tenure to guarantee independence, and that the same judge . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Human Rights, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.279233

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 looked at the parliamentary background to the section. It was clear that various amendments were considered which would prevent prosecution for possession of such a knife, but the actual words used were clear did not allow the application of Pepper v Hart, and therefore in assessing the question of what constituted a folding knife, ministerial statements in the House of Commons were not to be admitted. The case of Harris and Fehmi was binding, and the appeal failed.

Waller LJ, Owen J, Sullivan J
Gazette 26-Feb-1998, Times 17-Feb-1998, [1998] EWCA Crim 385, [1998] Crim LR 562, [1998] 2 Cr App R 121
Bailii
Criminal Justice Act 1988 139
England and Wales
Citing:
Cited – Harris v Director of Public Prosecutions; Fehmi v Director of Public Prosecutions QBD 9-Sep-1992
A lockable folding knife was a fixed blade knife where a process was required in order to refold it. To be ‘a folding pocket-knife’ the blade has to be readily and immediately foldable at all times simply by the folding process. It held that a knife . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.86525

Commodore Royal Bahamas Defence Force and Others v Laramore: PC 8 May 2017

Soldier’s right not to attend religious service

(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to freedom of conscience when he was obliged, on pain of disciplinary action, to remain present and doff his cap during Christian prayers at ceremonial parades and at morning and evening colours. This was a sufficiently active participation to hinder the claimant in the enjoyment of his conscientious beliefs. Nor had any justification been shown for it: ‘The Board has no doubt that Mr Laramore was ‘hindered in the enjoyment of his freedom of conscience’ in the present case. His conscience told him that he should not be taking part in the prayers which were part of regular colours parades. He made this point after he had converted to the Muslim religion in 1993, and he pursued it after the 2006 Memorandum reversed the dispensation introduced in 1993. The effect of the 2006 Memorandum was that he was no longer able to enjoy or give effect to his freedom of conscience by falling out during prayers.’
Nor was the interference justified in the circumstances.

Lord Mance, Lord Kerr, Lord Sumption, Lord Reed. Lord Hughes
[2017] UKPC 13, [2017] 1 WLR 2752, [2017] WLR(D) 334
Bailii, WLRD
Commonwealth
Citing:
Cited – The Honourable Dr. Paul Borg Oliver and Another v The Honourable Dr. Anton Buttigieg PC 19-Apr-1966
The Archbishop of Malta had declared it a mortal sin to print, write, sell, buy, distribute or read a left-wing weekly newspaper, the Voice of Malta. The Maltese Medical and Health Department had followed this up by prohibiting all its 2,660 . .
Cited – Banton v Alcoa Minerals of Jamaica Inc 1971
. .
Cited – Hope v New Guyana Ltd 1979
. .
Cited – Attorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
Cited – Regina v Big M Drug Mart 1985
Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a . .
Approved – Scott v Regina 2004
Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised . .

Cited by:
Cited – Lee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Armed Forces, Constitutional, Human Rights

Updated: 02 November 2021; Ref: scu.582134

Mereworth v Ministry of Justice: ChD 23 May 2011

The claimant’s father had been granted the hereditary title of Baron of Mereworth. The claimant having inherited the title objected to the refusal to issue to him a writ of summons to sit in the House of Lords.
Held: The claim was struck out as bound to fail. It is the sole and exclusive right of the House to decide who was entitled to a writ of summons. The court had no jurisdiction. It was clear that the words ‘by virtue of’ in section 1 of the 1999 Act were intended to defeat any right of someone to claim by virtue of heredity. Nor was an hereditary peerage a possession within Article 6.

Lewison J
[2011] EWHC 1589 (Ch), [2012] 2 WLR 192, [2012] Ch 325
Bailii
House of Lords Act 1999 1
England and Wales
Citing:
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 – Viscountess Rhondda’s Claim HL 1922
(Committee of Privileges of the House of Lords) Viscountess Rhondda asserted a right to sit in the House of Lords as a member, relying on the 1919 Act.
Held: It is incorrect for a court to draw conclusions from such elements of the . .
Cited – The Wensleydale Peerage HL 22-Feb-1856
Sir James Parke, a distinguished judge of the Court of the Exchequer, was created a Life Peer but the House of Lords refused to allow him to sit and vote in the House because, they decided, that as the law then stood, the creation of Life Peers was . .
Cited – De la Cierva Osorio de Moscoso and Others v Spain ECHR 1999
A nobiliary title cannot be regarded as amounting to a possession. . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – X v The United Kingdom ECHR 1978
(Commission) The right to participate in the work of the House of Lords cannot be regarded as a civil right within the meaning of Article 6. The Commission stated: ‘It is of the opinion that such a right, connected as it is to the composition of . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 02 November 2021; Ref: scu.441632

Nokes v Doncaster Amalgamated Collieries Ltd: HL 1948

A Contract of Service is not a form of property

The employee coal miner was prosecuted for absenting himself from work. He was found liable by the justices and appealed. The basis of the appeal was that he had formerly been employed by the Hickleton Mining Company Limited. That had become amalgamated with other companies pursuant to a court order made under section 154 of the Companies Act 1929. He contended that his contract did not transfer when that amalgamation occurred and he could be criminally liable only if he was employed by the new company. Section 154(1)(a) provided that the court, in ordering the amalgamation, could make an order for the transfer to the transferee company of ‘the property’ of the transferor company. Section 154(4) then went on to provide that: ‘In this section the expression ‘property’ includes property rights and powers of every description and the expression ‘liabilities’ includes duties.’ The question was whether a contract of employment between the transferor company and an employee was included within the definition of ‘the property’ of the transferor company, such that on the amalgamation, the employment contract was, thereby, transferred from the transferor company to the transferee company without the consent of the employee.
Held: Section 154 did not apply to contracts of service.
It is a fundamental principle of the common law that an employee should not be compulsorily transferred against his will, and that it would require very clear language to achieve that result. (Lord Romer dissented)
Lord Thankerton said: ‘If it had been intended [by Parliament] to extinguish the rights of third parties, that should have been done ‘ by a clear, definite and positive enactment, not by an ambiguous one such as the section relied on in this case”
Lord Atkin said: ‘I confess it appears to me astonishing that apart from overriding questions of public welfare power should be given to a court or anyone else to transfer a man without his knowledge and possibly against his will from the service of one person to the service of another. I had fancied that ingrained in the personal status of the citizen under our laws was a right to choose for himself whom he would serve and that this right of choice constituted the main difference between a servant and a serf.’
Viscount Simon LC observed that Parliament would legislate only for the purpose of bringing about an effective result. Its intention can ordinarily be taken to be that an enactment, when brought into force, will not be futile but will have practical consequences for the life of the community. And it is for Parliament, not the Executive – unless Parliament confers the necessary power upon it – to determine when an enactment comes into force.
And: ‘a free citizen, in the exercise of his freedom, is entitled to choose the employer whom he promises to serve . .’
Lord Porter observed: ‘Having regard to these considerations I find myself thrown back upon a consideration of the meaning to be placed on the word ‘property’ in sub-s 1 (a). Prima facie I should not expect it to include non-transferable contracts. In truth the word ‘property’ is not a term of art but takes its meaning from its context and from its collocation in the document or Act of Parliament in which it is found and from the mischief with which that Act or document is intended to deal. The word is used in many Acts of Parliament but I propose to confine myself to the Companies Acts themselves. The Companies (Consolidation) Act, 1908, s 122 and following sections, and the Companies Act, 1929, s 156 and following sections, deal with winding-up. Sect 151, sub-s 2, of the former Act enacts that: ‘(2) The liquidator in a winding up by the Court shall have power, but (subject to the provisions of this section) in the case of a winding up in Scotland or Ireland only with the sanction of the court, – (a) to sell the real and personal property, and things in action of the company by public auction or private contract, with power to transfer the whole thereof to any person or company, or to sell the same in parcels: . . (g) to do all such other things as may be necessary for winding up the affairs of the company and distributing its assets.’
Sect 189 of the latter Act contains similar provisions. In neither case has it ever, so far as I know, been suggested that ‘property’ included anything other than property of which the company then in course of being wound up could dispose.’

Viscount Simon LC, Lord Thankerton, Lord Atkin, Lord Porter, Lord Romer
[1940] AC 1014, [1940] 3 All ER 549, [1940] 3 Al 1
Companies Act 1929 154
England and Wales
Cited by:
Cited – Unison v Allen and others EAT 26-Jul-2007
EAT Equal pay Act – Out of time
The claimants before the Employment Tribunal alleged that when they were employed by NUPE, that union had breached their rights under the Equal Pay Act in connection with . .
Cited – Biffa Waste Services Ltd and Another v Maschinenfabrik Ernst Hese Gmbh and others CA 12-Nov-2008
The defendant contracted to build a plant for the claimant. The plant was damaged by a fire caused by the defendant’s independent sub-contractor. The defendant appealed against the finding that it was responsible for the sub-contractor’s failure. . .
Cited – RM v The Scottish Ministers SC 28-Nov-2012
The pursuer was held in a secure mental hospital. When moved to a highersecurity section, he challenged the move. He lost but then was unable to make an apeal as allowed iunder the 2003 Act because the Scottish Parliament had not created the . .

Lists of cited by and citing cases may be incomplete.

Employment, Company, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.280083

Quinn v Leathem: HL 5 Aug 1901

Unlawful Means Conspiracy has two forms

Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union put pressure on Munce, a wholesale customer of Leathem, to stop buying his meat. It also called out Dickie, one of Leathem’s employees. The jury found for Leathem, holding that there had been a malicious conspiracy between Quinn and other officers of the union. The Irish Court of Appeal affirmed this.
Held: The appeal failed. A conspiracy ‘wrongfully and maliciously’ to induce customers and servants of the plaintiff not to deal with him was actionable on proof of damage. Though the coming together of a group of people is lawful, even though it results in injury to the interests of others, such an agreement for no purpose other than the pursuit of a malicious purpose to injure another would be unlawful. Any violation of legal rights, including rights under contract, committed knowingly and without justification, is a tortious act.
Lord MacNaghten said of Lumley v Gye: ‘I have no hesitation in saying that I think the decision was right, not on the ground of malicious intention – that was not, I think, the gist of the action – but on the ground that a violation of a legal right committed knowingly is a cause of action, and that it is a violation of legal right to interfere with contractual relations recognised by law if there be no sufficient justification for the interference.’
He explained the rationale of the tort as follows: ‘a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact-in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.’
Lord Lindley said that Lumley v Gye tort was an example of causing loss by unlawful means: ‘If the above reasoning is correct, Lumley v. Gye was rightly decided, as I am of opinion it clearly was. Further, the principle involved in it cannot be confined to inducements to break contracts of service, or indeed to inducements to break any contracts. The principle which underlies the decision reaches all wrongful acts done intentionally to damage a particular individual and actually damaging him.’ and
‘a person’s liberty or right to deal with others is nugatory, unless they are at liberty to deal with him if they choose to do so. Any interference with their liberty to deal with him affects him. If such interference is justifiable in point of law, he has no redress. Again, if such interference is wrongful, the only person who can sue in respect of it is, as a rule, the person immediately affected by it; another who suffers by it has usually no redress; the damage to him is too remote, and it would be obviously practically impossible and highly inconvenient to give legal redress to all who suffer from such wrongs. But if the interference is wrongful and is intended to damage a third person, and he is damaged in fact – in other words, if he is wrongfully and intentionally struck at through others, and is thereby damnified – the whole aspect of the case is changed: the wrong done to others reaches him, his rights are infringed although indirectly, and damage to him is not remote or unforeseen, but is the direct consequence of what has been done.’
Lord Shand distinguished Allen v Flood: ‘As to the vital distinction between Allen v Flood and the present case, it may be stated in a single sentence. In Allen v Flood the purpose of the defendant was by the acts complained of to promote his own trade interest, which it was held he was entitled to do, although injurious to his competitors, whereas in the present case, while it is clear there was combination, the purpose of the defendants was ‘to injure the plaintiff in his trade as distinguish from the intention of legitimately advancing their own interest.”
Earl of Halsbury LC said: ‘. . a case is only an authority for what it actually decides.’

Lord Shand, Lord Macnaghten, Lord Lindley, Earl of Halsbury LC
[1901] AC 495, [1901] UKHL 2
Bailii
England and Wales
Citing:
Distinguished – Allen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .

Cited by:
Cited – OBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – GWK Ltd v Dunlop Rubber Co Ltd 1926
GWK company made motor cars and the ARM company made tyres. GWK contracted to fit all their new cars with ARM tyres and to show them with ARM tyres at trade exhibitions. On the night before a motor show in Glasgow, Dunlop employees removed the ARM . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Torquay Hotel v Cousins CA 17-Dec-1968
The plaintiff contracted to buy oil for his hotel from Esso. Members of the defendant trades union blocked the deliveries of oil by Esso to the Hotel because of a trade dispute they had with the management of the hotel. The hotel sued for an . .
Cited – Close v Steel Company of Wales Ltd 1962
The pursuer sought damages after injury arising from the use of a tool for a purpose other than that for which it was intended to be used. Lord Denning quoted Sir Frederick Pollock to say: ‘Judicial authority belongs not to the exact words used in . .
Cited – Air Canada and Others v Emerald Supplies Limited and Others CA 14-Oct-2015
Appeal against case management directions given by Peter Smith J. . .
Cited – Youngsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .
Cited – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Cited – Secretary of State for Health and Another v Servier Laboratories Ltd and Others SC 2-Jul-2021
Economic tort of causing loss by unlawful means
The Court was asked whether the ‘dealing requirement’ is a constituent part of the tort of causing loss by unlawful means; whether a necessary element of the unlawful means tort is that the unlawful means should have affected the third party’s . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Contract, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.223001

Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others: CA 2 Dec 2008

The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had been denied to them, and that the constitution did not achieve a sufficient separation of powers.
Held: The roles of the Seigneur and Senescahl did not infringe the Article 3 rights to free expression, though the position of the Seneschal being unqualified and acting in a judicial role did infringe article 6(1) rights. It was not a breach of article 3 to fail to grant to aliens, as defined in the Reform Law, the right to stand for election to Chief Pleas and neither article 14 nor EU law assisted the appellants.
Etherton LJ (dissenting on this point) thought the position of the Seneschal also infringed the claimants article 3 rights.

Pill LJ, Jacob LJ, Etherton J
[2008] EWCA Civ 1319, Times 05-Dec-2008, [2009] 2 WLR 1205, [2009] UKHRR 344
Bailii
Human Rights Act 1998 4(2), European Convention on Human Rights 3 6(1) 56, British Nationality Act 1981 50(1)
England and Wales
Citing:
Appeal from – Barclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
Cited – Mathieu Mohin and Clerfayt v Belgium ECHR 2-Mar-1987
(Plenary Court) The court described and approved the way in which an ‘institutional’ right to vote had developed into ‘subjective rights of participation – the ‘right to vote’ and the ‘right to stand for election’.’ It described the ambit of Article . .
Cited – Starrs and Chalmers and Bill of Advocattion for Procurator Fiscal, Linlithgow v Procurator Fiscal, Linlithgow and Hugh Latta Starrs and James Wilson Chalmers; Starrs v Ruxton, Ruxton v Starrs ScHC 11-Nov-1999
The system in Scotland whereby lesser judges were appointed by the executive, for a year at a time, and could be discharged without explanation or challenge, meant that they could be seen not to be independent, and the system was a breach of the . .
Cited – Gaygusuz v Austria ECHR 16-Sep-1996
The applicant was a Turkish national resident in Austria. While working there he had paid unemployment insurance contributions. At a stage when he was unemployed he applied for an advance on his pension in the form of emergency assistance. That was . .
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 – N v Secretary of State for the Home Department HL 5-May-2005
The applicant had sought asylum here, but her application was rejected. She was suffering advanced HIV/AIDS. With continued proper treatment she would survive several years. If returned to Uganda she would not receive that treatment and would not . .
Cited – Py v France ECHR 11-Jan-2005
The claimant, a French national wished to vote in a French overseas territory. Registration was refused because he had not been permanently resident for ten years. The local administration was concerned that ballots should reflect the will of the . .
Cited – Aziz v Cyprus ECHR 22-Jun-2004
Depriving a Turkish Cypriot living in the Government-controlled area of Cyprus of the right to vote was a breach of article 3. However: ‘States enjoy considerable latitude to establish rules within their constitutional order governing . . the . .
Cited – McGonnell v The United Kingdom ECHR 8-Feb-2000
The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a . .
Cited – Pabla Ky v Finland ECHR 22-Jun-2004
A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to . .
Cited – Millar v Dickson PC 24-Jul-2001
The Board was asked whether the appellants had waived their right to an independent and impartial tribunal under article 6 of the Convention by appearing before the temporary sheriffs without objecting to their hearing their cases on the ground that . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Moustaquim v Belgium ECHR 18-Feb-1991
The applicant was a Moroccan national who arrived in Belgium in 1965 when he was aged under 2. In 1984, nineteen years later, after a career of juvenile crime, he was deported, but the deportation order was suspended in 1989 and he returned to . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – Incal v Turkey ECHR 9-Jun-1998
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 10; Violation of Art. 6-1 (independent and impartial tribunal); Not necessary to examine Art. 6-1; Not necessary to examine Art. 14+6-1; Pecuniary . .

