Kanda v Government of the Federation of Malaya: PC 2 Apr 1962

A police Inspector had been dismissed on a finding of an offence against discipline. . He complained that he had not been allowed to see the report of the Board of Inquiry which contained prejudicial material and which had been relied upon by the officer adjudicating his case.
Held: The failure amounted to a denial of a reasonable opportunity of being heard in answer to the charge and was unfair. Where a conflict was found between an existing law and a provision of the constitution, the Constitution had to prevail.
An essential requirements of natural justice at least include that before someone is condemned he is to have an opportunity of defending himself, and in order that he may do so that he is to be made aware of the charges or allegations or suggestions which he has to meet.
Lord Denning said: ‘In the opinion of their Lordships, however, the proper approach is somewhat different. The rule against bias is one thing. The right to be heard is another. Those two rules are the essential characteristics of what is often called natural justice. They are the twin pillars supporting it. The Romans put them in the two maxims: Nemo judex in causa sua: and Audi alteram partem. They have recently been put in the two words, Impartiality and Fairness. But they are separate concepts and are governed by separate considerations. In the present case inspector Kanda complained of a breach of the second. He said that his constitutional right had been infringed. He had been dismissed without being given a reasonable opportunity of being heard.
If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence is given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them . . it follows, of course, that the Judge or whoever has to adjudicate must not hear evidence or receive representations from one side behind the back of the other. The Court will not enquire whether the evidence or representations did work to his prejudice. Sufficient that they might do so. The Court will not go into the likelihood of prejudice. The risk of it is enough. No one who has lost a case will believe he has been fairly treated if the other side has had access to the Judge without his knowing.’ Lord Denning considered the conflict between the provisions under review and the Malaysian constitution: ‘If there was in any respect a conflict between the existing law and the Constitution . . then the existing law would have to be modified so as to accord with the Constitution.’ and ‘In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution.’

Lord Denning, Lord Hodson, Lord Devlin
[1962] AC 322, [1962] UKPC 2, [1962] 2 WLR 1153, [1962] UKPC 10
Bailii, Bailii
England and Wales
Cited by:
Cited – Regina v Criminal Injuries Compensation Authority ex parte Leatherland and Criminal Injuries Compensation Board ex parte Bramall and Criminal Injuries Compensation Panel ex parte Kay Admn 4-Apr-1998
. .
Cited – Ramda, Regina (on the Application of) v Secretary of State for the Home Department Admn 27-Jun-2002
The Government of France sought the extradition of Ramda wanted by them for trial in connection with a series of terrorist bombings in France. The applicant resisted extradition to France on the ground that the evidence which would be relied on . .
Cited – P Varghai v Caffyns Plc EAT 19-Dec-2003
EAT Race Discrimination – Inferring discrimination . .
Cited – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
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 – Director of Public Prosecutions of Jamaica v Mollison (No 2) PC 22-Jan-2003
(Jamaica ) The appellant had been convicted of murder as a youth. He was sentenced to be detained during Her Majesty’s pleasure. The actual length of time to be served was decided by the Governor-General. The decision by the Governor was clearly a . .
Cited – Balkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.251508

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 appropriate Regulations.
Held: The appeal succeeded: ‘the Ministers’ failure to exercise their power to make the necessary regulations under section 268(11) and (12) of the 2003 Act by 1 May 2006, or since that date, has had the result that, although sections 268 to 271 are technically in force, they have no more practical effect today than they had on the date, more than nine years ago, when the 2003 Act received Royal Assent. The Ministers’ failure to make the necessary regulations has thus thwarted the intention of the Scottish Parliament. It therefore was, and is, unlawful.’

Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 58, 2012 GWD 40-774, [2012] 1 WLR 3386, [2012] WLR(D) 365, UKSC 2011/0212
Bailii, Bailii Summary, SC Summary, SC
Mental Health (Care and Treatment) (Scotland) Act 2003, Interpretation Act 1978, Interpretation and Legislative Reform (Scotland) Act 2010
Scotland
Citing:
Outer House – RM v The Scottish Ministers SCS 27-Aug-2008
The petitioner, a detained mental patient challenged the validity of orders made by the Mental Health Tribunal established under the 2003 Act. He said that, the respondents having not passed regulations providing complete processes for the . .
Appeal from – RM, Re Judicial Review SCS 21-Mar-2012
The applicant was detained in a mental hospital. After losing a challenge to being moved to a higher security section he found that he was unable to appeal because the Scottish Parliament had not passed Regulations proving the structure for an . .
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Cited – Singh (Pargan) v Secretary of State for the Home Department HL 10-Mar-1993
An issue arose as to whether the Secretary of State was required by section 18 of the Immigration Act 1981 to make regulations concerning the giving of notice of a decision for the purposes of appeal. if regulations were not made, the right of . .
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 – 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 – 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 . .
Cited – Rex v Minister of Town and Country Planning, Ex parte Montague Burton Ltd CA 1951
Section 37 of the 1889 Act provided that where an Act was not to come into operation immediately, and it conferred power to make regulations or other instruments for the purposes of the Act, that power could be exercised at any time after the . .
Cited – Usher v Barlow CA 1952
A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation . .
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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Health