Cited by:
Appeal From – 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.
Constitutional, Human Rights, European

Updated: 01 November 2021; Ref: scu.278346

Attorney General of Hong Kong v Ng Yuen Shiu: PC 21 Feb 1983

An illegal entrant into Hong Kong claimed that he was entitled by a legitimate expectation to a hearing before a deportation order might be made against him, there having been an announcement that persons in the respondent’s position would be interviewed.
Held: The court discussed legitimate expectation: ‘The expectations may be based upon some statement or undertaking by, or on behalf of, the public authority which has the duty of making the decision, if the authority has, through its officers, acted in way that would make it unfair or inconsistent with good administration for him to be denied such an inquiry.’ and ‘The justification for it is primarily that, when a public authority has promised to follow a certain procedure, it is in the interests of good administration that it should act fairly and should implement its promise, so long as implementation does not interfere with its statutory duty. ‘

Lord Fraser of Tullybelton
[1983] 2 AC 629, [1983] UKPC 2, [1983] UKPC 7, [1983] 2 All ER 346, [1983] 2 WLR 735
Bailii, Bailii
Commonwealth
Citing:
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 by:
Cited – Bloggs 61, Regina (on the Application of) v Secretary of State for the Home Department CA 18-Jun-2003
The applicant sought review of a decision to remove him from a witness protection scheme within the prison. He claimed that having been promised protection, he had a legitimate expectation of protection, having been told he would receive protection . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Administrative, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.187438

In re Athlumney: 1898

Wright J said: ‘Perhaps no rule of construction is more firmly established than this – that a retrospective operation is not to be given to a statute so as to impair an existing right or obligation, otherwise than as regards matter of procedure, unless that effect cannot be avoided without doing violence to the language of the enactment. If the enactment is expressed in language which is fairly capable of either interpretation, it ought to be construed as prospective only.’

Wright J
[1898] 2 QB 547
England and Wales
Cited by:
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 of its property . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.184436

Pickin v British Railways Board: HL 30 Jan 1974

Courts Not to Investigate Parliament’s Actions

It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: When an enactment is passed there is finality unless and until it is amended or repealed by Parliament.
Lord Morris of Borth-y-Gest said: ‘It must surely be for Parliament to lay down the procedures which are to be followed before a bill can become an Act. It must be for Parliament to decide whether its decreed procedures have in fact been followed. It must be for Parliament to lay down and to construe its standing orders and further to decide whether they have been obeyed; it must be for Parliament to decide whether in any particular case to dispense with compliance with such orders. It must be for Parliament to decide whether it is satisfied that an Act should be passed in the form and with the wording set out in the Act. It must be for Parliament to decide what documentary material or testimony it requires and the extent to which Parliamentary privilege should attach. It would be impracticable and undesirable for the High Court of Justice to embark on an enquiry concerning the effect or the effectiveness of the internal procedures in the High Court of Parliament or an enquiry whether in any particular case those procedures were effectively followed. Clear pronouncements on the law are to be found in a stream of authorities in the 19th century’ and ‘it is the function of the courts to administer the laws which Parliament has enacted. In the processes of Parliament there will be much consideration whether bill should or should not in one form or another become an enactment. When an enactment is passed there is finality unless and until it is amended or repealed by Parliament. In the courts there may be argument as to the correct interpretation of the enactment: there must be none as to whether it should be on the statute book at all.’
Lord Simon of Glaisdale said: ‘It is well known that in the past there have been dangerous strains between the law courts and Parliament – dangerous because each institution has its own particular role to play in our constitution, and because collision between the two institutions is likely to impair their power to vouchsafe those constitutional rights for which citizens depend on them. So for many years Parliament and the courts have each been astute to respect the sphere of action and the privileges of the other – Parliament, for example, by its sub judice rule, the courts by taking care to exclude evidence which might amount to infringement of parliamentary privilege (for a recent example, see Dingle v Associated Newspapers Ltd [1960] 2 QB 405) . . A further practical consideration is that if there is evidence that Parliament may have been misled into an enactment, Parliament might well – indeed, would be likely to – wish to conduct its own enquiry. It would be unthinkable that two enquiries – one parliamentary and the other forensic – should proceed concurrently, conceivably arriving at different conclusions; and a parliamentary examination of parliamentary procedures and of the actions and understandings of officers of Parliament would seem to be clearly more satisfactory than one conducted in a court of law quite apart from considerations of parliamentary privilege.’
Lord Reid said: ‘The function of the court is to construe and apply the enactments of Parliament. The court has no concern with the manner in which Parliament or its officers carrying out its standing orders perform these functions. Any attempt to prove that they were misled by fraud or otherwise would necessarily involve an enquiry into the manner in which they performed their functions in dealing with the Bill which became the British Railways Act 1968.’ and ‘For a century or more both Parliament and the courts have been careful not to act so as to cause conflict between them. Any such investigations as the respondent seeks could easily lead to such a conflict and I would only support it if compelled to do so by clear authority. But it appears to me that the whole trend of authority for over a century is clearly against permitting any such investigation.’

Lord Morris of Borth-y-Gest, Lord Simon of Glaisdale, Lord Reid
[1974] AC 765, [1974] UKHL 1, [1974] 1 All ER 609
Bailii
England and Wales
Citing:
Approved – Edinburgh and Dalkeith Railway Company v Wauchope HL 22-Mar-1842
The company had, under authority of a private statute, built a railway which passed across land belonging to the defendant. They were to pay a sum for the goods carried. At first they sought to collect a toll, but his proved unprofitable. The . .
Cited – Dingle v Associated Newspapers CA 1961
A defamation of the claimant had been published and then repeated by others.
Held: The court discussed the logical impossibility of apportioning damage between different tortfeasors: ‘Where injury has been done to the plaintiff and the injury . .
Cited – Lee v Bude and Torrington Junction Railway Co 1871
It was alleged that Parliament had been induced to pass an Act by fraudulent recitals.
Held: Willes J said: ‘Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such . .
Cited – The Earl Of Shrewsbury v James Robert Hope Scott And Others CCP 9-Jun-1859
Cockburn CJ said: ‘These observations illustrate the question which is now before us, and make it clear that, if an act of parliament, by plain, unambiguous, positive enactment, affects the rights even of parties who were not before the House (those . .

Cited by:
Cited – The Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
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 – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – 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 – Jackson and others v Attorney General HL 13-Oct-2005
The applicant sought to challenge the 2004 Hunting Act, saying that it had been passed under the provisions of the 1949 Parliament Act which was itself an unlawful extension of the powers given by the 1911 Parliament Act to allow the House of . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Manuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
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 – 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 – HS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
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 – References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills were Outwith Parliament’s Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.187511

British Coal Corporation v The King: PC 1935

The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute which prohibited such appeals, this class of appeal was external to Canada, so that the Canadian legislature had no power to make provision affecting it.
Held: The Canadian legislature had power to prohibit appeals to the King in Council in criminal matters and that the petition before it was therefore incompetent.
It was to the King that any subject who had failed to get justice in the King’s Court brought his petition for redress, a petition brought to the King in Parliament or to the King in his Chancery.
Viscount Sankey LC set out the historical background of the Judicial Committee of the Privy Council. Its origins lay in the procedure whereby a party aggrieved by a decision of the Courts of the Channel Islands (and, later, by a decision of the Courts of the Plantations and Colonies) might petition the King in Council to exercise in his favour the sovereign’s royal prerogative as the fountain of justice. In a domestic context such petitions were brought to the King in Parliament (being the origin of the judicial functions of the House of Lords which are soon to be abolished) or to the King in Chancery (from which flowed the jurisdiction of the Court of Chancery).
The procedure for petitioning the King in Council had become loosely described as an appeal by the time the Judicial Committee Act 1833 was enacted. That Act created the Judicial Committee of the Privy Council as a statutory body. It provided that ‘all appeals or complaints in the nature of appeals whatever’ which had previously been brought before His Majesty in Council would now be referred by His Majesty to the Judicial Committee. Although the powers of the committee were limited to making a report or recommendations to His Majesty in Council, Viscount Sankey said that according to constitutional convention it was unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee ‘who are thus in truth an appellate court of law’.
Viscount Sankey LC said: ‘Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities.’ and ‘It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute.’

Viscount Sankey LC
[1935] AC 500, [1935] All ER Rep 139, [1935] UKPC 33
Bailii
Statute of Westminster 1931 4
Canada
Cited by:
Cited – The Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
Cited – Manuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
Cited – Manuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
Cited – David Grant v Director of Correctional Services and Another; The Director of Public Prosecutions PC 14-Jun-2004
(Jamaica) The defendant had pleaded guilty to drugs offences in the US, and had fled to Jamaica. He appealed against a refusal of Habeas Corpus having been arrested and held for extradition. The Board considered its jurisdiction to hear such an . .
Cited – Seaga v Harper (No 2) PC 29-Jun-2009
No conditional fees without country approval
(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.199435

Cooper v HM Attorney General: QBD 30 Sep 2008

The claimant sought damages from the court saying that it had failed to properly apply European law. It had rejected his applications for judicial review.
Held: Any failure by the court was not sufficiently manifest to bring the case within Kobler, and the claim failed.

[2008] EWHC 2178 (QB), Times 07-Oct-2008, [2008] 3 CMLR 45, [2009] Eu LR 174, [2009] JPL 619
Bailii
England and Wales
Citing:
Cited – Regina v Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .

Lists of cited by and citing cases may be incomplete.

European, Planning, Constitutional

Updated: 01 November 2021; Ref: scu.276807

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 breaching the rule against impugning an action of Parliament. The minister had made a statement as to the disclosability of the documents.
Stanley Burnton J said: ‘the law of Parliamentary privilege is essentially based on two principles. The first is the need to avoid any risk of interference with free speech in Parliament. The second is the principle of the separation of powers, which in our Constitution is restricted to the judicial function of government, and requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature. These basic principles lead to the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts.
Conflicts between Parliament and the Courts are to be avoided. The above principles lead to the conclusion that the Courts cannot consider allegations of impropriety or inadequacy or lack of accuracy in the proceedings of Parliament. Such allegations are for Parliament to address, if it thinks fit, and if an allegation is well-founded any sanction is for Parliament to determine. The proceedings of Parliament include Parliamentary questions and answers. These are not matters for the Courts to consider.’
However: ‘There is no reason why the Courts should not receive evidence of the proceedings of Parliament when they are simply relevant historical facts or events: no ‘questioning’ arises in such a case . . Similarly, it is of the essence of the judicial function that the Courts should determine issues of law arising from legislation and delegated legislation. Thus, there can be no suggestion of a breach of Parliamentary privilege if the Courts decide that legislation is incompatible with the European Convention on Human Rights: by enacting the Human Rights Act 1998.’ and ‘it would be better if Parliamentary questions are not answered by a Ministerial statement as to the result of the application of FOIA to a particular case.’ The Commissioner had been wrong to take account of parliamentary questions, and should have avoided a potential breach of parliamentary privilege. It is both implicit and explicit in FOIA that, in the absence of a public interest in preserving confidentiality, there is a public interest in the disclosure of information held by public authorities.

Stanley Burnton J
[2008] EWHC 737 (Admin), [2009] 3 WLR 627, [2008] ACD 54, [2010] QB 98
Bailii
Freedom of Information Act 2000 33(1)(a), Bill of Rights 1689 9, Parliamentary Privileges Act 1987 16(3)(c)
England and Wales
Citing:
Cited – Comalco Ltd v Australian Broadcasting Corporation 1983
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: ‘I think that the way in . .
Mentioned – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Cited – 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 – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Cited – Bradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions CA 7-Feb-2008
Complaint was made as to a leaflet PEC 3 issued by the Department in 1996, intended to summarise the changes introduced by the Pensions Act 1995, and their purpose. One answer given was: ‘The Government wanted to remove any worries people had about . .
Cited – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Toussaint v Attorney General of Saint Vincent and the Grenadines PC 16-Jul-2007
(Saint Vincent and the Grenadines) The claimant complained of the compulsory purchase of his land. He alleged that the compulsory purchase was discriminatory or illegitimate expropriation: an allegation of impropriety. He sought to base this on . .
Cited – Federation of Tour Operators and Others, Regina (on the Application of) v HM Revenue and Customs and others Admn 4-Sep-2007
The claimants complained that the sudden doubling of Airport Passenger Duty was unlawful since it had not been possible to recover this from customers, and was in breach of the Convention.
Held: The claim failed. The cost to the applicants as . .
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 by:
Cited – HM Treasury v The Information Commissioner Admn 21-Jul-2009
Disclosure of Government’s Legal Advice
The interested party sought to obtain the legal opinion on which the Prime Minister had based his assertion that the Financial Services and Markets Bill complied with Human Rights. The respondent refused claiming protection under the section, and . .
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 – 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 – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
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. . .

Lists of cited by and citing cases may be incomplete.

Information, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.266618

Tai Hing Ltd v Liu Chong Hing Bank: PC 1985

(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless negligence or other disentitling conduct of the customer precludes the customer’s claim. No wider duty should be imposed on the customer beyond a duty not to act in a way that facilitates forgery and to make the bank aware of any known forgeries occurred: ‘The business of banking is the business not of the customer but of the bank. They offer a service, which is to honour their customer’s cheques when drawn upon an account in credit or within an agreed overdraft limit. If they pay out upon cheques which are not his, they are acting outside their mandate and cannot plead his authority in justification of their debit to his account. This is a risk of the service which it is their business to offer.’
The Board considered the need for the Board to follow earlier decisions of the House of Lords: ‘It was suggested, though only faintly, that even if English courts are bound to follow the decision in Macmillan’s case the Judicial Committee is not so constrained. This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 of July 1966 pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House. And their Lordships note, in passing, the Statement’s warning against the danger from a House of Lords’ decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords’ decision.’

Lord Scarman
[1985] 2 All ER 947, [1985] 2 Lloyds Rep 313, [1985] 3 WLR 317, [1986] AC 80, [1985] UKPC 22
Bailii
England and Wales
Citing:
Cited – Liverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .

Cited by:
Cited – Yorkshire Bank plc v Lloyds Bank plc CA 12-May-1999
A customer of the plaintiff, sent a cheque to the defendant, with an application for shares. The cheque was stolen whilst in the defendant’s custody, but the plaintiff at first debited the account, then re-credited the balance. The claim failed . .
Cited – Sandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – Donington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
Cited – Blackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
See Also – Tai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd PC 5-Feb-1986
(Hong Kong) The Boad considered the costs payable for counsel on an appeal to the Board from Hong Kong . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.238119

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 remove the requirement for confirmation and to add to the list of legislation which might be brought in without confirmation. The latter power was now challenged.
Held: The Bill was valid; the Assembly had the legislative competence to enact sections 6 and 9 of the Bill. The primary purpose of the Bill could not be achieved without the powers. The removal of the confirmatory powers for the scheduled enactments would be only incidental to, and consequential on, the primary purpose of removing the need for confirmation by the Welsh Ministers of any byelaw made under the scheduled enactments. The powers were to be exercised by either the English or Welshminister Secretaries of State, and alone if need be at any time.

Lord Neuberger, President, Lord Hope, Deputy President, Lord Clarke, Lord Reed, Lord Carnwath
[2012] UKSC 53, [2012] WLR(D) 341, [2012] 3 WLR 1294, UKSC 2012/0185, [2013] 1 AC 792, [2013] 1 All ER 1013
Bailii, Bailii Summary, SC Summary, SC, WLRD
Government of Wales Act 2006 112, Government of Wales Act 1998, Local Government Act 1972, The National Assembly for Wales (Transfer of Functions) Order 1999, Supreme Court Rules 2009 41
England and 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 – A v The Scottish Ministers PC 15-Oct-2001
(Scotland) The power to detain a person suffering from a mental illness, in order to ensure the safety of the public, and even though there was no real possibility of treatment of the mental condition in hospital, was not a disproportionate . .
Cited – Adams and Others v Lord Advocate IHCS 31-Jul-2002
(Opinion) The applicants challenged the introduction of restrictions of hunting by foxes, arguing that the law would infringe their human rights.
Held: The Act was not infringing. Fox hunting as such was not a private activity protected by the . .
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 by:
Cited – References (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills were Outwith Parliament’s Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Local Government, Wales

Leading Case

Updated: 02 November 2021; Ref: scu.465936

Odelola v Secretary of State for the Home Department: HL 20 May 2009

The appellant had applied for leave to remain as a postgraduate doctor. Before her application was determined, the rules changed. She said that her application should have been dealt with under the rules applicable at the time of her application.
Held: The appeal failed. The decision was to be taken under the Rules applying at the time of the decision and not when the application was made. There is a danger of circularity in arguments as to a presumption against retrospective effect. Immigration Rules are not subordinate legislation made under any enactment, but ministerial statements as to the exercise of an executive power. If retrospectivity had applied to these rules, the applicant would in any event have had no vested right to be protected at the time when she made the applications.
Lord Hoffmann said that the correct interpretation of paras 352A and 352D: ‘Like any other question of construction, this depends upon the language of the rule, construed against the relevant background. That involves a consideration of the immigration rules as a whole and the function which they serve in the administration of immigration policy.’
Lord Hope said: ‘The status of the immigration rules is rather unusual. They are not subordinate legislation but detailed statements by a minister of the Crown as to how the Crown proposes to exercise its executive power to control immigration. But they create legal rights: under s.84(1) of the Nationality, Immigration and Asylum Act 2002, one may appeal against an immigration decision on the ground that it is not in accordance with the immigration rules.’

Lord Hope of Craighead, Lord Hoffmann, Lord Scott of Foscote, Lord Brown of Eaton-under-Heywood, Lord Neuberger of Abbotsbury
[2009] UKHL 25, [2009] 1 WLR 1230, [2009] 3 All ER 1061
Bailii, Times
Statement of Changes in Immigration Rules 2006 (HC 1016)
England and Wales
Citing:
Cited – Regina v IAT ex parte Nathwani QBD 1979
The most natural reading of a ministerial statement as to immigration rules is that (in the absence of any statement to the contrary) they will apply to the decisions made until different rules are promulgates, after which decisions will be made . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Cited – L’Office Cherifien Des Phosphates and Another v Yamashita-Shinnihon Steamship Co Ltd HL 19-Jan-1994
The subject matter of statutes is so varied that generalised maxims are not a reliable guide. An arbitrator can dismiss a claim for inordinate and inexcusable delay, even where this had arisen before the Act which created the power.
Lord . .
Appeal from – Odelola v Secretary of State for the Home Department CA 10-Apr-2008
The claimant applied for leave to remain in the United Kingdom as a postgraduate doctor. The immigration rules which had been laid before Parliament in accordance with section 3(2) of the 1971 Act and which were current at the time of her . .
Cited – HS (Long Residence, Effect of Idi September 2004) Pakistan AIT 1-Dec-2005
AIT The provisions of IDI September 2004 do not set out a published policy providing a concession in the application of the provisions of paragraph 276B(i)(b) of HC395 when assessing a claim based on long . .
Cited – Chief Adjudication Officer and Another v Maguire CA 23-Mar-1999
A claimant who had satisfied the conditions required to become eligible for special hardship allowance but who had yet made no claim, retained his right to the allowance after the Act under which the claim might be brought was repealed. ‘A mere hope . .
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 of its property . .
Cited – Secretary of State for Social Security v Tunnicliffe CA 1991
Staughton LJ explained the presumption against interpretation of a statute to have retrospective effect: ‘the true principle is that Parliament is presumed not to have intended to alter the law applicable to past events and transactions in a manner . .

Cited by:
Cited – Mahad (Previously referred to as AM) (Ethiopia) v Entry Clearance Officer SC 16-Dec-2009
The claimants each sought entry to be with members of their family already settled here. The Court was asked whether the new Immigration Rules imposed a requirement which permitted third party support by someone other than the nominated sponsor.
Cited – ZN (Afghanistan) and Others v Entry Clearance Officer (Karachi) SC 12-May-2010
The Court was asked what rules apply to family members seeking entry to the United Kingdom, where the sponsor was given asylum and then obtained British citizenship. The ECO had said that the ordinary family members rules applied, where the . .
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 – FA (Iraq) v Secretary of State for The Home Department CA 18-Jun-2010
The claimant had applied both for asylum and humanitarian protection. Both claims had been rejected, but he was given leave to stay in the UK for a further year. He now sought to appeal not only against the rejection of the asylum claim but also the . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Munir and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimants were subject to deportation, but had settled here and begun a family. An earlier concession would have allowed him to stay, but it was withdrawn. The court was now asked whether statements by the Secretary of State of her policy as . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department Admn 25-Oct-2010
The claimant, a 32 year old Pakistani national, had been refused leave to remain as a Tier 2 (General) Migrant worker. He had worked as a physiotherapy assistant, and said that this should have entitled him to 50 points under the assessment system. . .
Cited – Alvi, Regina (on The Application of) v Secretary of State for The Home Department SC 18-Jul-2012
The claimant had entered as a student, and then stayed under a work permit. New rules were brought in, and because his occupation as a physiotherapy assistant was not listed, he was not credited with sufficient points for a permit. The Court of . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department SC 17-Jul-2013
The Court was asked as to: ‘the system for licensing educational institutions to sponsor students from outside the European Economic Area under Tier 4 of the current points-based system of immigration control.’ The appellant’s license to sponsor . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .

Lists of cited by and citing cases may be incomplete.

Immigration, Administrative, Constitutional

Updated: 02 November 2021; Ref: scu.346224

Da Costa En Schaake Nv, Jacob Meijer Nv, Hoechst-Holland Nv v Netherlands Inland Revenue Administration: ECJ 27 Mar 1963

ECJ (Preliminary Ruling ) 1. The obligation imposed by the third paragraph of article 177 of the EEC Treaty upon national courts or tribunals of last instance may be deprived of its purpose by reason of the authority of an interpretation already given by the court under article 177 in those cases in which the question raised is materially identical with a question which has already been the subject of a preliminary ruling in a similar case.
2. When giving a ruling within the framework of article 177, the court limits itself to deducing the meaning of community rules from the wording and the spirit of the treaty, it being left to the national court to apply in the particular case the rules which are thus interpreted.
3. Article 177 always allows a national court or tribunal, if it considers it appropriate, to refer questions of interpretation to the court again even if they have already formed the subject of a preliminary ruling in a similar case.

R-30/62, [1963] EUECJ R-30/62, (1963) 2 CMLR 224
Bailii
EEC Treaty 177
European
Cited by:
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.214017

Regina v Secretary of State for Transport, Ex parte Factortame Ltd: HL 18 May 1989

The applicants were companies owned largely by Spanish nationals operating fishing vessels within UK waters. The 1988 Act required them to re-register the vessels as British fishing vessels. The sought suspension of enforcement pending a reference to the European Court.
Held: This was dispute in law, and an English Court did not have power to suspend operation of an Act of Parliament pending a decision of the European or other court. The provision of effective interim relief should also be referred to the European Court of justice.

Lord Bridge of Harwich, Lord Brandon of Oakbrook, Lord Oliver of Aylmerton, Lord Goff of Chieveley, Lord Jauncey of Tullichettle
[1989] UKHL 1, [1990] 2 AC 85, [1989] 2 WLR 997, [1989] 3 CMLR 1, [1989] COD 531, [1989] 2 All ER 692
Bailii
European Communities Act 1972 2, Merchant Shipping Act 1988 14, Merchant Shipping (Registration of Fishing Vessels) Regulations 1988
England and Wales
Cited by:
Referral from – Regina v Secretary of State for Transport, ex parte Factortame ECJ 19-Jun-1990
ECJ It is for the national courts, in application of the principle of cooperation laid down in Article 5 of the EEC Treaty, to ensure the legal protection which persons derive from the direct effect of provisions . .
See Also – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Autologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
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 – Hurst, Regina (on the Application of) v Commissioner of Police of the Metropolis v London Northern District Coroner HL 28-Mar-2007
The claimant’s son had been stabbed to death. She challenged the refusal of the coroner to continue with the inquest with a view to examining the responsibility of any of the police in having failed to protect him.
Held: The question amounted . .
See Also – Regina v Secretary of State for Transport ex parte Factortame Ltd HL 26-Jul-1990
(Interim Relief Order) . .
See Also – Regina v Secretary of State for Transport, ex parte Factortame Ltd and others (No 5) HL 28-Oct-1999
A member state’s breach of European Law, where the law was clear and the national legislation had the effect of discriminating unlawfully against citizens of other members states, was sufficiently serious to justify an award of damages against that . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.229082

Regina v Secretary of State for the Home Department Ex parte Anderson: HL 25 Nov 2002

The appellant had been convicted of double murder. The judge imposed a mandatory life sentence with a minimum recommended term. The Home Secretary had later increased the minimum term under the 1997 Act. The appellant challenged that increase.
Held: The increase in the minimum term to be served was an increase in the sentence. A mandatory life sentence was not to be distinguished for this purpose from a discretionary life sentence. The tariff-fixing procedure is not a statutory creature, and had to be looked at in substance not in form. Such an act carried out by the executive was an unacceptable blurring of the separation of powers. An act of sentencing could only be done by a court. In addition, the arrangement was in breach of the appellant’s right to have his sentence determined by a court, and a declaration of incompatibility of the section was made. A whole life tariff need not be inconsistent with a defendant’s human rights when properly imposed.
As to the relationship of the House of the ECHR, the House of Lords ‘will not without good reason depart from the principles laid down in a carefully considered judgment of the Grand Chamber.’

Bingham of Cornhill, Nicholls of Birkenhead, Steyn, Hutton, Hobhouse of Woodborough, Scott of Foscote, Rodger of Earlsferry, LL
Times 26-Nov-2002, Gazette 23-Jan-2003, [2002] UKHL 46, [2002] 3 WLR 180, [2003] 1 AC 837, [2003] HRLR 7, (2003) 13 BHRC 450, [2003] UKHRR 112, [2003] 1 Cr App R 32, [2002] 4 All ER 1089
House of Lords, Bailii
Murder (Abolition of Death Penalty) Act 1965 1(1), European Convention on Human Rights Art 6(1), Crime (Sentences) Act 1997 29
England and Wales
Citing:
Applied – Stafford v The United Kingdom ECHR 28-May-2002
Grand Chamber – The appellant claimed damages for being held in prison beyond the term of his sentence. Having been released on licence from a life sentence for murder, he was re-sentenced for a cheque fraud. He was not released after the end of the . .
Cited – Benjamin and Wilson v The United Kingdom ECHR 26-Sep-2002
The applicant challenged the system in the UK of deciding on his release from a secure mental hospital. He had been a discretionary life prisoner, but then later his detention was continued because of his mental condition. Though an independent . .
Appeal from – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .

Cited by:
Cited – Regina v Lichniak HL 25-Nov-2002
The appellants challenged the mandatory sentence of life imprisonment imposed on them on their convictions for murder. They said it was an infringement of their Human Rights, being arbitrary and disproportionate.
Held: The case followed on . .
Appeal to – Regina (Anderson) v Secretary of State for the Home Department; Regina (Taylor) v Same CA 13-Nov-2001
The applicants had been convicted of murder. The Home Secretary had to fix sentence tariffs for their release. They contended that it was a breach of their rights for that tariff to be set by a politician. The distinction was made between offences . .
Cited – Regina on the Application of Clift v Secretary of State for the Home Department Admn 13-Jun-2003
The claimant had been sentenced to 18 years imprisonment. He challenged the differing treatment for parole purposes of those sentenced to more than 15 years, as infringing his human rights, insofar as the decision was retained by the Home Secretary. . .
Cited – McFetrich, Regina (on the Application of) v Secretary of State for the Home Department Admn 30-Jun-2003
The defendant had been convicted of murder in Scotland. He requested a transfer to an English prison. The trial judge recommended a tariff of eight years which was eventually set at 12 years by the respondent. That figure also exceeded the maximum . .
Cited – Regina (on the application of R) v Secretary of State for the Home Department QBD 12-Dec-2003
The decision to designate a prisoner with mental difficulties as a ‘technical lifer’ was not a sentencing exercise requiring a right for the issue to be heard before a court, and it remained a decision for the respondent. . .
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 Sullivan; Regina v Gibbs; Regina v Elener; Regina v Elener CACD 8-Jul-2004
The appellants, each convicted of murder, challenged the minimum periods of detention ordered to be served.
Held: As to the starting point for sentencing, judges should have regard to the published practice directions, and not the letter from . .
Cited – Sheldrake v Director of Public Prosecutions; Attorney General’s Reference No 4 of 2002 HL 14-Oct-2004
Appeals were brought complaining as to the apparent reversal of the burden of proof in road traffic cases and in cases under the Terrorism Acts. Was a legal or an evidential burden placed on a defendant?
Held: Lord Bingham of Cornhill said: . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department Admn 25-Nov-2004
The defendant had heard that the sentencing judge would set his sentence tarriff without an oral hearing, and would then give his decision in open court. He sought judicial review.
Held: Review was granted. The availability of a right of . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
Widowers claimed that, in denying them benefits which would have been payable to widows, the Secretary of State had acted incompatibly with their rights under article 14 read with article 1 of Protocol 1 and article 8 of the ECHR.
Held: The . .
Mentioned – Smith, Regina (on the Application of) v Secretary of State for the Home Department HL 28-Jul-2005
The applicant had, as a child been subject to detention during Her Majesty’s pleasure, the sentence being imposed before 30 November 2000. She argued that that sentence should be subject to periodic review despite the term had been fixed by the Lord . .
Cited – Hammond, Regina (on the Application of) v Secretary of State for the Home Department HL 1-Dec-2005
The claimants had been convicted of murder, but their tariffs had not yet been set when the 2003 Act came into effect. They said that the procedure under which their sentence tarriffs were set were not compliant with their human rights in that the . .
Cited – Wilkinson v Kitzinger and others FD 31-Jul-2006
The parties had gone through a ceremony of marriage in Columbia, being both women. After the relationship failed, the claimant sought a declaration that the witholding of the recognition of same-sex marriages recoginised in a foreign jurisdiction . .
Cited – Begum (otherwise SB), Regina (on the Application of) v Denbigh High School HL 22-Mar-2006
The student, a Muslim wished to wear a full Islamic dress, the jilbab, but this was not consistent with the school’s uniform policy. She complained that this interfered with her right to express her religion.
Held: The school’s appeal . .
Cited – Barker, Regina v CACD 24-Oct-2008
The defendant appealed against the minimum term imposed on her under the 2003 Act. She argued that the court should have made allowance for the fact that she had made exceptional progress since arriving in prison.
Held: Caines established that . .
Cited – Bamber, Regina v CACD 14-May-2009
The defendant had been convicted in 1986 of the murder of five members of his adoptive family. The judge had initially recommended a minimum term of 25 years. A later judge had suggested a whole life term. The convictions had been upheld in 2002. . .
Cited – Vinter And Others v The United Kingdom ECHR 9-Jul-2013
(Grand Chamber) The three appellants had each been convicted of exceptionally serious murders, and been sentenced to mandatory life sentences, but with provision that they could not be eligible for early release, making them whole life terms. They . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Criminal Sentencing

Leading Case

Updated: 01 November 2021; Ref: scu.178249

Clientearth, Regina (on The Application of) v Secretary of State for Environment, Food and Rural Affairs: Admn 27 Apr 2017

Pre-election Purdah is not a rule of law

The claimant challenged the delay by the respondent in the publication of a report on proposals for compliance with air quality proposals until after the forthcoming election. The respondent argued that the there was a periof of purdah applied in such circumstances.
Held: The publication could not be further delayed: ‘Purdah is not a principle of law. The guidance from the Cabinet Office, to which I have referred, is directed towards government ministers, other elected officers and officials in central or local government. It is not directed towards the court, nor, consistent with the rule of law, could it be. Purdah does not amend duties imposed on ministers by statute. It does not provide ministers with a defence to proceedings in private or public law. What is set out by the Cabinet Office in the guidance is not law, it is convention. Ordinarily such convention must give way to a duty under statute or an order of the court.’

Garnham J
[2017] EWHC B12 (Admin)
Bailii
England and Wales

Environment, Constitutional

Updated: 01 November 2021; Ref: scu.582145

Horvath v Secretary of State for Environment, Food and Rural Affairs: ECJ 16 Jul 2009

ECJ Common agricultural policy Direct support schemes Regulation (EC) No 1782/ 2003 Article 5 and Annex IV Minimum requirements for good agricultural and environmental condition Maintenance of rights of way Implementation by a Member State Transfer of powers to regional authorities of a Member State Discrimination contrary to Community law
The Court considered a Memorandum of Understanding between the UK government and the Scottish Government assigning to the devolved administration responsibility for the implementation of Community law concerning the common agricultural policy. The relevant EC Regulation empowered Member States to set minimum standards of compliance at national or regional level. Mr Horvath complained that regulations requiring the maintenance by landowners of public rights of way over agricultural land infringed the Community law principle of equality because equivalent obligations had not been imposed by the devolved administration in Scotland. The Advocate-General, in her Opinion, had advised that differences in the way that Community obligations were implemented by different devolved administrations could not be regarded as discriminatory because they ‘cannot be attributed to the conduct of the same public authority’
Held: The Grand Chamber reached the same conclusion, but on a broader basis, namely that such differences were inherent in the distribution of responsibility for implementing Community law among distinct territorial units of government within a Member State. They were therefore no more discriminatory than differences in the way that EU law was implemented by different Member States:
‘As a preliminary point, it should be pointed out that, in conferring on Member States the responsibility of defining minimum GAEC requirements, the Community legislature gives them the possibility of taking into account the regional differences which exist on their territory.
It should be recalled that, when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law, the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State (Joined Cases 51/71 to 54/71 International Fruit Co and Others [1971] ECR 1107, para 4).
Thus, it is settled case-law that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Case C-156/91 Hansa Fleisch Ernst Mundt [1992] ECR I-5567, para 23).
The Court has, in addition, held that, where a regulation empowers a Member State to take implementing measures, the detailed rules for the exercise of that power are governed by the public law of the Member State in question (see (Case 230/78) Eridania-Zuccherifici nazionali and Societa italiana per l’industria degli zuccheri [1979] ECR 2749, para 34, and Case C-313/99 Mulligan and Others [2002] ECR I-5719, para 48).
. . It must nevertheless be examined whether, in those circumstances, the mere fact that the rules establishing GAEC laid down by the regional authorities of the same Member State differ constitutes discrimination contrary to Community law.
. . Where, as in the main proceedings, it is the devolved administrations of a Member State which have the power to define the GAEC minimum requirements within the meaning of article 5 of and Annex IV to Regulation No 1782/2003, divergences between the measures provided for by the various administrations cannot, alone, constitute discrimination. Those measures must, as is clear from para 50 of this judgment, be compatible with the obligations on the Member State in question which stem from that regulation.
In the light of the foregoing, the answer to the second question is that, where the constitutional system of a Member State provides that devolved administrations are to have legislative competence, the mere adoption by those administrations of different GAEC standards under article 5 of and Annex IV to Regulation No 1782/2003 does not constitute discrimination contrary to Community law.’