Updated: 01 November 2021; Ref: scu.466370

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 his case in the US. The remaining issue was as to whether the earlier judgment should now be made available without redactions.
Held: An allegation of cruel, inhuman or degrading treatment was to be treated on the same basis as torture in the circumstances of the present case, and a claim to conceal evidence of cruel, inhuman or degrading treatment or torture under the guise of public interest immunity could not be countenanced as it was incompatible with international law and values. ‘It is the upholding of the rule of law . . that is a factor of the greatest public interest in this case, given the allegations against officials of the United States Government and the role of officials of the Government of the United Kingdom in facilitating what is alleged.’ The requirements of open justice, the rule of law and democratic accountability demonstrate the very considerable public interest in making the redacted paragraphs public, particularly given the constitutional importance of the prohibition against torture and its historic link from the seventeenth century in this jurisdiction to the necessity of open justice. Nevertheless the US had threatened that disclosure would undermine the intelligence relationship with the UK. The alternatives were not adequate. The court could not go behind the Foreign Secretary’s assertion that disclosure would undermine the ability of the state to protect its citizens. The details would not be disclosed. If they are to be disclosed it must be by the US government.
The court identified four questions for redaction:- a) Is there a public interest in bringing the redacted paragraph into the public domain? b) Will disclosure bring about a real risk of serious harm to an important public interest, and if so, which interest? c) Can the real risk of serious harm to national security be protected by other methods or more limited disclosure? d) If the alternatives are insufficient, where does the balance of the public interest lie?

Thomas LJ, Lloyd Jones J
[2009] EWHC 152 (Admin)
Bailii
England and Wales
Citing:
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 29-Aug-2008
The claimant sought release of documents so that he could defend himself in a tribunal in the US. He said the documents would support his assertion that he had been subject to extraordinary rendition and had ‘disappeared’ for two years. Redactions . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs, Admn 22-Oct-2008
The claimant was held by the US. He claimed he had been tortured by them, and sought release of dicuments which allow him to present his case. The respondent sought to prevent disclosure using Public Interest Immunity (PII) certificates.
Held: . .
Cited – Norwich Pharmacal Co and others v Customs and Excise Commissioners HL 26-Jun-1973
Innocent third Party May still have duty to assist
The plaintiffs sought discovery from the defendants of documents received by them innocently in the exercise of their statutory functions. They sought to identify people who had been importing drugs unlawfully manufactured in breach of their . .
Cited – Attorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
Cited – ex parte Guardian Newspapers Ltd CACD 30-Sep-1998
The defendants purported to serve a notice under Rule 24A(1) of the Crown Court Rules 1982 of an intention to apply for a hearing in camera of their application that the trial be stopped as an abuse of process.
Held: Where an application was . .
Cited – C v Crown Prosecution Service Admn 8-Feb-2008
The court considered the practice of hearing submissions from the media in relation to reporting restrictions.
Held: Thomas LJ rejected the submission that, in conducting the Re S balancing exercise the Court should have regard to the public . .
Cited – Secretary of State for the Home Department v MB; Same v AF HL 31-Oct-2007
Non-derogating control orders – HR Compliant
MB and AF challenged non-derogating control orders made under the 2005 Act, saying that they were incompatible with their human rights. AF was subject to a curfew of 14 hours a day, wore an electronic tag at all times, could not leave a nine square . .
Cited – Williams v Home Office (No 2) 2-Jan-1981
The plaintiff prisoner had been transferred from ordinary prison to a special control unit which had been established at the prison as a means of containing and controlling prisoners who were considered to be troublemakers and inducing them to . .
Cited – Regina v Chief Constable of West Midlands Police Ex Parte Wiley; Other Similar HL 14-Jul-1994
Statements made to the police to support a complaint against the police, were not part of the class of statements which could attract public interest immunity, and were therefore liable to disclosure.
Lord Woolf said: ‘The recognition of a new . .
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – 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 Keane CACD 15-Mar-1994
Public Interest Immunity Certificates for the protection of informants must be used only carefully. The Crown must specify the purpose of the public interest immunity certificate. The principles on disclosure in Ward are not limited to scientific . .
Cited – Regina v Horseferry Road Magistrates’ Court, ex Parte Bennett (No 1) HL 24-Jun-1993
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had, in effect, been kidnapped by the authorities.
Held: The High Court may look at how an accused person was brought within the jurisdiction when . .
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 – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
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 – McCartan Turkington Breen (A Firm) v Times Newspapers Limited HL 2-Nov-2000
(Northern Ireland) The defendant reported a press conference at which the claims denying the criminal responsibility of an army private were made. The report was severely critical of the claimants, who then sued in defamation. The defendants claimed . .
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 – Castells v Spain ECHR 23-Apr-1992
The conviction of the applicant for publishing in a weekly magazine an article which insulted the government with the penalty of disqualification from public office, violated the applicants freedom of expression within the meaning of Article 10. ‘ . .
Cited – Observer and Guardian v The United Kingdom ECHR 26-Nov-1991
The newspapers challenged orders preventing their publication of extracts of the ‘Spycatcher’ book.
Held: The dangers inherent in prior restraints are such that they call for the most careful scrutiny on the part of the court. This is . .
Cited – Pretto And Others v Italy ECHR 8-Dec-1983
The court considered the value of court proceedings being public: ‘The public character of proceedings before the judicial bodies referred to in Article 6(1) protects litigants against the administration of justice in secret with no public scrutiny; . .
Cited – Campbell and Fell v The United Kingdom ECHR 28-Jun-1984
Campbell and others had been involved in conduct within the prison leading to charges against them of mutiny and of striking an officer with a broom handle. The nature of the conduct in question was plainly susceptible of giving rise to criminal . .
Cited – Hector v Attorney General of Antigua PC 1990
Lord Bridge of Harwich said that: ‘In a free democratic society it is almost too obvious to need stating that those who hold office in government and who are responsible for public administration must always be open to criticism. Any attempt to . .
Cited – Regina v Felixstowe Justices ex parte Leigh CA 1987
The court considered the importance of the role played by the media in attending and reporting court proceedings. Watkins LJ said: ‘The role of the journalist and his importance for the public interest in the administration of justice has been . .
Cited – Assenov and Others v Bulgaria ECHR 28-Oct-1998
An allegation of violence by a police officer did require a thorough, impartial and careful investigation by a suitable and independent state authority: ‘The court considers that in these circumstances, where an individual raises an arguable claim . .
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 – Secretary of State for the Home Department v Rehman HL 11-Oct-2001
The applicant, a Pakistani national had entered the UK to act as a Muslim priest. The Home Secretary was satisfied that he was associated with a Muslim terrorist organisation, and refused indefinite leave to remain. The Home Secretary provided both . .
Cited – Tweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .

Cited by:
Cited – Al-Sweady and Others, Regina (On the Application of) v Secretary Of State for Defence (PII) Admn 10-Jul-2009
The claimants alleged murder and ill-treatment by the British Armed forces in Iraq. The defendant had failed repeatedly to comply with disclosure orders and an indemnity costs award had been made against him. The defendant had in particular . .
See Also – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 5) Admn 16-Oct-2009
The claimant sought to assert that he had been tortured whilst held by the US Authorities. He sought publication of an unredacted report supplied by the US security services to the respondent. The respondent argued that the full publication was . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (60 Admn 19-Nov-2009
The respondent had over time refused to allow publication of parts of a document disclosed to him by US security services. The court had previously delivered redacted judgments, and now asked whether and to what extent the redacted parts should be . .
See Also – Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 10-Feb-2010
The claimant had sought discovery and publication of materials supplied to the defendant by US security services which, he said, would support his allegations that he had been tortured by the US and that this had been known to the defendant.
See Also – Binyan Mohamed, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 26-Feb-2010
The claimant had sought public disclosure of documents supplied to the defendant by US security services which might support his claim that he had been tortured by the US, and that the defendant knew of it. The draft judgment was to be handed down . .

Lists of cited by and citing cases may be incomplete.

Administrative, Human Rights, Constitutional, Media

Updated: 01 November 2021; Ref: scu.282626

Rex v Cheltenham Commissioners: QBD 1841

A statute provided that any decision of the Quarter Sessions as to the levying of certain rates was to be ‘final, binding, and conclusive to all intents and purposes whatsoever’, and that no order made in that connection ‘shall . . be removed or removable by certiorari, or any other writ or process whatsoever, . . ; any law or statute to the contrary thereof in anywise notwithstanding’. An application was made on the basis that one member of the tribunal was disqualified.
Held: Certiorari did lie. Lord Denman CJ said: ‘the clause which takes away the certiorari does not preclude our exercising a superintendence over the proceedings, so far as to see that what is done shall be in pursuance of the statute. The statute cannot affect our right and duty to see justice executed; and, here, I am clearly of opinion that justice has not been executed.’

Lord Denman CJ
(1841) 3 QBD 467, [1841] EngR 582, (1841) 1 QB 466, (1841) 113 ER 1211
Commonlii
Cited by:
Cited – Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others Admn 1-Dec-2009
The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Administrative, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.222198

Great Northern Railway Co v Sunburst Oil and Refining Co: 1932

(US Supreme Court) The Constitution neither prohibits nor requires prospective overruling. The Federal Court, Cardoza J said, ‘has no voice upon the subject.’

Justice Cardozo
[1932] 287 US 358
United States
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.228286

Regina v Burstow, Regina v Ireland: HL 24 Jul 1997

The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes fear of immediate and unlawful violence. The court asked how is it to be determined whether a statute is an always speaking statute or one tied to the circumstances existing when it was passed: ‘In cases where the problem arises it is a matter of interpretation whether a court must search for the historical or original meaning of a statute or whether it is free to apply the current meaning of the statute to present day conditions. Statutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. But the drafting technique of Lord Thring and his successors have brought about the situation that statutes will generally be found to be of the ‘always speaking’ variety. Assault, as a criminal offence, may take two forms: (1) unlawful application of force upon a victim, which is called battery, (2) causing the victim to fear an imminent application of force.
Lord Steyn noted that the case of Chan-Fook involved the quashing of the conviction on the ground, inter alia, of the ‘absence of psychiatric evidence to support the prosecution’s alternative case’. However, he stated: ‘The interest of the decision lies in the reasoning on psychiatric injury in the context of Section 47 . . The ruling in that case was based on principled and cogent reasoning and it marked a sound and essential clarification of the law’.

Lord Steyn, Lord Hope of Craighead
[1997] UKHL 34, [1998] 1 Cr App Rep 177, [1998] AC 147, [1997] 4 All ER 225, [1997] 3 WLR 534
Bailii
Offences Against the Person Act 1861 20 47
England and Wales
Citing:
Cited – Royal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
Appeal from – Regina v Burstow Admn 29-Jul-1996
Grievous bodily harm can be inflicted by a stalker without direct physical contact and can include psychological damage. The statute could be interpreted to reflect current standards. . .
Appeal from – Regina v Ireland CACD 14-May-1996
Silent telephone calls which resulted in psychiatric damage to the victim could constitute an ‘assault occasioning actual bodily harm’ for the purposes of section 47 of the 1861 Act. Swinton Thomas LJ said: ‘The early cases pre-date the invention of . .
Approved – Regina v Chan-Fook CACD 15-Nov-1993
‘Actual bodily harm’ under the 1861 Act, may include injury to any part of the body, including internal organs, the nervous system and the brain. It is capable of including psychiatric injury, but not mere emotion such as fear, distress or panic. . .
Approved – Regina v Savage; Director of Public Prosecutions v Parmenter HL 7-Nov-1991
The first defendant had been convicted of wounding. She had intended to throw beer over her victim, but her glass slipped from her hand, and cut the victim. The second defendant threw his three year old child in the air and caught him, not realising . .
Cited – Fagan v Metropolitan Commissioner 31-Jul-1968
The defendant was told by a police officer to park up his car. He did so, but stopped with his wheel, trapping the officer’s foot. The magistrates were unable to decide whether the parking on the officer’s foot was deliberate, but agreed that . .