V. Skouris, P
ECLI:EU:C:2009:458, [2009] 30 EG 66, [2009] ECR I-6355, [2009] EUECJ C-428/07
Bailii
egulation (EC) No 1782/ 2003
Citing:
Opinion – Horvath v Secretary of State for Environment, Food and Rural Affairs ECJ 3-Feb-2009
ECJ (Opinion) Reference for a preliminary ruling from the High Court of Justice of England and Wales (United Kingdom).
‘where the constitutional system of a member state provides that devolved . .

Lists of cited by and citing cases may be incomplete.

European, Agriculture, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.563286

Woolas, Regina (on The Application of) v The Speaker of The House of Commons: Admn 3 Dec 2010

The claimant sought to challenge the decision of an Election court setting aside his election as a Member of Parliament. The court was asked to decide whether it had jurisdiction to review a determination by the Election Court of a point of law, and if so whether that court had correctly decided as to the test of whether a statement had been made ‘in relation to the personal character or conduct’ of his opponent.
Held: The request fro review was refused. The court set out the history of its involvement in election disputes, recording that when, in 1868, it was proposed that election disputes should be referred to the courts, the then Lord Chief Justice, Sir Alexander Cockburn Bt (ironically the country’s leading expert in electoral law), wrote a stern letter of protest to the Lord Chancellor and earned himself an unflattering cartoon in Punch for his pains. All to no avail. If, as Parliament believed, politicians could not be trusted to resolve election disputes fairly, then who was left but the judiciary?

Thomas LJ, Tugendhat J, Nicola Davies J
[2010] EWHC 3169 (Admin), [2011] 2 WLR 1362, [2012] QB 1
Bailii
Representation of the People Act 1983 106(1)
England and Wales
Citing:
See Also – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .

Cited by:
Cited – Erlam and Others v Rahman and Another QBD 23-Apr-2015
The petitioners had alleged that the respondent, in his or his agent’s conduct of his campaign to be elected Mayor for Tower Hamlets in London in May 2014, had engaged in corrupt and illegal practices.
Held: The election was set aside for . .

Lists of cited by and citing cases may be incomplete.

Elections, Constitutional

Updated: 01 November 2021; Ref: scu.427027

Liyanage and others v The Queen: PC 2 Dec 1965

liyanagePC196502

The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the attempted coup in order to criminalise the defendants’ acts: ‘They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the judges, the law should revert to its normal state.’ Hel: These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years’ imprisonment, and compelled to order confiscation of his possessions, even though his part in the conspiracy might have been trivial.
‘If such Acts as these were valid the judicial power could he wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’

Morris of Brth-y-Gest, MacDermott, Guest, Pearson LL
[1965] UKPC 1, [1966] 2 WLR 682, [1967] 1 AC 259, [1966] 1 All ER 650
Bailii
Ceylon Independence Act 1947
Citing:
Cited – Campbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
Cited – Dona Maria Abeyesekera Hamini and Others v Daniel Tillekeratne PC 26-Feb-1897
Ceylon – The Board considered the validity of a retrospective Order in Council. . .
Cited – Ibralebbe Alias Rasa Wattan Another v The Queen PC 6-Nov-1963
Ceylon – the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State. . .
Cited – The Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .

Cited by:
Cited – 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. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.247445

Wightman and Others v Secretary of State for Exiting the European Union: ECJ 4 Dec 2018

Opinion – Unilateral withdrawal of Art 50 Notice

Opinion – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit)
Question referred for a preliminary ruling – Admissibility – Article 50 TEU – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit) – Revocability of the notification of the intention to withdraw – Unilateral revocation – Conditions for unilateral revocation – Agreed revocation
When a Member State has notified the European Council of its intention to withdraw from the European Union, Article 50 of the Treaty on European Union allows the unilateral revocation of that notification, until such time as the withdrawal agreement is formally concluded, provided that the revocation has been decided upon in accordance with the Member State’s constitutional requirements, is formally notified to the European Council and does not involve an abusive practice.

Campos Sanchez-Bordona AG
ECLI:EU:C:2018:978
Bailii
European
Citing:
At Outer House – Wightman, MSP and Others, Reclaiming Motion By v The Advocate General SCS 20-Mar-2018
Art 50 withdrawal possibility review to proceed
Petition seeking judicial review of the United Kingdom Government’s ‘position’ on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union. . .
At SCS – Wightman MSP and Others for Judicial Review v The Secretary of State for Exiting The European Union SCS 8-Jun-2018
The Petitioners sought a declaration that the Article 50 notice given by the UK government could be withdrawn by the UK without the consent of the EU.
Held: The matter was referred to the CJEU for a preliminary answer to the question: ‘Where, . .

Cited by:
Opinion – Wightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 November 2021; Ref: scu.630996

Wightman and Others v Secretary of State for Exiting the European Union: ECJ 10 Dec 2018

Art 50 Notice withrawable unilaterally

Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The Court Ruled:
‘Article 50 TEU must be interpreted as meaning that, where a Member State has notified the European Council, in accordance with that article, of its intention to withdraw from the European Union, that article allows that Member State – for as long as a withdrawal agreement concluded between that Member State and the European Union has not entered into force or, if no such agreement has been concluded, for as long as the two-year period laid down in Article 50(3) TEU, possibly extended in accordance with that paragraph, has not expired – to revoke that notification unilaterally, in an unequivocal and unconditional manner, by a notice addressed to the European Council in writing, after the Member State concerned has taken the revocation decision in accordance with its constitutional requirements. The purpose of that revocation is to confirm the EU membership of the Member State concerned under terms that are unchanged as regards its status as a Member State, and that revocation brings the withdrawal procedure to an end.’

K Lenaerts, P
C-621/18, [2018] EUECJ C-621/18, ECLI:EU:C:2018:999
Bailii
European
Citing:
Opinion – Wightman and Others v Secretary of State for Exiting the European Union ECJ 4-Dec-2018
Opinion – Unilateral withdrawal of Art 50 Notice
Opinion – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit)
Question referred for a preliminary ruling – Admissibility – Article 50 TEU – Right of withdrawal from . .
At Outer House – Wightman, MSP and Others, Reclaiming Motion By v The Advocate General SCS 20-Mar-2018
Art 50 withdrawal possibility review to proceed
Petition seeking judicial review of the United Kingdom Government’s ‘position’ on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union. . .
At SCS – Wightman MSP and Others for Judicial Review v The Secretary of State for Exiting The European Union SCS 8-Jun-2018
The Petitioners sought a declaration that the Article 50 notice given by the UK government could be withdrawn by the UK without the consent of the EU.
Held: The matter was referred to the CJEU for a preliminary answer to the question: ‘Where, . .
Cited – Unibet (London) Ltd, Unibet (International) Ltd v Justitie-kanslern (Freedom To Provide Services) ECJ 13-Mar-2007
(Grand Chamber) Principle of judicial protection National legislation not providing for a self-standing action to challenge the compatibility of a national provision with Community law Procedural autonomy Principles of equivalence and effectiveness . .
Cited – Skatteverket v Gourmet Classic Ltd ECJ 12-Jun-2008
Jurisdiction of the Court Directive 92/83/EEC Harmonisation of the structures of excise duties on alcohol and alcoholic beverages Article 20, first indent Alcohol contained in cooking wine Exemption from the harmonised duty
‘While the spirit of . .
Cited – Gauweiler And Others v Deutscher Bundestag ECJ 16-Jun-2015
ECJ Judgment – Reference for a preliminary ruling – Economic and monetary policy – Decisions of the Governing Council of the European Central Bank (ECB) on a number of technical features regarding the . .
Cited – Kadi v Council and Commission ECJ 3-Sep-2008
(Common foreign and security policy) Grand Chamber – Common foreign and security policy (CFSP) Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban United Nations Security . .
Cited – American Express v The Lords Commissioners of Her Majesty’s Treasury – C-304/16 ECJ 7-Feb-2018
Freedom of Establishment – Interchange Fees for Card-Based Payment Transactions – Judgment – Reference for a preliminary ruling – Regulation (EU) 2015/751 – Interchange fees for card-based payment transactions – Article 1(5) – Three party payment . .
Cited – Les Verts v Parliament ECJ 23-Apr-1986
(Judgment) Action for annulment – Information campaign for the elections to the European Parliament. . .
Cited – PJSC Rosneft Oil Company, Regina (on The Application of) v Her Majesty’s Treasury and Others ECJ 28-Mar-2017
ECJ (Judgment : Common Foreign and Security Policy (CFSP) – Restrictive Measures) Reference for a preliminary ruling – Common Foreign and Security Policy (CFSP) – Restrictive measures adopted in view of Russia’s . .
Cited – Regina ex parte Afton Chemical v Secretary of State for Transport ECJ 8-Jul-2010
Reference for a preliminary ruling – Validity – Directive 2009/30/EC – Article 1(8) – Directive 98/70/EC – Article 8a – Atmospheric pollution – Fuels – Use of metallic additives in fuels – Limit for methylcyclopentadienyl manganese tricarbonyl (MMT) . .
Cited – Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve ECJ 20-Sep-2001
ECJ Reference for a preliminary ruling: Tribunal du travail de Nivelles – Belgium. Articles 6, 8 and 8a of the EC Treaty (now, after amendment, Articles 12 EC, 17 EC and 18 EC) – Council Directive 93/96/EEC – . .
Cited – Pringle v Government of Ireland ECJ 27-Nov-2012
ECJ Stability mechanism for the Member States whose currency is the euro – Decision 2011/199/EU – Amendment of Article 136 TFEU – Validity – Article 48(6) TEU – Simplified revision procedure – ESM Treaty – . .
Cited – Inuit Tapiriit Kanatami v European Commission ECFI 25-Apr-2013
ECFI Trade in seal products – Regulation (EC) No 1007/2009 – Detailed rules for implementation – Regulation (EU) No 737/2010 – Prohibition on placing such products on the market – Exception in favour of Inuit . .
Cited – Parliament v Commission C-286/14 ECJ 17-Mar-2016
ECJ (Judgment) Action for annulment – Article 290 TFEU – Concepts of ‘amending’ and ‘supplementing’ – Regulation (EU) No 1316/2013 – Article 21(3) – Scope of the power conferred on the European Commission – Need . .
Cited – LM v Minister for Justice and Equality ECJ 25-Jul-2018
Reference for a preliminary ruling – Urgent preliminary ruling procedure – Police and judicial cooperation in criminal matters – European arrest warrant – Framework Decision 2002/584/JHA – Article 1(3) – Surrender procedures between Member States – . .
Cited – Zhu, Chen v Secretary of State for the Home Department ECJ 19-Oct-2004
ECJ (Free Movement of Persons) Right of residence – Child with the nationality of one Member State but residing in another Member State – Parents nationals of a non-member country – Mother’s right to reside in . .
Cited – Rottmann v Freistaat Bayern ECJ 2-Mar-2010
ECJ Citizenship of the Union Article 17 EC – Nationality of one Member State acquired by birth – Nationality of another Member State acquired by naturalisation – Loss of original nationality by reason of that . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 01 November 2021; Ref: scu.631017

Van Gend En Loos v Administratie Der Belastingen: ECJ 5 Feb 1963

LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any charges having an equivalent effect’. Van Gend challenged the action of the Dutch authorities before an administrative tribunal. The tribunal, in a reference under Art.177 [Art.234] EC, asked the question ‘whether the Art.12 [Art.25] EC had an internal effect . . in other words, whether the nationals of MS may, on the basis of the Article in question, enforce rights which the judge should protect’. The Dutch authorities argued that the obligations in Art.12EC were addressed to MS and intended to govern rights and obligations between States. Such obligations were not normally enforceable at the suit of individuals (i.e. not directly effective).
Held: ‘the Treaty is more than an agreement creating only mutual obligations between the contracting parties . . Community law . . not only imposes obligations on individuals but also confers on them legal rights’
‘If the Commission considers that a Member State has failed to fulfil an obligation under this Treaty, it shall deliver a reasoned opinion on the matter after giving the State concerned the opportunity to submit its observations. ‘If the State concerned does not comply with the opinion within the period laid down by the Commission, the latter may bring the matter before the Court of Justice.’ and ‘The wording of Article 12 contains a clear and unconditional prohibition which is not a positive but a negative obligation. This obligation, moreover, is not qualified by any reservation on the part of the states which would make its implementation conditional upon a positive legislative measure enacted under national law. The very nature of this prohibition makes it ideally adapted to produce direct effects in the legal relationship between Member States and their subjects.’
ECJ 1. In order to confer jurisdiction on the court to give a preliminary ruling it is necessary only that the question raised should clearly be concerned with the interpretation of the treaty.
2. The considerations which may have led a national court to its choice of questions as well as the relevance which it attributes to such questions in the context of a case before it are excluded from review by the court when hearing an application for a preliminary ruling.
3. The European Economic Community constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the member states but also their nationals.
Independently of the legislation of member states, community law not only imposes obligations on individuals but is also intended to confer upon them rights which become part of their legal heritage. These rights arise not only where they are expressly granted by the treaty but also by reason of obligations which the treaty imposes in a clearly defined way upon individuals as well as upon the member states and upon the institutions of the community.
4. The fact that articles 169 and 170 of the EEC Treaty enable the commission and the member states to bring before the court a state which has not fulfilled its obligations does not deprive individuals of the right to plead the same obligations, should the occasion arise, before a national court.
5. According to the spirit, the general scheme and the wording of the EEC Treaty, article 12 must be interpreted as producing direct effects and creating individual rights which national courts must protect.
6. It follows from the wording and the general scheme of article 12 of the treaty that, in order to ascertain whether customs duties and charges having equivalent effect have been increased contrary to the prohibition contained in the said article, regard must be had to the customs duties and charges actually applied by member states at the date of the entry into force of the treaty.
7. Where, after the entry into force of the treaty, the same product is charged with a higher rate of duty, irrespective of whether this increase arises from an actual increase of the rate of customs duty or from a rearrangement of the tariff resulting in the classification of the product under a more highly taxed heading, such increase is illegal under article 12 of the EEC Treaty.

C-26/62, [1963] ECR 1, [1963] EUECJ R-26/62, (1963) 2 CMLR 128
Bailii
European
Cited by:
Cited – Regina v Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
See Also – Van Gend and Loos v Commission ECJ 13-Nov-1984
ECJ 1. Recognition of a case of force majeure presupposes that the external cause relied upon has irresistible and inevitable consequences to the point of making it objectively impossible for the persons . .
See Also – Van Gend and Loos Nv v Inspecteur Der Invoerrechten En Accijnzen, A Enschede ECJ 7-Mar-1985
ECJ Common customs tariff – tariff headings – ‘sails’ within the meaning of heading 62.04 – sails for sailboards imported separately from the boards – included
The words ‘sails’ in tariff heading 62.04 of . .
Cited – HP Bulmer Ltd and Another v J Bollinger Sa and others CA 22-May-1974
Necessity for Reference to ECJ
Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. . .
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 – Emerald Supplies Ltd and Others v British Airways Plc ChD 4-Oct-2017
EC has sole jurisdiction over old cartels
Several claimants alleged that the defendant airway had been part of a cartel which had overcharged for freight services. The court now heard arguments about whether it had jurisdition to deal with claims which preceded the measures which had . .

Lists of cited by and citing cases may be incomplete.

Customs and Excise, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.131662

Sexius v The Attorney General of Saint Lucia: PC 31 Jul 2017

Requirement for Defence Statement not prejudicial

(Saint Lucia) The Board was asked whether the provisions of the St Lucia Criminal Code 2004 and Criminal Procedure Rules 2008, concerning the requirements for a Defence Statement in advance of a criminal trial, were consistent with the Constitution of St Lucia and the right to a fair trial. On failing to provide a defence statement, he was warned that adverse inferences might be drawn at trial. He said that the requirement infringed his right of silence.
Held: The defendant’s appeal failed. If the defendant intended merely to require the prosecution to prove its case, he need only make this clear. Any impact on the right of silence was justified by the need for case management, to assist the prosecution in identifying the need for disclosure, might assist the further investigation to the asisstance of the defendant, and might lead to a discontinuance and or avoid delay.

Lord Mance, Lord Kerr,Lord Hughes, Lord Hodge, Sir Ronald Weatherup
[2017] UKPC 26, [2017] WLR(D) 554
Bailii, WLRD
England and Wales

Constitutional, Human Rights

Updated: 01 November 2021; Ref: scu.593586

Gujra, Regina (on The Application of) v Crown Prosecution Service: SC 14 Nov 2012

The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a prosecution.
Held: The appeal failed (Lord Mance and Lady Hale dissenting). There had indeed been a change in moving toward a test that a prosecution would be taken over and discontinued unless the prosecution was more likely than not to result in a conviction. The test was not whether a constitutional right had been infringed but whether the test properly reflected the statutory test as laid down in the 1985 Act. The statute had expressly preserved the DPP’s discretion in such matters and his right to intervene. The change to the ‘more likely than to to succeed’ wa a more relevant standard than that of ‘no case to answer’, and had been approved in the Royal Commission leading to the 1985 Act.