Cited by:
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Jarrett v Chief Constable of West Midlands Police CA 14-Feb-2003
The claimant sought damages for false imprisonment and assault after her wrongful arrest. She had waived her handbag at an officer investigating a disturbance and been arrested. The police said the arrest was lawful, she being suspected of common . .
Cited – Balkissoon Roodal v The State PC 20-Nov-2003
(Trinidad and Tobago) The appellant challenged the automatic death sentence imposed upon him for murder.
Held: There were conflicting constitutional provisions. Following Fisher, in the context of issues of capital sentences a wider view was . .
Appealed to – Regina v Ireland CACD 14-May-1996
Silent telephone calls which resulted in psychiatric damage to the victim could constitute an ‘assault occasioning actual bodily harm’ for the purposes of section 47 of the 1861 Act. Swinton Thomas LJ said: ‘The early cases pre-date the invention of . .
Cited – B (A Minor) v Director of Public Prosecutions HL 23-Feb-2000
Prosecution to prove absence of genuine belief
To convict a defendant under the 1960 Act, the prosecution had the burden of proving the absence of a genuine belief in the defendant’s mind that the victim was 14 or over. The Act itself said nothing about any mental element, so the assumption must . .
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 – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Regina (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 – 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 – Yemshaw v London Borough of Hounslow SC 26-Jan-2011
The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended . .
Cited – Coates v Crown Prosecution Service Admn 29-Jul-2011
The defendant appealed by case stated against his conviction for driving a Segway scooter on a footpath. He denied that it was ‘a mechanically propelled vehicle intended or adapted for use on roads.’
Held: The appeal failed. The district judge . .
Cited – Regina v Morris CACD 22-Oct-1997
An allegation of assault occasioning bodily harm, where the harm alleged was of a purely psychological nature, must be supported by psychiatric evidence. . .
Cited – Golding, Regina v CACD 8-May-2014
The defendant appealed against his conviction on a guilty plea, of inflicting grievous bodily harm under section 20. He suffered genital herpes, but had unprotected sex and acknowledged acting recklessly. He said that the prosecution had failed to . .
Cited – Haystead v Director of Public Prosecutions QBD 2-Jun-2000
The defendant had hit a mother in the face as she held the child. The force was sufficient to cause her to drop the child causing injury to the child. He appealed against a conviction for beating the child.
Held: The appeal failed. A battery . .
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.158907

Heil v Rankin, Rees v Mabco (102) Ltd, Schofield v Saunders and Taylor Ltd and Other cases: CA 23 Mar 2000

The Law Commission had recommended that the general level of damages awarded for pain suffering and loss of amenity in personal injury cases should be raised. The Court now considered several cases on the issue.
Held: The court would do so. Awards above pounds 10,000 should be raised on a sliding scale to a one third proportion in the most severe cases. No change in principle was involved. It was proper for the Court of Appeal to respond to such a report provided it confined its answer to provision of tariffs. The old awards had become out of line with what society as a whole would consider reasonable.

Lord Woolf MR, Beldam, Otton, May LJJ, Nelson J
Times 24-Mar-2000, Gazette 06-Apr-2000, [2000] 2 WLR 1173, [2000] EWCA Civ 84, [2000] 3 All ER 138, [2000] Lloyd’s Rep Med 203, [2000] IRLR 334, [2000] PIQR Q187, [2001] QB 272
Bailii
England and Wales
Citing:
Cited – Andrews v Grand and Toy Alberta Ltd 1978
(Supreme Court of Canada) The injured plaintiff sought damages for future loss of earnings and for the cost of future care.
Held: Dickson J said: ‘It is clear that a plaintiff cannot recover for the expense of providing for basic necessities . .
Cited – Wright v British Railways Board HL 1983
An award of interest at a conventional rate includes an element in respect of the ‘real’ rate of return which an investor could expect to receive on a risk-free investment and an element to allow for inflation. Lord Diplock said: ‘that element of . .
Cited – Wells v Wells; Thomas v Brighton Health Authority; etc HL 16-Jul-1998
In each of three cases, the plaintiffs had suffered serious injury. They complained that the court had made a substantial reduction of their damages award for loss of future earnings and the costs of future care.
Held: The appeals succeeded. . .
Cited – Shephard v H West and Son Ltd HL 27-May-1963
The House looked at how personal injury damages shoud be set in cases of severe injury.
Lord Pearce said: ‘[i]f a plaintiff has lost a leg, the court approaches the matter on the basis that he has suffered a serious physical deprivation no . .
Cited – John v MGN Ltd CA 12-Dec-1995
Defamation – Large Damages Awards
MGN appealed as to the level of damages awarded against it namely pounds 350,000 damages, comprising pounds 75,000 compensatory damages and pounds 275,000 exemplary damages. The newspaper contended that as a matter of principle there is no scope in . .

Cited by:
Cited – Kiam v MGN Ltd CA 28-Jan-2002
Where a court regards a jury award in a defamation case as excessive, a ‘proper’ award can be substituted for it is not whatever sum court thinks appropriate, wholly uninfluenced by jury’s view, but the highest award which a jury could reasonably . .
Cited – Rahman v Arearose Limited and Another, University College London, NHS Trust CA 15-Jun-2000
The claimant had suffered a vicious physical assault from which the claimant’s employers should have protected him, and an incompetently performed surgical operation. Three psychiatrists agreed that the aetiology of the claimant’s very severe . .
Cited – George Galloway MP v Telegraph Group Ltd QBD 2-Dec-2004
The claimant MP alleged defamation in articles by the defendant newspaper. They claimed to have found papers in Iraqi government offices after the invasion of Iraq which implicated the claimant. The claimant said the allegations were grossly . .
See Also – Heil v Rankin CA 13-Jun-2000
Where supervening events might contribute to the personal injury suffered, the proper approach in apportioning compensation in respect of one occasion was in general terms to provide just and sufficient compensation for the injury caused without . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Personal Injury, Damages

Leading Case

Updated: 01 November 2021; Ref: scu.135768

The Case of Monopolies; Darcy v Allein: 1572

Origin of Patents Rights in the Crown

Darcy challenged the grant of an exclusive right to produce cards to the defendant.
Held: The grant of exclusive rights to produce any article was improper. However, where someone creates through his own actions and bring into trade a new and previously unknown engine, it is within the power of the king to grant hima monopoly patent for a reasonable time so that he may produce the item for the general benefit.

[1572] EngR 398, (1572-1616) 11 Co Rep 84, (1572) 77 ER 1260, (1602) Noy 173, (1602) Moore KB 671, (1602) 1 Web Pat Cas 1, (1602) 74 ER 1131
Commonlii
England and Wales

Intellectual Property, Commercial, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.432364

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 regards the granting of concessions outside the immigration rules and of their subsequent withdrawal amount to statements as to ‘the practice to be followed’ within the meaning of section 3(2) of the 1971 Act which she must, therefore, lay before Parliament.
Held: The appeals failed.
The Immigration Rules are made under the 1971 Act, and not by virtue of the Royal prerogative. Section 3(2) required the Sectretary of State to ‘lay before Parliament statements of the rules, or of any changes in the rules, laid down by him as to the practice to be followed etc’, the purpose of which was to ensure a measure of control for Parliament. However, the Secretary of State retained a discretion as to the application of rules in particular circumstances. Where a policy gave only limited discretion, it risked becoming a rule, and subject directly to the Act. This policy however remained so flexible as to fall short of being a rule. It lawful

Lord Hope, Deputy President, Lord Walker, Lord Clarke, Lord Dyson, Lord Wilson
[2012] UKSC 32, UKSC 2011/0183, [2012] 1 WLR 2192, [2012] WLR(D) 213
Bailii, Bailii Summary, SC Summary, SC
Immigration Act 1971 1(4) 3(2)
England and Wales
Citing:
Cited – Director of Public Prosecutions v Bhagwan HL 1972
Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration . .
Cited – 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 – 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. . .
At first instance – 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 . .
Disapproved – Regina v Secretary of State for the Home Department, Ex parte Rajinder Kaur CA 1987
The court considered a provision requiring refusal of leave to enter if there was no entry clearance.
Held: Such a mandatory rule was intra vires, the Secretary of State retaining a discretion outside the 1971 Act. Glidewell LJ said: . .
Appeal from – 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 . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Ounejma 1989
. .

Cited by:
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 . .
Cited – Agyarko and Ikuga, Regina (on The Applications of) v Secretary of State for The Home Department SC 22-Feb-2017
Applications were made by foreign nationals, residing unlawfully in the UK, for leave to remain as the partners of British citizens with whom they had formed relationships during their unlawful residence, relying primarily on the duty imposed on the . .

Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 01 November 2021; Ref: scu.462946

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 staying.
Held: The appeals succeeded. By 1969, immigration rules had by law shed the primary characteristic of policy – flexibility – and were required to have at least tacit parliamentary approval.
The Immigration Rules appear to have a unique constitutional status. Although described as policy they were given legal effect. They could not therefore incorporate elements from a document which had not itself been laid before parliament and which might further be amended without parliamentary scrutiny.
Sedley LJ said: ‘But the operation of the rules qua rules is one thing; what they contain as a matter of law is another. In my judgment the statutory recognition of rules which are to have the character and, on appeal, the force of law requires such rules to be certain. That does not shut out extraneous forms of evidence of compliance, so long as these are themselves specified, but it does in my judgment shut out criteria affecting individuals’ status and entitlements which – coming back now to the questions in para 23 above – (a) have not themselves been tendered for parliamentary scrutiny, and (c) even if ascertainable at that point of time, may be changed without fresh scrutiny. As to (b), while the fact that the criterion absorbed into the rules comes from a policy document makes nonsense of the notion of policy, this is not critical: the vice would be the same if the reference in the rules were to a categorical criterion in some external but impermanent or undetermined source.’