Lord Neuberger, President, Lady Hale, Lord Mance, Lord Kerr, Lord Wilson
[2012] 3 WLR 1227, UKSC 2011/0115, [2012] UKSC 52, [2013] 1 Cr App R 12, [2013] 1 All ER 612, [2013] 1 AC 484,, [2012] WLR(D) 330
Bailii Summary, SC Summary, SC, Bailii, WLRD
Prosecution of Offences Act 1985 6(1) 692)
England and Wales
Citing:
Appeal from – Gujra, Regina (on The Application of) v Crown Prosecution Service Admn 9-Mar-2011
The claimant sought judicial review of a decision of the respondent to take over and discontinue his private prosecutions arising from public order incidents, saying that the respondent’s policy was unlawful in restricting such prosecutions.
Cited – Regina v Director of Public Prosecutions ex parte Duckenfield etc Admn 31-Mar-1999
Private prosecutions had been brought against two retired police officers, D and M, in relation to the Hillsborough disaster; and the Director had refused a request by the officers to take over and discontinue those prosecutions, stating that his . .
Cited – Padfield v Minister of Agriculture, Fisheries and Food HL 14-Feb-1968
Exercise of Ministerial Discretion
The Minister had power to direct an investigation in respect of any complaint as to the operation of any marketing scheme for agricultural produce. Milk producers complained about the price paid by the milk marketing board for their milk when . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – Scopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
Cited – Jones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
Cited – British Oxygen Co Ltd v Board of Trade HL 15-Jul-1970
Cylinders containing hydrogen gas were being put on a trailer pulled by a tractor for the purpose of delivery to the premises of the purchaser. One of the issues before the court was whether the function of the hydrogen trailers and the cylinders . .
Cited – B, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 27-Jan-2009
The claimant sought judicial review of the defendant’s decision to discontinue a prosecution, saying that the respondent had failed to consider his duties under the 1995 Act. The prosecution had been discontinued for the victim’s mental instability . .
Cited – Regina v Barker (Note) 1975
Lord Widgery CJ said: ‘It cannot be too clearly stated that the judge’s obligation to stop the case is an obligation which is concerned primarily with those cases where the necessary minimum evidence to establish the facts of the crime has not been . .
Cited – Regina v Stafford Justices ex parte Customs and Excise Commissioners 1991
The court confirmed the continued right of private prosecution. Watkins LJ set out section 6 of the 1985 Act and observed: ‘These provisions clearly envisage that persons other than the Director may institute proceedings and prosecute. As Mr Lawson . .
Cited – X and Y v The Netherlands ECHR 26-Mar-1985
A parent complained to the police about a sexual assault on his daughter a mentally defective girl of 16. The prosecutor’s office decided not to prosecute provided the accused did not repeat the offence. X appealed against the decision and requested . .
Cited – Regina v Galbraith CCA 1981
Rejection of Submission of No Case to Answer
The defendant had faced a charge of affray. The court having rejected his submission of having no case to answer, he had made an exculpatory statement from the dock. He appealed against his conviction.
Held: Lord Lane LCJ said: ‘How then . .
Cited – Raymond v Attorney General and Others CA 1982
The power under statute to take over the conduct of private prosecutions includes a power to discontinue those proceedings, to issue a nolle prosequi. The DPP is free to make decisions, even value judgments on his or her assessment of the public . .

Cited by:
Cited – Virgin Media Ltd, Regina (on The Application of) v Zinga CACD 24-Jan-2014
Zinga had been convicted of conspiracy to defraud in a private prosecution brought by Virgin Media. After dismissal of the appeal against conviction, Virgin pursued confiscation proceedings. Zinga appealed against refusal of its argument that it was . .
Cited – Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another PC 13-Jun-2013
(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and . .
Cited – Williamson v The Attorney General of Trinidad and Tobago PC 3-Sep-2014
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.465790

Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office: HL 30 Jul 2008

SFO Director’s decisions reviewable

The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had become clear that a continued investigation would threaten co-operation between the UK and Saudi Arabia.
Held: The Director’s decision was one he was lawfully entitled to make, and his appeal succeeded. He was entitled to take into account the risks to British lives which might follow such an action and the withdrawal of co-operation by Saudi. The decisions of the Director were susceptible to judicial review.
Lord Bingham said that the reasons why the courts are very slow to interfere are well understood: first, that the powers in question are entrusted to the officers identified and to no-one else, and no other authority may exercise the powers or make the judgments on which such exercise must depend; secondly, that the courts have recognised the polycentric character of official decision-making in such matters; and, thirdly, that the powers are conferred in very broad and unprescriptive terms.
It is inappropriate for courts to purport to decide whether or not the Executive has correctly understood an unincorporated treaty obligation: ‘Whether, in the event that there had been a live dispute on the meaning of an unincorporated provision on which there was no judicial authority, the courts would or should have undertaken the task of interpretation from scratch must be at least questionable. It would moreover be unfortunate if decision-makers were to be deterred from seeking to give effect to what they understand to be the international obligations of the United Kingdom by fear that their decisions might be held to be vitiated by an incorrect understanding.’
Lord Brown of Eaton-under-Heywood said: ‘It simply cannot be the law that, provided only a public officer asserts that his decision accords with the state’s international obligations, the courts will entertain a challenge to the decision based upon his arguable misunderstanding of that obligation and then itself decide the point of international law at issue.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Baroness Hale of Richmond, Lord Brown of Eaton-under-Heywood
[2008] UKHL 60, Times 31-Jul-2008, [2008] 3 WLR 568, [2009] Crim LR 46, [2008] Lloyd’s Rep FC 537, [2008] 4 All ER 927, [2009] 1 AC 756
Bailii, HL
Anti-terrorism, Crime and Security Act 2001, Criminal Justice Act 1987 1(3) 1(5), Constitutional Reform Act 2005 81
England and Wales
Citing:
See Also – Corner House Research, Regina (on the Application of) v Director of the Serious Fraud Office Admn 17-Jan-2008
The court considered interlocutory matters in the forthcoming application for judicial review of the respondent’s decision not to proceed with an investigation of allegations of bribery under the 2001 Act. . .
See Also – Corner House Research and Another, Regina (on the Application of) v Director of Serious Fraud Office and Another Admn 4-Feb-2008
The applicant sought judicial review of the decision by the Director to halt the investigation of alleged payment of bribes by a British defence company to members of the Saudi Royal family, which would be an offence under the 2001 Act.
Held: . .
Appeal from – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Regina v Chief Constable of Devon and Cornwall, Ex parte Central Electricity Generating Board CA 1982
The CEGB wanted to undertake a survey using its statutory powers to check whether land might be suitable for a nuclear power station, and wanted the police to prevent demonstrators from preventing the survey. It now requested an order of mandamus to . .
Cited – C (A Minor) v Director of Public Prosecutions HL 17-Mar-1995
The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good . .
Cited – Regina v The Director of Public Prosecutions, Ex Parte Manning, Ex Parte Melbourne QBD 17-May-2000
The applicants sought judicial review of the decision of the Director not to prosecute anybody after the death of their brother in prison custody, and while under restraint by prison officers. The jury at a coroner’s inquest had returned a verdict . .
Cited – Bermingham and others v The Director of the Serious Fraud Office QBD 21-Feb-2006
Prosecution to protect defendant not available
The claimants faced extradition to the US. They said that the respondent had infringed their human rights by deciding not to prosecute them in the UK. There was no mutuality in the Act under which they were to be extradited.
Held: The Director . .
Cited – Mohit v The Director of Public Prosecutions of Mauritius PC 25-Apr-2006
(Mauritius) The board was asked whether the decision of the Director to discontinue a private prosecution was a decision capable of review by the courts under the constitution of Mauritius. . .
Cited – Sharma v Brown-Antoine, Deputy Director of Public Prosecutions and others PC 30-Nov-2006
(Trinidad and Tobago) Complaint was made as to a decision to begin professional discliplinary proceedings against a senior member of the judiciary.
Held: Although a decision to prosecute was in principle susceptible to judicial review on 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 – Matalulu v Director of Public Prosecutions 2003
(Supreme Court of Fiji) The court considered the nature of judicial control (if any) over decisions by authorities to commence prosecutions and said: ‘the polycentric character of official decision-making in such matters including policy and public . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
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 Chief Constable of Sussex, ex Parte International Trader’s Ferry Limited HL 2-Apr-1998
Chief Constable has a Wide Discretion on Resources
Protesters sought to prevent the appellant’s lawful trade exporting live animals. The police provided assistance, but then restricted it, pleading lack of resources. The appellants complained that this infringed their freedom of exports under . .
Cited – Regina v Coventry Airport Ex Parte Phoenix Aviation; Regina v Dover Harbour Board Ex Parte Gilder Admn 12-Apr-1995
A local authority operator of an airport suspended flights on aircraft transporting livestock; a harbour authority refused to allow cross-Channel services for the export of live animals; and a local authority challenged the decision of a statutory . .
Cited – Regina v Chief Constable of Sussex, Ex Parte International Trader’s Ferry Ltd QBD 28-Jul-1995
A Chief Constable may not limit his duty to his immediate community if this interfered with lawful exports within the community. It was for the Chief Constable to decide on the disposition of his forces and the use of his resources. He was fully . .
Cited – Regina v Secretary of State for the Home Department and Another, Ex Parte Finninvest Spa and Others QBD 23-Oct-1996
The referral of an approach from the Italian authorities for help to the Serious Fraud Office was not wrong. Where assistance is being given to an authority abroad in relation to an on-going investigation both the letter of request and the draft . .
Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .

Cited by:
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 4) Admn 4-Feb-2009
In an earlier judgment, redactions had been made relating to reports by the US government of its treatment of the claimant when held by them at Guantanamo bay. The claimant said he had been tortured and sought the documents to support his defence of . .
Cited – Gujra, Regina (on The Application of) v Crown Prosecution Service Admn 9-Mar-2011
The claimant sought judicial review of a decision of the respondent to take over and discontinue his private prosecutions arising from public order incidents, saying that the respondent’s policy was unlawful in restricting such prosecutions.
Cited – E and Others, Regina (on The Application of) v The Director of Public Prosecutions Admn 10-Jun-2011
Judicial review was sought of a decision by the respondent to prosecute a child for her alleged sexual abuse of her younger sisters. Agencies other than the police and CPS considered that a prosecution would harm both the applicant and her sisters. . .
Cited – Lord Carlile and Others v Secretary of State for The Home Department Admn 16-Mar-2012
The claimant had invited an Iranian dissident to speak in Parliament, and now challenged the decision of the Home Secretary to refuse her a visa on the basis that her exclusion was not conducive to the public good. She was a member of an . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Monica, Regina (on The Application of) v Director of Public Prosecutions Admn 14-Dec-2018
Deception as to identity did not undermine consent
The claimant had been an environmental campaigner. She had had a sexual relationship with a man who was unknown to her an undercover police officer. She now challenged the decision not to prosecute him for rape.
Held: Her claim failed. Case . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – JJ Management Consulting Llp and Others v Revenue and Customs CA 22-Jun-2020
HMRC has power to conduct informal investigation
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which . .
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .
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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Practice

Leading Case

Updated: 01 November 2021; Ref: scu.271273

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: ‘guidance is assistance in reaching a decision proffered to him who has to make the decision, but guidance does not compel any particular decision.’
Lord Denning said that the exercise of a discretionary prerogative power ‘can be examined by the courts just as any other discretionary power which is vested in the executive.’
. . And ‘The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations: but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution.

Roskill LJ, Lord Denning MR, Lawton LJ
[1977] 1 QB 643, [1976] EWCA Civ 10, [1977] 2 All ER 182, [1977] 2 WLR 234
Bailii
Civil Aviation Act 1971 3
England and Wales
Citing:
Cited – 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 . .

Cited by:
Cited – M v London Borough of Islington and Another CA 2-Apr-2004
The applicant asylum seeker had had her application refused, and was awaiting a removal order. She had a child and asked the authority to house her pending her removal.
Held: Provided she was not in breach of the removal order, the council had . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Cala Homes (South) Ltd, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another CA 27-May-2011
The respondent had circularised local authorities to say that when assessing future local housing needs a proper material consideration was the proposed Localism Bill which would lead to the replacement of ‘Regional Spatial Strategies’ on which such . .
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 . .

Lists of cited by and citing cases may be incomplete.

Administrative, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.196549

Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg: Admn 30 Jul 1993

The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by Parliament, and would transfer the Royal Prerogative power to enter into treaties without parliamentary approval.
Held: Judicial Review was refused. The 1993 Act had referred to ratification of the protocols, and therefore Parliament had approved them. The social policy protocol had been excluded from ratification and was not to be incorporated into domestic law. Domestic law was not therefore amended. Whilst the court had jurisdiction to consider the ratification of Title V of the Treaty relating to foreign and social policy, it involved no question of domestic law. Ratification was an exercise of the prerogative power, not its abandonment. In a rare case a public-spirited individual may be permitted to apply for judicial review in relation to a matter in which he has no direct personal interest separate from that of the population as a whole.
Lloyd LJ recorded one argument proposed before him: ‘He submits that by ratifying the Protocol on Social Policy, the Government would be altering Community law under the EEC Treaty . . It is axiomatic that Parliament alone can change the law. Mr Pannick accepts, of course, that treaties are not self-executing. They create rights and obligations on the international plane, not on the domestic plane. He accepts also that the treaty-making power is part of the Royal Prerogative … But the EEC Treaty is, he says, different. For section 2(1) of the European Communities Act 1972 provides
If the Protocol on Social Policy is ratified by all member states, it will become part of the EEC Treaty, which is one of the Treaties referred to in section 2(1): see the definition of ‘the Treaties’ in section 1(2) of the Act of 1972. Accordingly the Protocol will have effect not only on the international plane but also, by virtue of section 2(1) of the Act of 1972, on the domestic plane as well. By enacting section 2(1), Parliament must therefore have intended to curtail the prerogative power to amend or add to the EEC Treaty. There is no express provision to that effect. But that is, according to the argument, the necessary implication … Where Parliament has by statute covered the very same ground as was formerly covered by the Royal Prerogative, the Royal Prerogative is to that extent, by necessary implication, held in abeyance: see Attorney General v De Keyser’s Royal Hotel Ltd [1920] AC 508; Laker Airways Ltd v Department of Trade [1977] QB 643, 718,720, per Roskill LJ.’ He countered, saying: ‘We find ourselves unable to accept this far-reaching argument. When Parliament wishes to fetter the Crown’s treaty-making power in relation to Community law, it does so in express terms, such as one finds in section 6 of the Act of 1978. Indeed, as was pointed out, if the Crown’s treaty-making power were impliedly excluded by section 2(1) of the Act of 1972, section 6 of the Act of 1978 would not have been necessary. There is in any event insufficient ground to hold that Parliament has by implication curtailed or fettered the Crown’s prerogative to alter or add to the EEC Treaty.’

Lloyd, Mann, Auld LJJ
[1993] 3 CMLR 101, [1994] 2 WLR 115, [1994] 1 ALL ER 457, [1994] QB 552, [1993] EWHC Admin 4
Bailii
European Communities (Amendment) Act 1993, European Communities Act 1972, European Parliamentary Elections Act 1978 6
England and Wales
Cited by:
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte World Development Movement Ltd QBD 1995
A British consortium looked for assistance in providing a hydro-electric project on the Pergau river. One interested government department advised that it was not economical and an abuse of the overseas aid programme, but the respondent decided to . .
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 – Goodson v HM Coroner for Bedfordshire and Luton and Another (No 2) CA 12-Oct-2005
The applicant intended to appeal refusal of her challenge to the verdict of the coroner. For the first time at appeal she sought a protective costs order.
Held: The Corner House case established that a request for a protective costs order . .
Cited – Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
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 – Good Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .

Lists of cited by and citing cases may be incomplete.