Sedley LJ, Rimer LJ, Sullivan LJ
[2010] 3 WLR 1526, [2010] EWCA Civ 719, [2010] WLR (D) 158, [2011] 1 All ER 1043, [2010] Imm AR 689, [2011] QB 376, [2010] ACD 93, [2010] INLR 529
Bailii, WLRD
England and Wales
Citing:
Cited – 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. . .
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 – Regina v Secretary of State for Social Security ex parte Sutherland Admn 7-Nov-1996
The Secretary of State has no power to issue regulations which would withhold benefits pending an appeal against their refusal. Laws J said: ‘where the executive has been allowed by the legislature to make law, it must abide strictly by the terms of . .
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 – 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 – The Zamora PC 1916
Lord Parker said: ‘The idea that the King in Council, or indeed any branch of the Executive, has power to prescribe or alter the law to be administered by the Courts of law in this country is out of harmony with the principles of our Constitution. . .
Cited – 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 . .
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina v Secretary of State for Social Services, ex parte Camden London Borough Council CA 1987
A directory referred to in a statutory instrument setting a level of benefits had not itself been passed by Parliament.
Held: There was no legal flaw in a statutory instrument which fixed the amount of benefits by reference to a directory . .
Cited – Regina v Home Secretary, ex parte Hosenball CA 1977
A United States’ citizen was subject to a deportation decision which was held not amenable to judicial review on the ground of national security. He appealed.
Held: Neither a failure to lay rules before Parliament within the allotted time, nor . .

Cited by:
Cited – Ngouh, Regina (on The Application of) v Secretary of State for The Home Department Admn 27-Aug-2010
The claimant, a Cameroon national, sought to challenge the refusal of indefinite leave to remain. He had served in the British Army in Iraq, and lived here for over ten years. However when serving he had been convicted of a minor sexual assault in . .
Explained – English UK Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 9-Jul-2010
Foskett J interpreted Pankina: ‘The Court of Appeal held that the revised criterion could not be put in place by virtue of a process of issuing guidance. The ratio of the decision appears to me to be that a provision that reflects a substantive . .
Cited – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 7-Apr-2011
The respondent had suspended and revoked the licence of the claimant company to enrol non-EEA students on its courses. . .
Cited – Joint Council for The Welfare of Immigrants, Regina (on The Application of) v Secretary of State for The Home Department Admn 17-Dec-2010
The claimants challenged the imposition by the defendant of interim limits on (1) the number of applicants for entry clearance who may be issued with visas under Tier 1 (General) of the Points based system (PBS); and (2) the number of certificates . .
Distinguished – 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. . .
Confirmed – 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 – Alvi, Regina (on The Application of) v Secretary of State for The Home Department CA 9-Jun-2011
The claimant appealed against the refusal of the Secretary of State to grant him leave to remain to a non-EEA economic migrant. The claimant had entered as a student and stayed working as a physiotherapy assistant. He said that on the change of . .
Cited – FA and AA (PBS Effect of Pankina) Nigeria UTIAC 25-Aug-2010
UTIAC The effect of the decision of the Court of Appeal in Pankina is not limited to the ‘three-month rule’ in relation to evidence of funds. Policy Guidance does not have the status of Immigration Rules for the . .
Cited – MM and SA (Pankina:Near Miss) Pakistan UTIAC 26-Jan-2011
UTIAC Judicial decision-makers should be careful to identify and reject arguments based on an alleged near-miss, which, on proper analysis, are an attempt to import extraneous qualifications into the immigration . .
Cited – Aleem (Pankina-Uplift for Overseas Earnings) Sri Lanka UTIAC 28-Mar-2011
UTIAC The requirement by the respondent that an applicant for leave to remain as a Tier 1 (General) Migrant, whose last leave was as a Tier 4 (General) Student), must have physically undertaken work in an . .
Explained – Ahmed, Regina (on The Application of) v Secretary of State for The Home Department Admn 2-Nov-2011
The governing principle laid down by Pankina as understood and applied in subsequent cases was that a substantive or material change to the content of the Immigration Rules must be made by way of amending rules which must be laid before Parliament, . .
Cited – New London College Ltd, Regina (on the application of) v Secretary of State for the Home Department CA 2-Feb-2012
The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority . .
Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Immigration, Human Rights

Updated: 01 November 2021; Ref: scu.417713

ANS and Another v ML: SC 11 Jul 2012

The mother opposed adoption proceedings, and argued that the provision in the 2007 Act, allowing a court to dispense with her consent, infringed her rights under Article 8 and was therefore made outwith the powers of the Scottish Parliament.
Held: The mother’s appeal failed. Section 3 of the 1998 Act imposes a special interpretive duty only if legislation, construed normally, would lead to a breach of the Convention. Where the ordinary meaning of the provision is incompatible with the Convention, the court must ask whether the incompatibility can be cured by interpreting it as required by section 3. If that does not succeed then it will not either be within the competence of the Scottish Parliament.
The scheme of the 2007 Act begins with an assumption of the need for parental consent. The limitations on exceptions are in fact more tightly specified than under the English equivalent, and derive from respect of the obligation to treat as paramount the welfare of the child. Decisions made applying the Act interppreted normally would not be incompatible. They have a legitimate purpose in protecting children, and are necessary and proportionate.
Nor was the provision expressed so widely as to make any decision otherwise that ‘in accordance with law’. Much discretion had to be left to the sherriff to reflect the very wide range of circumstances he might face.
Lord Reid said: ‘legislation authorizing the severing of family ties between parents and their children will not readily be construed as setting anything less than a test of necessity. Section 31(3)(d), in stipulating that the welfare of the child must ‘require’ that parental consent be dispensed with, is consistent with such a test. There must, in other words, be an overriding requirement that the adoption proceed for the sake of the child’s welfare, which remains the paramount consideration. The court must be satisfied that the interference with the rights of the parents is proportionate: in other words, that nothing less than adoption will suffice. If the child’s welfare can be equally well secured by a less drastic intervention, then it cannot be said that the child’s welfare ‘requires’ that consent to adoption should be dispensed with.’

Lord Hope, Deputy President, Lady Hale, Lord Wilson, Lord Reed, Lord Carnwath
[2012] UKSC 30, UKSC 2012/0105
Bailii, Bailii Summary, SC Summary, SC
Adoption and Children (Scotland) Act 2007 31(3)(d), Human Rights Act 1998 3, Scotland Act 1998 29(2)(d)
England and Wales
Citing:
Cited – Regina (Wardle) v Leeds Crown Court HL 24-May-2001
The defendant had been held in custody awaiting committal on a murder charge. An additional charge of manslaughter was added. The defendant argued that this did not constitute a new offence so as to allow an extension of custody time limits.
Cited – Regina v Secretary of State for The Home Department Ex Parte Simms HL 8-Jul-1999
Ban on Prisoners talking to Journalists unlawful
The two prisoners, serving life sentences for murder, had had their appeals rejected. They continued to protest innocence, and sought to bring their campaigns to public attention through the press, having oral interviews with journalists without . .
Cited – NJDB v JEG and Another SC 23-May-2012
Mother and father disputed whether the father should be allowed contact with their child S. Court orders had been made for residential and non-residential contact, but there were difficulties and the order for contact was reversed on the basis that . .
Cited – Pontes v Portugal ECHR 10-Apr-2012
‘The Court repeats forcefully, in such cases, the interests of the child must come before any other consideration.’ . .
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 . .
Cited – Johansen v Norway ECHR 7-Aug-1996
The court had to consider a permanent placement of a child with a view to adoption in oposition to the natural parents’ wishes.
Held: Particular weight should be attached to the best interests of the child, which may override those of 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 . .
Appeal from – ANS and Another v ML SCS 21-Jun-2011
In adoption proceedings, ML refused her consent to the proposed adoption. She argued that the provision in the 1997 Act (allowing a court to dispense with her consent) was beynd the competence of the Scottish Parliament, and infringed her right to . .
Cited – R And H v The United Kingdom ECHR 31-May-2011
The court considered arrangements for an adoption in Northern Ireland where the parent’s consent was withheld.
Held: For parental consent to be overriden there had to be shown an overriding need for the decision. . .
Cited – Principal Reporter v K SC 15-Dec-2010
The court was asked as to the right of an unmarried father to take part in Children’s hearings under the 1995 Act, and depending on the answer whether the scheme was human rights compliant. K was father of the child, but the mother was unmarried. He . .
Cited – DS v Her Majesty’s Advocate PC 22-May-2007
An amendment to the 1995 Act placed restrictions on the questioning of the complainer in trials of persons charged with sexual offences. The defendant appealed, saying that the restrictions were incompatible with the right to a fair trial under . .
Cited – Neulinger And Shuruk v Switzerland ECHR 6-Jul-2010
(Grand Chamber) The Swiss Court had rejected the claimant mother’s claim, under article 13b of the Hague Convention, that there was a grave risk that returning the child to Israel would lead to physical or psychological harm or otherwise place him . .
Cited – In re S-B (Children) (Care proceedings: Standard of proof) SC 14-Dec-2009
A child was found to have bruising consistent with physical abuse. Either or both parents might have caused it, but the judge felt it likely that only one had, that he was unable to decide which, and that they were not so serious that he had to say . .
Cited – YC v The United Kingdom ECHR 13-Mar-2012
The court collated a number of different ways in which, in its previous judgments, it had sought to explain the requirements of necessity and proportionality in relation to adoption orders made against the wishes of the parents: ‘The Court . .
Cited – Sahin v Germany ECHR 11-Oct-2001
When considering the issues of an adoption against the wishes of the parents, there is an apparent difference of emphasis between saying that the child’s interests are of ‘paramount importance’, and saying that they merely ‘may, depending on their . .
Cited – Kuijper v Netherlands ECHR 3-Mar-2005
The court considered provisions allowing the adoption of a child against the wishes of the parents. The parents complained that the procedure was not in accordance with law because it lacked legal certainty.
Held: The claim failed. A measure . .

Lists of cited by and citing cases may be incomplete.

Scotland, Human Rights, Constitutional, Adoption

Updated: 01 November 2021; Ref: scu.462501

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 Controller to levy any sum of money on any of his Majesty’s subjects. Drastic powers were given to him in regard to the regulation and control of the food supply, but they did not include the power to levy money, which he must receive as part of the national fund. However the character of the transaction might be defined, in the end it remained that people were called upon to pay money to the Controller for the exercise of certain privileges. That imposition could only be properly described as a tax, which could not be levied except by direct statutory means.’

Lord Buckmaster
(1922) 38 TLR 781
Bill of Rights 1688 4
England and Wales
Citing:
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 . .
Appeal from – 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 by:
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.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.248340

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 subsequently discovered to have been repealed, Lord Halsbury suggested that it would not be a binding authority because it was founded on a mistake of fact.
‘a decision of this House once given upon a point of law is conclusive upon this House afterwards, and that it is impossible to raise that question again as if it was res integra and could be reargued, and so the House be asked to reverse its own decision. That is a principle which has been, I believe, without any real decision to the contrary, established now for some centuries, and I am therefore of opinion that in this case it is not competent for us to rehear and for counsel to reargue a question which has been recently decided.’

Lord Halsbury
[1898] AC 375, [1898] UKHL 1
Bailii
England and Wales
Cited by:
Overruled – 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 . .
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 – 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 – 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.