Administrative, European, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.222182

Dring v Cape Distribution Ltd and Another: QBD 5 Dec 2017

Disclosure of Documents filed at Court

Constitution – Access To Courts – Open Justice – court files – court records – public scrutiny of courts – asbestos – mesothelioma – TDN13 – Technical Data Notice 13 – Cape – asbestolux – disclosure – document management systems – CPR 5.4C(2) – settlement – dispute resolution – health and safety
Principles and status of the documents in this case
The right of access to court is inherent in the rule of law.
Openness of justice fosters the scrutiny of the courts by the public, protects the integrity of the court process and assists the development of the law and legal knowledge. It thereby supports the practical effectiveness of the right of access to court.
The courts do not merely provide a public service to the ‘users’ who appear before them. Previous cases form the basis of the advice given to those whose cases are now before the courts, or who need to be advised as to the basis on which their claim might fairly be settled, or who need to be advised that their case is hopeless.
Access to a court, being not merely the provision of a service to ‘users’ entails that the parties submitting to the jurisdiction do not have full sovereignty to determine simply by private agreement between themselves the extent to which the public may be made aware of any aspect of the proceedings before the court.
There is an inherent and foreseeable possibility that material deployed in court by the parties, or filed upon the records of the court as part of its process, will form part of the corpus of material which may be deployed in other cases, used for the purposes of legal advice, being academically or journalistically discussed, or considered by Parliament.
The rules and common law jurisdiction to order access to documents by the public
CPR rule 5.4C is the primary means by which the court’s common law power to allow access to documents to the public from the court record is administered but the common law is the master and not the servant of the rules. The rules provide a qualified and controlled system of openness regulated by the court rules in a judicial manner.
Where documents are filed on the record of the court then they fall within the scope of CPR 5.4C(2).
Served documents not on the records of the court do not fall within rule 5.4C but may be disclosed under the court’s common law power.
Applicable test
Documents filed on the record of the court and which are read or treated as read in court are subject to a default position in favour of the principle of open justice if the applicant has a legitimate interest.
Where the applicant has a legitimate interest then the court must still carry out a balancing exercise in relation to any harm to other parties legitimate interests when deciding whether to allow access.
Documents on the records of the court which are not read or treated as read are subject to a more stringent test namely that there must be strong grounds for thinking that access is necessary in the interests of justice.
The principle of open justice is engaged notwithstanding that a case settles before judgment. It applies to documents in such a case which have been read to or by the court, treated as so read, or which ‘have featured in’ the proceedings.
Status of the documents
Bundles which have been filed are part of the records of the court. ‘Bundle D’ in this case does not amount to a bundle filed at court. The paper bundles do fall to be treated as filed.
The paper documents other than the bundles were retained in court at the end of trial and held together with the court files, and became documents filed on the records of the court, alternatively the documents other than those in the bundles fall within the court’s general discretion as to access. They were deployed in court and placed before the judge including after he retired to consider his decision. They were subject to what Lord Justice Toulson referred to as the ‘default position’ that access should be given on the open justice principle.
The residue of bundle D not already contained in the paper bundles is material which falls outside the scope of the default principle of openness.
There is a power to order disclosure of bundle D under the common law jurisdiction of the court, but I do not exercise those powers here.
Legitimate interest and intended use
A legitimate interest can include academic interest, use by a pressure group or use in some journalistic form and indeed any number of other uses which are ulterior (in the proper sense of that word) without being illegitimate.
Mr Dring acts for a group which provides help and support to asbestos victims. It some respects it is also a pressure group and is involved in lobbying and in promoting asbestos knowledge and safety. Those are legitimate activities and provide legitimate interest.
The intended use is to enable him and the forum of which he is an officer, to:
make the material publicly available,
by making it available to promote academic consideration as to the science and history of asbestos and asbestolux exposure and production,
improve the understanding of the genesis and legitimacy of TDN13 and any industry lobbying leading to it in the 1960s and 1970s.
understand the industrial history of Cape and its development of knowledge of asbestos safety
clarify the extent to which Cape is or is not responsible for product safety issues arising from the handling of asbestolux boards
to assist court claims and the provision of advice to asbestos disease sufferers.
Those are legitimate aims.
Specificity of application and balancing exercise<>The degree of specificity which is possible in an application under rule 5.4C must necessarily be limited in practical terms by the fact that without seeing the documents in the first place the best that can be expected so as to assist the court is that general categories of documents be identified unless there is a particular identified document which known about and is sought.
The classes sought in the statement provided with the application were:
(i) All witness statements
(ii) Experts’ reports
(iii) Transcripts of evidence
(iv) All documents disclosed by Cape and other parties.
I am satisfied that (in no order of priority) the content of those documents:
i. would be likely to be of academic and scientific interest as part of public and social discourse as to the history of asbestos safety, regulation and knowledge as it developed during the 20th century,
ii. would be likely to be considered by advisers advising parties to asbestos litigation as to the merits of their cases whenever issues arise which touch upon Technical Data Notice 13 and connected Regulations,
iii. is likely to be relevant the product safety of asbestos insofar as understood within the major manufacturers and connected companies as compared with general public at various points in the 20th century, and
iv. is likely to be relevant to the extent to which employer defendants could have been expected to appreciate the risks of asbestos.
Partial access to the documents could lead to ‘cherry picking’ in terms of the publishing of negative material especially if access was only given to material which paints asbestos, and perhaps Cape in a bad light. There is a risk, but a much reduced risk, of cherry picking if access is given less selectively and more rather than less widely.
A requirement for special circumstances is desirable in the case of disclosure documents served but not deployed at trial, in this instance bundle D, to ensure that non-parties are not placed in a better position than parties in relation to unused but served disclosure material. I do not consider that grounds have been made out for disclosure in relation to bundle D.
I was not presented with substantial evidence or argument from Cape as to harm to it would suffer from disclosure, at the level of particular documents or classes of document within the paper files.
I do not regard the post hoc concerns now raised by Cape about the privacy of persons named in the documents in connection with asbestos related disease as a ground for refusing public disclosure of these documents as a credible or weighty one in this instance.
Conclusions
The balance is in favour of disclosure of:
i. the witness statements including exhibit
ii. expert report
iii. transcripts,
iv. disclosed documents relied on by the parties at trial ie those in the paper bundles only,
v. written submissions and skeleton
vi. Statements of case to include requests for further information and answers if contained in the bundles relied on at trial.
In formal terms I am therefore allowing the application in relation to document classes (i) to (iii) listed in the statement of Ms Bains dated 6 April 2017 but only partially allowing disclosure of documents in category (iv). I am also allowing disclosure of certain other documents as is apparent from the list just set out.
I am excluding from disclosure the contents of bundle D for reasons already given. I am also excluding copies of the disclosure statements of the parties because that would tend to undermine (by giving disclosure by indirect means) the decision I have made that bundle D is not disclosed.
The Applicant may return to court to seek a decision as to access in respect of any documents in bundle D which it appears upon consideration were omitted from the paper bundles, yet were in fact relied on at court (this ought to be apparent from the documents for which access has been given as above). Bundle D shall remain impounded in court.
The documents subject to disclosure to Mr Dring shall therefore be made available by the court to the Applicant’s solicitor as an officer of the court for copying or scanning upon the giving of an undertaking that documents not within the scope of this order, if contained in the files, will not be copied.
I direct that the court file and impounded bundle D shall not be destroyed in the usual course of administration of the court without an order of the court.

Victoria McCloud M
[2017] EWHC 3154 (QB)
Bailii
England and Wales

Litigation Practice, Constitutional

Updated: 01 November 2021; Ref: scu.602135

Beech v Freeson: QBD 1972

The defendant, a Member of Parliament, wrote a letter to the Law Society with a copy to the Lord Chancellor, saying that he had been specifically requested by a constituent to refer the plaintiffs’ solicitors’ firm to the Law Society for investigation. He set out the constituent’s complaints and stated that, contrary to his usual practice he had complied with the request because he had received complaints from other constituents in the past concerning the plaintiffs’ firm. He defended the defamation action, claiming qualified privilege.
Held: Qualified privilege may arise in the making of complaints about public officials or persons with public duties to the relevant authorities.
Geoffrey Lane J said: ‘Finally, have the plaintiffs proved that the defendant was actuated by express malice? Malice includes any spite or ill-will directed from the defendant at the plaintiffs. It also includes any indirect motive. That is to say, any intention on the part of the defendant to use the occasion, not merely for the purpose for which it is a subject of qualified privilege, but for some extraneous purpose of his own not connected with privilege’
. . And ‘it seems contrary to principle that the existence of qualified privilege should depend on the mistaken belief of the defendant’.

Lane J
[1972] 1 QB 14
England and Wales
Citing:
Cited – Nevill v Fine Arts and General Insurance Co Ltd CA 1895
Lopes LJ said: ‘The effect of the occasion being privileged is to render it incumbent upon the plaintiff to prove malice, that is, to shew some indirect motive not connected with the privilege, so as to take the statement made by the defendant out . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional, Legal Professions

Leading Case

Updated: 01 November 2021; Ref: scu.539180

Meerabux v The Attorney General of Belize: PC 23 Mar 2005

(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been decided in private.
Held: It was not suggested that the chairman had any pecuniary interest. A judge of the Supreme court had to be qualified as a barrister, and therefore be a member of the Bar Council in order to sit. Those framing the constitution must have anticipated this apparent conflict, and a chairman should therefore not be automatically disqualified. Not every proceeding must be held in public. The BAC was not a judicial body. The rules of the BAC were designed to ensure fairness, and they were not impugned by the proceedings, nor their privacy.

Lord Hoffmann, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKPC 12, Times 20-Apr-2005, [2005] 2 WLR 1307, [2005] 2 AC 513
Bailii, PC
Belize Constitution 98(4)
Commonwealth
Citing:
Cited – Regina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
Cited – Porter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
Cited – Dimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
Cited – In Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
Cited – Regina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
Cited – Lawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
Cited – Leeson v Council of Medical Education and Registration 1889
Mere membership of an association by which proceedings are brought does not disqualify a judge from hearing the case, but active involvement in the institution of the particular proceedings does. Here, mere membership of the Medical Defence Union . .
Cited – Allinson v General Council of Medical Education and Registration 1894
The mere ex officio membership of the committee of the Medical Defence Union was held to be insufficient to disqualify the member from sitting on the disciplinary panel. . .
Cited – Pellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – Stewart v Secretary of State for Scotland (Scotland) HL 22-Jan-1998
The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not . .
Cited – Stewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:
Cited – Gillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
Cited – Regina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Helow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
Cited – Kaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Natural Justice

Updated: 01 November 2021; Ref: scu.223880

C (A Minor) v Director of Public Prosecutions: HL 17 Mar 1995

The House considered whether the long established rule of the criminal law presuming that a child did not have a guilty mind should be set aside.
Held: Doli incapax, the presumption of a child’s lack of mens rea, is still effective and good law, but a child is not capable at law without the requisite knowledge. Judicial review was sought of the Director’s decision not to prosecute, but it was not suggested that the court’s jurisdiction to grant relief was ousted by section 29(3). Lord Lowry said that the presumption as too firmly embedded in the law of England to be removed by the judiciary: ‘Of course, no one could possibly contend (nor did Mr. Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or a ‘development.’ It is quite clear that, as the law stands, the Crown must, as part of the prosecution’s case, show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thought of ‘judicial legislation’ on the lines proposed.’
Only in highly exceptional cases will the court disturb the decisions of an independent prosecutor and investigator.
Lord Jauncey discussed the position in Scotland: ‘No such presumption operates in Scotland where normal criminal responsibility attaches to a child over 8 and I do not understand that injustice is considered to have resulted from this situation.’
Lord Lowry said: ‘Mr Henriques QC, presenting the respondent’s case, frankly conceded that the Divisional Court was bound by authority to recognise and apply the presumption, but he submitted that the presumption was illogical in conception and bizarre in its effect. His written case submissions based on the current educational standards of children and on the ever earlier onset of their physical and psychological maturity, as witness by the recent statutory abolition of the irrebuttable common law presumption that boys under 14 are incapable of offences involving sexual intercourse on their own part (Sexual Offences Act 1993). The written case also listed examples of legislative and judicial changes of attitude towards young children called as witnesses. Against this background counsel submitted, not that the presumption should be swept away but (echoing the 1954 proposal of Professor Glanville Williams) that in recognition of its frailties your lordships should by judicial intervention effect a change by laying it down that the prosecution’s initial burden of showing a prima facie case against a child should be the same as if the accused were an adult but that the child should then be able by evidence to raise as a defence the issue that he was doli incapax; it would then be for the prosecution to prove to the criminal standard that the child was doli capax. That your Lordships in a judicial capacity could make this change which counsel categorised as merely procedural, was an express and necessary part of his argument.

Of course no one could possibly contend (nor did Mr Henriques try to do so) that this proposal represents what has always been the common law; it would be a change or ‘development’. It is quite clear that as the law stands, the Crown must, as part of the prosecution’s case show that a child defendant is doli capax before that child can have a case to meet. To call the proposed innovation a merely procedural change greatly understates, in my view, its radical nature, which would not be disguised by continuing to impose the persuasive burden of proof upon the prosecution. The change would not merely alter the trial procedure but would in effect get rid of the presumption of doli incapax which must now be rebutted before a child defendant can be called for his defence and the existence of which will in practice often prevent a charge from even being brought. This reflection must be enough to discourage any thoughts of ‘judicial legislation’ on the lines proposed. ‘

and ‘One solution which has been suggested is to abolish the presumption with or without an increase in the minimum age of criminal responsibility. This, as Mr Robertson pointed out, could expose children to the full criminal process at an earlier age than most countries of Western Europe.’

Lord Lowry, Lord Jauncey
Times 17-Mar-1995, Independent 21-Mar-1995, (1995) Cr App R 136, [1995] UKHL 15, [1996] AC 1, [1995] RTR 261, [1995] 2 All ER 43, [1995] 2 WLR 383, (1995) 159 JP 269, [1995] 1 FLR 933, [1995] Fam Law 400, [1995] Crim LR 801
Bailii
Supreme Courts Act 1981 29(3), Prosecution of Offenders Act 1985 10
England and Wales
Citing:
Appeal from – C (A Minor) v Director of Public Prosecutions QBD 30-Mar-1994
The 12 year old defendant held the handlebars of a motorcycle allowing a second boy to try to remove the chain and padlock securing it. He appealed against his conviction.
Held: The presumption of doli incapax for a 10-14 year old child is no . .

Cited by:
Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Cited – Lewin v Crown Prosecution Service Admn 24-May-2002
The applicant sought review of the decision of the respondent not to initiate a prosecution in respect of a death in Spain. The deceased had been left drunk and unconscious in a car in the sun. There was a variance of opinion as to the exact cause . .
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 – Director of Public Prosecutions v Jones and Lloyd HL 4-Mar-1999
21 people protested peacefully on the verge of the A344, next to the perimeter fence at Stonehenge. Some carried banners saying ‘Never Again,’ ‘Stonehenge Campaign 10 years of Criminal Injustice’ and ‘Free Stonehenge.’ The officer in charge . .
Cited – Regina v Director of Public Prosecutions ex parte Treadaway Admn 31-Jul-1997
The applicant had been convicted of a robbery and served a long prison sentence. After release he was awarded damages against some of the policie officers for assault. The DPP decided not to proceed against the officers by way of criminal . .
Cited – Corner House Research and Others, Regina (on the Application of) v The Serious Fraud Office HL 30-Jul-2008
SFO Director’s decisions reviewable
The director succeeded on his appeal against an order declaring unlawful his decision to discontinue investigations into allegations of bribery. The Attorney-General had supervisory duties as to the exercise of the duties by the Director. It had . .
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 . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, Children, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.78793

Goldsmith v Pressdram Ltd: CA 1988

The court considered whether to order a defamation trial to be before a judge alone, or with a jury.
Held: The word ‘examination’ has a wide connotation, is not limited to the documents which contain the actual evidence in the case and includes, for example, documents which are likely to be introduced in cross-examination.
Slade LJ said: ‘Correspondingly, I infer that the legislature, in using the particular word ‘conveniently’ in the context of the sub-section, was directing its attention to the efficient administration of justice, rather more than the probable difficulty or otherwise of issues involved There may be many cases where numerous documents will be required to be looked at, but no substantial practical difficulties are likely to arise in their examination being made with a jury. On the other hand, cases may, I concede, arise where relatively few documents will require examination, but nevertheless long and minute examination of them is likely to be required, and, because of their particular nature, a satisfactory examination of them by a jury will present formidable practical difficulties’.
Kerr LJ said: ‘Conveniently’ means, as I see it, without substantial difficulty in comparison with carrying out the same process with a Judge alone. On the issues raised in this case the investigatory process of arriving at the ultimate answer would be a difficult task for any judge despite constant reference to documents, and far more difficult, and therefore inconvenient as a forensic process, when it has to be done in a way that is capable of being followed and understood by 12 jurors’.
Nourse LJ pointed out that the right to trial of a defamation action by a jury is an important constitutional right: ‘whether someone’s reputation has or has not been falsely discredited ought to be tried by other ordinary men and women and, as Lord Camden said, it is the jury who are the people of England.’

Slade LJ, Kerr LJ, Nourse LJ
[1988] 1 WLR 64
Supreme Court Act 1961 69
England and Wales
Cited by:
Cited – Safeway Stores Plc v Albert Tate CA 18-Dec-2000
The respondent, a neighbour of the claimant, had fallen into dispute with the claimant, and issued a leaflet and signs alleging fraud. The claimants obtained an injunction, and in the absence of a substantive defence, judgement. He claimed that the . .
Cited – Right Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
Cited – Field v Local Sunday Newspapers Limited 10-Dec-2001
The court considered whether to order jury trial of a defamation action.
Held: The triggers of ‘prolonged examination’ and ‘inconvenience’ are not two separate requirements and must be considered together, although it is convenient to take . .
Cited – Collins Stewart Ltd and Another v The Financial Times Ltd QBD 20-Oct-2004
The claimants sought damages for defamation. The claimed that the article had caused very substantial losses (andpound;230 million) to them by affecting their market capitalisation value. The defendant sought to strike out that part of the claim. . .
Cited – Fiddes v Channel Four Television Corporation and Others CA 29-Jun-2010
The claimants in a defamation case made an interlocutory appeal against an order for trial by judge alone. The parties had agreed for trial by jury, but the defendants made a late application for trial by judge alone.
Held: The claimant’s . .
Cited – Beta Construction Ltd v Channel Four Television Co Ltd CA 1990
When considering the number of documents to be considered when deciding whether a defamation case should proceed before a judge or judge and jury, the court was entitled to look also at any specialised technical content of the documents and also . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.182778

Regina (Abbasi) v Secretary of State for Foreign Affairs: CA 6 Nov 2002

There is no authority in law to support the imposition of an enforceable duty on the state to protect the citizen, and although the court was able to intervene, in limited ways, in the way in which the Foreign and Commonwealth Office used its discretion whether to exercise its right to protect a citizen, the court would not interfere with matters of foreign policy.
Although the Foreign Office’s discretion as to exercise its prerogative powers in such a case was ‘a very wide one’ and although ‘the court cannot enter the forbidden areas, including decisions affecting foreign policy’, there was ‘no reason why its decision or inaction should not be reviewable if it can be shown that the same were irrational or contrary to legitimate expectation’
The court expressed serious concerns about the process of detention at Guantanamo Bay, concluding that ‘in apparent contravention of fundamental principles recognised by both [the British and the US] jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a ‘legal black-hole’: ‘We have made clear our deep concern that, in apparent contravention of fundamental principles of law, Mr Abbasi may be subject to indefinite detention in territory over which the U.S.A. has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or Tribunal.’
Lord Phillips MR said ‘. . the court cannot enter the forbidden areas, including decisions affecting foreign policy.’

Lord Phillips MR
[2002] EWCA Civ 1598, [2003] UKHRR 76, Times 08-Nov-2002, [2002] All ER (D) 70
Bailii
England and Wales
Citing:
Followed – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
See Also – Abbasi and Another, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Office and others CA 10-Sep-2002
The appellant was a British citizen detained at Guantanamo Bay by US authorities. He was captured by American forces in Afghanistan. He claimed that his detention was a violation of international law and that, under the United Kingdom Domestic Law, . .
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 by:
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Mohamed Moneim Al-Fayed for Judicial Review of A Decision of the Lord Advocate To Refuse To Instruct A Public Inquiry Into the Death of Emad Al-Fayed OHCS 12-Mar-2004
The claimant sought judicial review of the minister’s decision not to order a judicial public investigation of the death of his son in a car crash in Paris.
Held: The primary obligation to undertake an enquiry fell upon France. The obligation . .
Cited – Hicks, Regina (on the Application of) v Secretary of State for the Home Department Admn 13-Dec-2005
The claimant, an Australian, presently held by the US as a suspected terrorist in Guantanamo Bay sought to be registered as a British Citizen, saying he was entitled to registration as of right.
Held: The past behaviour of an applicant was not . .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – Al Rawi and Others, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 12-Oct-2006
The claimants sought that the defendant should issue a request to the US authorities for their release from detention at Guantanamo Bay.
Held: The courts would not be able to intervene by judicial review, and would be reluctant to intervene in . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Sandiford, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 22-May-2013
The appellant, a British national and European citizen was in prison in Bali convicted of a criminal charge for which she might face the death penalty. Having insufficient funds she sought legal assistance from the respondent for hr appeal, and now . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
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 – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.186664

Gosling v Veley: 1850

Wilde CJ said: ‘The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate, or toll, except under clear and distinct legal authority, established by those who seek to impose the burden, has been so often the subject of legal decision that it may be deemed a legal axiom, and requires no authority to be cited in support of it.’

Wilde CJ
(1850) 12 QB 328, [1850] EngR 174, (1850) 12 QB 328, (1850) 116 ER 891
Commonlii
Bill of Rights 1688 4
England and Wales
Cited by:
Cited – Attorney-General v Wilts United Dairies Ltd HL 1922
The House heard an appeal by the Attorney-General against a finding that an imposition of duty on milk sales was unlawful.
Held: The appeal failed. The levy was unlawful. Lord Buckmaster said: ‘Neither of those two enactments enabled the Food . .
Cited – Total Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.248338

Young v The Bristol Aeroplane Co Ltd: CA 28 Jul 1944

Court of Appeal must follow Own Decisions

The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered the circumstances in which it could depart from a previous decision of the same court, on the basis that the decision had been reached per incuriam because an applicable statute or rule had not been referred to.
Lord Greene MR said: ‘In considering the question whether or not this court is bound by its previous decisions and those of courts of co-ordinate jurisdiction, it is necessary to distinguish four classes of case. The first is that with which we are now concerned, namely, cases where this court finds itself confronted with one or more decisions of its own or of a court of co-ordinate jurisdiction which cover the question before it and there is no conflicting decision of this court or of a court of co-ordinate jurisdiction. The second is where there is such a conflicting decision. The third is where this court comes to the conclusion that a previous decision, although not expressly overruled, cannot stand with a subsequent decision of the House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous decision was given per incuriam. In the second and third classes of case it is beyond question that the previous decision is open to examination. In the second class, the court is unquestionably entitled to choose between the two conflicting decisions. In the third class of case the court is merely giving effect to what it considers to have been a decision of the House of Lords by which it is bound. The fourth class requires more detailed examination and we will refer to it again later in this judgment.’
Lord Greene MR: ‘Where the court has construed a statute or a rule having the force of a statute its decision stands on the same footing as any other decision on a question of law, but where the court is satisfied that an earlier decision was given in ignorance of the terms of a statute or a rule having the force of a statute the position is very different. It cannot, in our opinion, be right to say that in such a case the court is entitled to disregard the statutory provision and is bound to follow a decision of its own given when that provision was not present to its mind. Cases of this description are examples of decisions given per incuriam. We do not think that it would be right to say that there may not be other cases of decisions given per incuriam in which this court might properly consider itself entitled not to follow an earlier decision of its own. Such cases would obviously be of the rarest occurrence and must be dealt with in accordance with their special facts.’

Lord Greene MR, Scott, MacKinnon, Luxmoore, Goddard and du Parcq LJJ
[1944] KB 718, 60 TLR 536, [1944] 2 All ER 293, (1945) 78 Ll L Rep 6, [1944] EWCA Civ 1
Hamlyn, Bailii, Bailii
England and Wales
Cited by:
Cited – Bakewell Management Ltd v Brandwood and Others ChD 21-Mar-2002
The claimant sought a declaration that he had acquired an easement over land by driving over it, over several years. The land owner denied the easement, saying that section 193 made the claimant’s activity a crime, and that, following Hanning, . .
Cited – Cassell and Co Ltd v Broome and Another HL 23-Feb-1972
Exemplary Damages Award in Defamation
The plaintiff had been awarded damages for defamation. The defendants pleaded justification. Before the trial the plaintiff gave notice that he wanted additional, exemplary, damages. The trial judge said that such a claim had to have been pleaded. . .
Cited – Roland Brandwood and others v Bakewell Management Ltd CA 30-Jan-2003
House owners had used vehicular access across a common to get to their houses for many years. The commons owner required them to purchase the right, and they replied that they had acquired the right by lost modern grant and/or by prescription.
Cited – Simpson v Regina CACD 23-May-2003
The appellant challenged a confiscation order made on his conviction of VAT fraud. It was argued that one could not be made unless a proper notice had been given, and none of the offences occurred before 1995. On the assumption that section 1 of the . .
Cited – Regina v Gould CACD 1968
Diplock LJ said: ‘In its criminal jurisdiction, which it has inherited from the Court of Criminal Appeal, the Court of Appeal does not apply the doctrine of stare decisis with the same rigidity as in its civil jurisdiction. If upon due consideration . .
Cited – Ferrishurst Ltd v Wallcite Ltd CA 30-Nov-1998
A person in actual occupation of registered land at time of transfer can enforce his rights against the transferee. A sub-underlessee in occupation of part could enforce an option to purchase against the freeholder acquiring intermediate registered . .
Affirmed – 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 . .
Cited – Sorrell v Sorrell FD 29-Jul-2005
The parties contested ancillary relief on their divorce. The marriage had been very long, and the assets were very substantial. The husband contended that these assets represented an exceptional contribution on his part.
Held: In this case an . .
Applied – Wilson v Chatterton CA 1946
The court considered the circumstances under which it could depart from its previous decision. Scott LJ said that it might be allowed on the basis of the earlier decision ‘being inconsistent with general principles laid down by the House of Lords . .
Cited – Woodward v Abbey National Plc CA 22-Jun-2006
The claimant appealed refusal to award damages after an alleged failure to give a proper reference, saying that the decision in Fadipe could not stand with the later decision in Rhys-Harper. She said that she had suffered victimisation after making . .
Cited – Miliangos v George Frank (Textiles) Ltd CA 1975
The court looked at what makes a case decided per incuriam: ‘a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.’ (Lord Denning MR) . .
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Department for Transport, Environment and the Regions v Mott Macdonald Ltd and others CA 27-Jul-2006
Claims arose from accidents caused by standing water on roadway surfaces after drains had not been cleared by the defendants over a long period of time. The Department appealed a decision giving it responsibility under a breach of statutory duty . .
Cited – Smith v Leicestershire Health Authority CA 29-Jan-1998
The plaintiff appealed a finding that she had sufficient knowledge of her possible claim for medical negligence against the defendants, and that she was out of time. She had known of her condition, but said she had no sufficient reason to see that . .
Cited – Tan and Another v Sitkowski CA 1-Feb-2007
The tenant claimed Rent Act protection for his tenancy. He had been rehoused and began his tenancy in 1970 with the ground floor used as a shop, and the first floor as living accomodation. He later abandoned the business use. He appealed a finding . .
Cited – Symbian Ltd v Comptroller General of Patents CA 8-Oct-2008
No Pattern Established to Patent Computer Systems
The Comptroller appealed against the decision in Chancery to grant a patent to the clamant for an invention which the comptroller said should have been excluded from protection under section 1(2) as a computer program. It was argued that the UK was . .
Cited – RJM, Regina (on the Application of) v Secretary of State for Work and Pensions HL 22-Oct-2008
The 1987 Regulations provided additional benefits for disabled persons, but excluded from benefit those who had nowhere to sleep. The claimant said this was irrational. He had been receiving the disability premium to his benefits, but this was . .
Cited – Singh v The Members of The Management Committe of The Bristol Sikh Temple and Others EAT 14-Feb-2012
EAT WORKING TIME REGULATIONS – Worker
NATIONAL MINIMUM WAGE ACT – Worker
The issue was whether the Priest at a Sikh Temple was a ‘worker’ within section 54(3)(b) of the National Minimum Wage Act 1998. . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Baxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Cited – Morelle Ltd v Wakeling CA 1955
The plaintiff asserted ownership of leasehold land. A similar situation had arisen in an earlier case befoe the Court of appeal, and the court was asked to decide that that case had been decided per incuriam.
Held: The per incuriam principle . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179844

Buttes Gas and Oil Co v Hammer (No 3): HL 1981

In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved in the dispute. The authorities concerning acts of state were reviewed for the purpose of a submission by the defendants that the action raised issues which were non-justiciable in English courts and should therefore be stayed. The motives of governments are not justiciable and courts should refrain from adjudicating upon them. The House considered an action by an officer of the Crown taken outside this country against foreigners otherwise than under colour of legal right.
Held: The principle of non-justiciability was applicable. ‘The important inter-state issues and/or issues of international law which would face the court . . have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. . [There are no judicial or manageable standards by which to judge [the] issues or to adopt another phrase . . the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law. I would just add . . that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment.’ and ‘ There is ‘a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states . . one for judicial restraint or abstention . . not one of discretion, but . . inherent in the very nature of the judicial process.’
On the plaintiff’s application to strike out the counterclaim, Lord Wilberforce concluded: ‘It would not be difficult to elaborate on these considerations, or to perceive other important inter-state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are – to follow the Fifth Circuit Court of Appeals – no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no-man’s land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were ‘unlawful’ under international law. I would just add, in answer to one of the respondents’ arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment.’

Lord Wilberforce
[1982] AC 888, [1981] 3 All ER 616, [1981] 3 WLR 787
England and Wales
Citing:
Approved – Duke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .
Appeal from – Buttes Gas and Oil Co v Hammer (No 3) CA 1981
The mere reference to a document in the pleadings was not an automatic waiver of any legal professional privilege. . .
Cited – Underhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .

Cited by:
Cited – Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – Corner House Research and Campaign Against Arms Trade, Regina (on the Application of) v Director of the Serious Fraud Office and Another Admn 10-Apr-2008
The defendant had had responsibility to investigate and if necessary prosecute a company suspected of serious offences of bribery and corruption in the conduct of contract negotiations. The investigation had been stopped, alledgedly at the . .
Cited – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
Cited – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Defamation, International, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179879

Director of Public Prosecutions v Hutchinson; Director of Public Prosecutions v Smith: HL 12 Jul 1990

Protesters objected that byelaws which had been made to prevent access to common land, namely Greenham Common were invalid.
Held: The byelaws did prejudice the rights of common. The House was concerned to clarify the test applicable when seeking to sever the valid from the invalid where part of subordinate legislation, the RAF Greenham Common Byelaws, was held to be ultra vires the enabling statute.
The fact that the invalid feature of the byelaw could not be excised with a blue pen did not preclude severance. What precluded it was that, if the byelaw was so construed as to allow the 62 commoners to enter the land, the legislative purpose behind it would be undermined.
The House set out a test of ‘substantial severability’ which the byelaws failed. Lord Bridge said: ‘When a legislative instrument made by a law-maker with limited powers is challenged, the only function of the court is to determine whether there has been a valid exercise of that limited legislative power in relation to the matter which is the subject of disputed enforcement. If a law-maker has validly exercised his power, the court may give effect to the law validly made. But if the court sees only an invalid law made in excess of the law-maker’s power, it has no jurisdiction to modify or adapt the law to bring it within the scope of the law-maker’s power. These, I believe, are the basic principles which have always to be borne in mind in deciding whether legislative provisions which on their face exceed the law-maker’s power may be severed so as to be upheld and enforced in part.
The application of these principles leads naturally and logically to what has traditionally been regarded as the test of severability. It is often referred to inelegantly as the ‘blue pencil’ test. Taking the simplest case of a single legislative instrument containing a number of separate clauses of which one exceeds the law-maker’s power, if the remaining clauses enact free-standing provisions which were intended to operate and are capable of operating independently of the offending clause, there is no reason why those clauses should not be upheld and enforced. The law-maker has validly exercised his power by making the valid clauses. The invalid clause may be disregarded as unrelated to, and having no effect upon, the operation of the valid clauses, which accordingly may be allowed to take effect without the necessity of any modification or adaptation by the court. What is involved is in truth a double test. I shall refer to the two aspects of the test as textual severability and substantial severability. A legislative instrument is textually severable if a clause, a sentence, a phrase or a single word may be disregarded, as exceeding the law-maker’s power, and what remains of the text is still grammatical and coherent. A legislative instrument is substantially severable if the substance of what remains after severance is essentially unchanged in legislative purpose, operation and effect. ‘ and ‘The test of textual severability has the great merit of simplicity and certainty. When it is satisfied the court can readily see whether the omission from the legislative text of so much as exceeds the law-maker’s power leaves in place a valid text which is capable of operating and was evidently intended to operate independently of the invalid text. But I have reached the conclusion, though not without hesitation, that a rigid insistence that the test of textual severability must always be satisfied if a provision is to be upheld and enforced as partially valid will in some cases . . have the unreasonable consequence of defeating subordinate legislation of which the substantial purpose and effect was clearly within the law-maker’s power when, by some oversight or misapprehension of the scope of that power, the text, as written, has a range of application which exceeds that scope. It is important, however, that in all cases an appropriate test of substantial severability should be applied. When textual severance is possible, the test of substantial severability will be satisfied when the valid text is unaffected by, and independent of, the invalid. The law which the court may then uphold and enforce is the very law which the legislator has enacted, not a different law. But when the court must modify the text in order to achieve severance, this can only be done when the court is satisfied that it is effecting no change in the substantial purpose and effect of the impugned provision.’

Lord Bridge, Lord Griffiths, Lord Oliver and Lord Goff
[1990] 2 AC 783, Times 13-Jul-1990, [1988] UKHL 11
Bailii
Military Lands Act 1892
England and Wales
Citing:
Cited – Rex v Company of Fishermen of Faversham 1799
Lord Kenyon CJ discussed the validity of a byelaw: ‘With regard to the form of the byelaw indeed, though a byelaw may be good in part and bad in part, yet it can be so only where the two parts are entire and distinct from each other.’ . .
Cited – Rex v Commonwealth Court of Conciliation and Arbitration, Ex parte Whybrow and Co 1910
The court considered the ability to sever void sections of statutes from other sections.
Held: Griffiths CJ said: ‘It is contended, on the authority of decisions of the Supreme Court of the United States, which are entitled to the greatest . .
Cited – The Employers’ Liability Cases 1908
(US Supreme Court) The court heard together two appeals regarding the range of federal jurisdiction to legislate for the regulation of interstate commerce. The true construction of the federal statute whose constitutionality was in issue was . .
Cited – Illinois Central Railroad Co v McKendree 1906
(US Supreme Court) An order of the Secretary of Agriculture purporting to fix a quarantine line under the Cattle Contagious Disease Act (1903), which applied in terms to all shipments, whether interstate or intrastate, was void, notwithstanding that . .
Cited – Strickland v Hayes CA 12-Feb-1896
A by-law made by a county council under s 16 of the 1888 Act, was in the following terms: ‘No person shall in any street or public place, or on land adjacent thereto, sing or recite any profane or obscene song or ballad, or use any profane or . .
Cited – Regina v Lundie QBD 1862
A byelaw provided: ‘if any person shall stock or depasture, inter alia, a vicious horse on any part of the common pastures, then, and in every such case, the person or persons so offending, and the owner or owners of the said stock and cattle, shall . .

Cited by:
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Commissioner of Police v Davis PC 1994
(Bahamas) Certain statutory provisions relating to drug offences infringed the Constitution of The Bahamas. A question then arose on the severability of one of the offending statutory provisions, section 22(8) of the Dangerous Drugs Act. This . .
Cited – Oakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Cited – National Association of Health Stores and Another, Regina (on the Application of) v Department of Health CA 22-Feb-2005
Applications were made to strike down regulations governing the use of the herbal product kava-kava.
Held: The omission of any transtitional provisions had not affected anyone. Nor was the failure to consult as to the possibility of dealing . .
Cited – Regina v Warwickshire County Council ex parte Powergen Plc CA 31-Jul-1997
The council as highway authority had objected to a development on the grounds of road safety. The application was subsequently approved by the Secretary of State, but the Council sought to maintain its safety objection.
Held: The highway . .
Cited – Futter and Another v Revenue and Customs; Pitt v Same SC 9-May-2013
Application of Hastings-Bass Rule
F had created two settlements. Distributions were made, but overlooking the effect of section 2(4) of the 2002 Act, creating a large tax liability. P had taken advice on the investment of the proceeds of a damages claim and created a discretionary . .
Cited – T and Another, Regina (on The Application of) v Secretary of State for The Home Department and Another SC 18-Jun-2014
T and JB, asserted that the reference in certificates issued by the state to cautions given to them violated their right to respect for their private life under article 8 of the Convention. T further claims that the obligation cast upon him to . .
Cited – Hemming (T/A Simply Pleasure) and Others, Regina (on The Application of) v Westminster City Council SC 19-Jul-2017
The claimant challenged fees which were charged to the respondents on applying to Westminster City Council for sex shop licences for the three years ended 31 January 2011, 2012 and 2013 and which included the council’s costs of enforcing the . .

Lists of cited by and citing cases may be incomplete.

Land, Constitutional, Armed Forces

Leading Case

Updated: 01 November 2021; Ref: scu.187749

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 Parliamentary privilege.
Held: A Defendant may not use libel proceedings to impugn proceedings in Parliament in his defence though the proceedings might accordingly be stayed. ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ This provision is part of the wider principle that the courts and Parliament are both astute to recognise their constitutional roles.
Lord Browne-Wilkinson said: ‘In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative function and protection of its established privileges.’
The ‘case illustrate[s] how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings.
For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House . .’

Lord Browne-Wilkinson, Lord keith, Lord Goff, Lord Mustill, Lord Nolan
Times 13-Jul-1994, Gazette 26-Oct-1994, [1995] 1 AC 321, [1994] 3 NZLR 1, [1994] 3 WLR 970
Bailii
Bill of Rights 1689 9
England and Wales
Citing:
Cited – Comalco Ltd v Australian Broadcasting Corporation 1983
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: ‘I think that the way in . .
Cited – Sir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
Cited – Stockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
Cited – John Joseph Stockdale v James Hansard, Luke Graves Hansard, Luke James Hansard, And Luke Henry Hansard 1839
It is no defence in law to an action for publishing a libel that the defamatory matter is part of a document which was, by order of the House of Comnions, laid before the House, and thereupon became part of the proceedings of the House, and which . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Rex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
Cited – Pepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Not followed – Wright and Advertiser Newspapers Limited v Lewis 1990
(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Church of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
Cited – Bradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
Cited – Adam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
Cited – Derbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
Cited – News Media Ownership v Finlay 1970
(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of . .

Cited by:
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 of its property . .
Cited – The Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
Cited – Reynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
Cited – Harmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .
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 – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – 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 – Weir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
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 – 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 – Age UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
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 – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
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 . .
Distinguished on the facts – Blake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.85015

Regina v Oakes: 28 Feb 1986

Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not reverse onus in violation of s. 11(d) of the Charter — Whether or not reverse onus a reasonable limit to s. 11(d) and justified in a free and democratic society — Canadian Charter of Rights and Freedoms, ss. 1, 11(d) — Narcotic Control Act, R.S.C. 1970, c. N-1, ss. 3(1), (2), 4(1), (2), (3), 8.
Criminal law — Presumption of innocence — Reverse onus — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — Whether or not constitutional guarantee of presumption of innocence (s. 11(d) of the Charter) violated.

Dickson C.J. and Estey, McIntyre, Chouinard, Lamer, Wilson and Le Dain JJ.
[1986] 1 SCR 103, 1986 CanLII 46 (SCC), 53 OR (2d) 719, 24 CCC (3d) 321, 50 CR (3d) 1, 65 NR 87, [1986] CarswellOnt 95, EYB 1986-67556, [1986] SCJ No 7 (QL), 14 OAC 335, 16 WCB 73, [1986] ACS no 7, 19 CRR 308
Canlii
Canada
Cited by:
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Crime

Leading Case

Updated: 01 November 2021; Ref: scu.564962

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 in Her Majesty’s courts.’
‘The Prime Minister’s decision that Parliament should be prorogued at the time and for the duration chosen and the advice given to Her Majesty to do so in the present case were political. They were inherently political in nature and there are no legal standards against which to judge their legitimacy.’
and:
‘it is impossible for the court to make a legal assessment of whether the duration of the prorogation was excessive by reference to any measure. There is no legal measure of the length of time between Parliamentary sessions. There is not even a constitutional convention which governs the matter, albeit that constitutional conventions are not justiciable’
and:
‘even if the prorogation under consideration in the present case was, as the claimant and the interveners contend, designed to advance the Government’s political agenda regarding withdrawal from the European Union rather than preparations for the Queen’s Speech, that is not territory in which a court can enter with judicial review.’

The Lord Burnett of Maldon CJ, Sir Terence Etherton MR, Dame Victoria Sharp P
[2019] EWHC 2381 (QB), CO/3385/2019, [2019] WLR(D) 511
Bailii, Bailii Summary, WLRD, Judiciary
European Union (Notification of Withdrawal) Act 2017, European Union (Withdrawal) Act 2018
England and Wales
Citing:
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 Foreign Secretary ex parte Everett CA 20-Oct-1988
A decision taken under the royal prerogative whether or not to issue a passport was subject to judicial review, although relief was refused on the facts of the particular case.
Taylor LJ summarised the effect of the GCHQ case as making clear . .
Cited – Regina v Secretary of State for the Home Department Ex Parte Bentley QBD 8-Jul-1993
Bentley had been convicted of the murder of a policeman. He was of low intelligence and he was captured. His co-accused still held a gun. He shouted out ‘Let him have it’ He was convicted, but had said that he had only intended for the gun to be . .
Cited – Lewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Sandiford, Regina (on The Application of) v The Secretary of State for Foreign and Commonwealth Affairs SC 16-Jul-2014
The appellant a British Citizen awaited execution in Singapore after conviction on a drugs charge. The only way she might get legal help for a further appeal would be if she was given legal aid by the respondent. She sought assistance both on Human . .
See Also – 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 – 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 – 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 . .
Cited – McClean, Regina (on The Application of) v First Secretary of State and Another Admn 26-Oct-2017
Challenge to ‘confidence and supply’ agreement between the conservatives and Democratic Unionist Party of Northern Ireland on the basis that it was based upon an unlawful agreement
Sales LJ said: ‘The claimant says that the government had an . .
Cited – Pickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
Cited – Unison, Regina (on The Application of) v Lord Chancellor SC 26-Jul-2017
The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The . .
Cited – Gibson v Lord Advocate 1975
Lord Keith reserved his opinion on whether provisions in the Acts of Union of 1707 and legislation purporting to abolish the Church of Scotland were justiciable: ‘The making of decisions upon what must essentially be a political matter is no part of . .
Cited – Rahmatullah (No 2) v Ministry of Defence and Another SC 17-Jan-2017
‘another round in the series of important points of law which arise as preliminary issues in actions brought by people who claim to have been wrongfully detained or mistreated by British or American troops in the course of the conflicts in Iraq and . .
Cited – Regina v Secretary of State for the Home Department ex parte Fire Brigades Union HL 5-Apr-1995
Parliament had passed the 1988 Act which provided for a new Criminal Injuries Compensation Scheme. Instead of implementing the Act, the Home Secretary drew up a non-statutory scheme for a tarriff based system by using prerogative powers. The . .
Cited – Shergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
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 – 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 – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
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 – Bobb and Another v Manning PC 25-Apr-2006
(From Court of Appeal, Trinidad and Tobago) The appellants, electors in one of the state’s electoral districts, applied for leave to apply for judicial review, seeking remedies to resolve the ongoing constitutional crisis. Their complaint was that . .

Cited by:
Appeal from – 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: 01 November 2021; Ref: scu.641122

Commission v Council – C-25/94: ECJ 19 Mar 1996

ECJ 1. The Permanent Representatives’ Committee is not an institution of the Communities upon which the Treaty confers powers of its own but an auxiliary body of the Council, for which it carries out preparation and implementation work, as is clear from Article 145 of the Treaty, which provides that the Council shall have power to take decisions, and from Article 151(1), which provides that Coreper is responsible for preparing the work of the Council and for carrying out the tasks assigned to it by the Council.
Since Coreper’ s function of carrying out the tasks assigned to it by the Council does not give it the power to take decisions which belongs, under the Treaty, to the Council, a decision giving the Member States the right to vote in an international organization for the adoption of an agreement cannot be ascribed to Coreper or regarded as confirming a previous Coreper decision.
2. A decision of the Council giving the Member States the right to vote in the United Nations Food and Agriculture Organization for the adoption of an agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas constitutes an act having legal effects and thus one against which an action for annulment may be brought under Article 173 of the Treaty.
As regards relations between the Community and the Member States, between the institutions of the Community and between the Community and its Member States on the one hand and other subjects of international law, especially the said organization and its Member States, on the other, that decision had legal consequences which preclude it from being regarded as a matter purely of procedure or protocol.
3. A statement entered in the minutes of the Council meeting at which a decision was taken cannot be used for the purpose of determining the scope of that decision where no reference is made to the content of that statement in the text of the decision in question, and therefore has no legal significance.
4. Where, in implementation of the obligation of close cooperation between the Member States and the Community institutions which flows from the requirement of unity in the international representation of the Community, the Council and the Commission have entered into an arrangement which they intended as a binding commitment towards each other and under which, once a common position is established, the Commission is to exercise the right to vote in the United Nations Food and Agriculture Organization in areas falling essentially within the exclusive competence of the Community, a decision of the Council giving the Member States the right to vote for the adoption of an agreement to promote compliance with international conservation and management measures by fishing vessels on the high seas must be annulled because it is in breach of that arrangement; the subject-matter of such an agreement falls essentially within the exclusive competence of the Community as regards conservation of the biological resources of the sea.

GC Rodriguez Iglesias, P
[1996] EUECJ C-25/94
Bailii
European

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.161276

McGonnell v The United Kingdom: ECHR 8 Feb 2000

The applicant owned land in the parish of St Martin’s in Guernsey. He made a number of applications for planning permission for residential use, but they were all rejected. In about 1986 he moved into a converted packing shed on his land. In 1988 a draft Detailed Development Plan for the island was under consideration and, at the public inquiry, the applicant made representations to the effect that construction of a residential building on his land should be permitted. The inspector rejected that contention and supported the proposal in the draft development plan for the land to be zoned as an area reserved for agricultural purposes and in which development was generally prohibited. In 1990 the States of Deliberation, presided over by the Deputy Bailiff, Mr Graham Dorey, debated and adopted the development plan. Three years later the applicant made a formal application for a change of use for his land. The relevant planning committee rejected the application and the applicant appealed to the Royal Court, comprising the Bailiff, Sir Graham Dorey, and seven Jurats. The applicant’s representative accepted that the written statement in the development plan provided for no development other than Developed Glasshouse, but he submitted that there were none the less reasons to permit a change of use in the particular case. The Royal Court dismissed the appeal. Where a member of a legislature with some direct responsibility for the passing of legislation was also acting as a member of the judiciary with responsibility for enforcing the laws passed, this inevitably gave an impression of bias and lack of impartiality. Here the Deputy Bailiff of Guernsey was also President of the states of direction. Consideration must be given to the method and security of judicial appointments, guarantees against outside pressures, and whether there was a proper presentation of independence: ‘ the mere fact that the Deputy Bailiff presided over the States of Deliberation when DDP6 was adopted in 1990 is capable of casting doubt on his impartiality when he subsequently determined, as the sole judge of the law in the case, the applicant’s planning appeal. The applicant therefore had legitimate grounds for fearing that the Bailiff may have been influenced by his prior participation in the adoption of DDP6. That doubt in itself, however slight its justification, is sufficient to vitiate the impartiality of the Royal Court, ‘

Times 22-Feb-2000, 28488/95, (2000) 30 EHRR 289, [2000] ECHR 62
Bailii
European Convention on Human Rights Art 6.1
Human Rights
Citing:
Cited – Findlay v The United Kingdom ECHR 25-Feb-1997
The applicant complained that the members of a court-martial were appointed by the Convening Officer, who was closely linked to the prosecuting authorities. The members of the court-martial were subordinate in rank to the Convening Officer who had . .

Cited by:
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 . .
Distinguished – Pabla Ky v Finland ECHR 22-Jun-2004
A member of the Finnish Parliament who also sat as an expert member of the Court of Appeal was said to lack independence as a judge.
Held: The complaint was rejected. Also there was no no objective justification for the applicant’s fear as to . .
Cited – Al-Hasan, Regina (on the Application of) v Secretary of State for the Home Department HL 16-Feb-2005
Prisoners were disciplined after refusing to be squat searched, saying that the procedure was humiliating and that there were no reasonable grounds to suspect them of any offence against prison discipline. The officer who had been involved in . .
Cited – Barclay and Others, Regina (on the Application of) v The Seigneur of Sark and Another Admn 18-Jun-2008
The claimants said that the the laws restricting residence and voting rights and oher constitutional arrangements on the Isle of Sark were in breach of European law, and human rights law.
Held: The claims failed. The composition of Chief Pleas . .
Cited – Barclay and Others, Regina (on the Application of) v Secretary of State for Justice and others CA 2-Dec-2008
The claimant appealed against refusal of his challenge to the new constitutional law for Sark, and sought a declaration of incompatibility under the 1998 Act. He said that by restricting the people who could stand for election, a free democracy had . .
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.
Constitutional, Human Rights

Leading Case

Updated: 01 November 2021; Ref: scu.165817

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 objection to the use of leaked materials, saying that this would be a breach of the Official Secrets Act and of the Diplomatic Privileges Act.
Held: The claim failed. The objection was sustained, and the decision to admit the documents in evidence reversed under the 1964 Act, it being now ‘a settled principle of public international and municipal law, that the inviolability of diplomatic communications requires that judicial authorities of states parties to the 1961 Convention should, in the absence of consent by the sending state, exclude illicitly obtained diplomatic documents and correspondence from judicial proceedings.’ The decision had not been taken on improper grounds.

Richards LJ, Mitting J
[2013] EWHC 1502 (Admin)
Bailii
Official Secrets Act 1989 2(2), Diplomatic Privileges Act 1964, Vienna Convention on Diplomatic Relations 1961
England and Wales
Citing:
See Also – Regina v Secretary of State for Home Department ex parte Bancoult Admn 3-Mar-1999
Application for leave to appeal granted. . .
See Also – 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: . .
See Also – 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 . .
See Also – 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 . .
See Also – 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 . .
See Also – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
See Also – Chagos Islanders v Attorney-General and Another CA 22-Jul-2004
The claimants sought leave to appeal against a finding that they had no cause of action for their expulsion from their islands.
Held: ‘Exile without colour of law is forbidden by Magna Carta. That it can amount to a public law wrong is already . .
Directions – 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. . .
Directions – 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. . .
At ECHR – Chagos Islanders v The United Kingdom ECHR 11-Dec-2012
Chagossians applied to the Court complaining inter alia about their removal from the Chagos islands and the prohibition on their return.
Held: The application was dismissed as manifestly unfounded and accordingly inadmissible . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2) HL 1988
Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the . .
Cited – Bank Mellat v Council Of The European Union, European Commission ECFI 29-Jan-2013
ECJ Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Obligation to state reasons – Rights of the defence – Right to . .
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 – El-Masri v The Former Yugoslav Republic of Macedonia ECHR 13-Dec-2012
(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated . .
Cited – Stirling, Regina (on The Application of) v London Borough of Haringey CA 22-Feb-2013
The applicant sought judicial review of the approach taken by the respondent to the Council Tax reduction scheme, following the abolition of Council Tax Benefit. They now appealed against rejection of that challenge.
Held: The appeal failed. . .
Cited – Rex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .
Cited – Fayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .

Cited by:
Evidence emerged – 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.
Appeal from (Admn) – 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 . .
At First Instance (Admn) – Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

European, Environment, Constitutional, Litigation Practice, Evidence

Updated: 01 November 2021; Ref: scu.510721