Transport, Litigation Practice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.190007

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 grounds that the Lord Chancellor was disqualified.
Held: After consultation, Lord Cottenham was disqualified from sitting as a judge in the cause because he had an interest in the suit. There was no inquiry by the court as to whether a reasonable man would consider Lord Cottenham to be biased and no inquiry as to the circumstances which led to Lord Cottenham sitting.
Lord Campbell said: ‘No one can suppose that Lord Cottenham could be, in the remotest degree, influenced by the interest he had in this concern; but, my Lords, it is of the last importance that the maxim that no man is to be a judge in his own cause should be held sacred. And that is not to be confined to a cause in which he is a party, but applies to a cause in which he has an interest. Since I have had the honour to be Chief Justice of the Court of Queen’s Bench, we have again and again set aside proceedings in inferior tribunals because an individual, who had an interest in a cause, took a part in the decision. And it will have a most salutary influence on these tribunals when it is known that this high Court of last resort, in a case in which the Lord Chancellor of England had an interest, considered that his decree was on that account a decree not according to law, and was set aside. This will be a lesson to all inferior tribunals to take care not only that in their decrees they are not influenced by their personal interest, but to avoid the appearance of labouring under such an influence.’

Lord Brougham, Lord Campbell
(1852) 3 HL Cas 759, [1852] EngR 789, (1852) 3 HLC 759, (1852) 10 ER 301
Commonlii
England and Wales
Citing:
See Also – 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 . .
See Also – 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 . .
Appeal from – 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 . .

Cited by:
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 – Locabail (UK) Ltd, Regina v Bayfield Properties Ltd CA 17-Nov-1999
Adverse Comments by Judge Need not be Show of Bias
In five cases, leave to appeal was sought on the basis that a party had been refused disqualification of judges on grounds of bias. The court considered the circumstances under which a fear of bias in a court may prove to be well founded: ‘The mere . .
Cited – 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 – 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 . .
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 . .
Principal Judgment – 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 . .
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 . .
Cited – P v The General Council of the Bar; Re P (A Barrister) 24-Jan-2005
(Visitors to the Inns of Court) A Disciplinary Tribunal was convened by the President of COIC pursuant to the 2000 Regulations. It found the barrister guilty of misconduct and suspended her from practice for three months. The Visitors appointed to . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Natural Justice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.183299

Bade v The Queen: PC 8 Jun 2016

(Solomon Islands) The appellant had been convicted of murder. He now said that the automatic life sentence, and the use of a recommended rather than determined minimum sentence was unconstitutional.
Held: The Board first had to determine whether it retained a jurisdiction to hear such appeals from the Solomon Islands.
Held: ‘ there has been no express abrogation of the right to petition the Privy Council for special leave under the 1833 and 1844 Acts. But it considers that the clear implication or necessary intendment of the new Constitution and other legislation by which Solomon Islands achieved their independence was to remove all right of appeal to the Privy Council, whether as of right, by leave of the Court of Appeal or by special leave of the Privy Council. The Board adds that it is no doubt possible for a country to preserve a right to petition for special leave, while removing all other possibilities of appeal to the Privy Council, and also to restrict any such right to petition to a particular area, such as criminal law, but it would seem on its face unlikely that a state achieving independence would so determine. However that may be, the Board sees no indication that that was what was intended here. On the contrary, the Board concludes with confidence that the intention must have been that there should be no further appeals whatever, other than in respect of matters for which leave had already been given prior to independence.’

Lord Mance, Lord Wilson, Lord Hodge
[2016] UKPC 14
Bailii
Judicial Committee Act 1833, Judicial Committee Act 1844, The Solomon Islands Courts Order 1975, The Solomon Islands Independence Order 1978
Commonwealth

Criminal Sentencing, Constitutional

Updated: 01 November 2021; Ref: scu.565339

Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited: HL 7 Dec 2000

The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit the maximum amount of rent in the proper exercise of that discretionary power. The Act as a whole was intended to strengthen the rights of tenants, and to protect tenants against various forms of potential disadvantage or exploitation.
In interpreting statutes, it is important for the conditions in Pepper v Hart to be strictly followed. It was not legitimate to have regard to a ministerial statement to elucidate not the meaning of a provision but the scope of a statutory power. Nevertheless there was nothing in that case to restrict the nature of the ambiguity or obscurity which might allow reference to parliamentary materials to support interpretation.
Lord Nicholls said: ‘Statutory interpretation is an exercise which requires the court to identify the meaning borne by the words in question in the particular context. The task of the court is often said to be to ascertain the intention of Parliament expressed in the language under consideration. This is correct and may be helpful so long as it is remembered that the ‘intention of Parliament’ is an objective concept, not subjective. The phrase is a shorthand reference to the intention which the court reasonably imputes to Parliament in respect of the language used. It is not the subjective intention of the minister or other persons who promoted the legislation. Nor is the subjective intention of the draftsman, or of individual members or even a majority of individual members of either House. These individuals will often have widely varying intentions. Their understanding of the legislation and of the words used may be impressively complete or woefully inadequate. Thus, when the courts say that such-and-such a meaning ‘cannot be what Parliament intended’, they are saying only that the words under consideration cannot reasonably be taken as used by Parliament with that meaning.’
. . And: ‘This constitutional consideration does not mean that when deciding whether statutory language is clear and unambiguous and not productive of absurdity, the courts are confined to looking solely at the language in question in its context within the statute. That would impose on the courts much too restrictive an approach. No legislation is enacted in a vacuum. Regard may also be had to extraneous material, such as the setting in which the legislation was enacted. This is a matter of everyday occurrence.
That said, courts should nevertheless approach the use of external aids with circumspection. Judges frequently turn to external aids for confirmation of views reached without their assistance. That is unobjectionable. But the constitutional implications point to a need for courts to be slow to permit external aids to displace meanings which are otherwise clear and unambiguous and not productive of absurdity. Sometimes external aids may properly operate in this way. In other cases, the requirements of legal certainty might be undermined to an unacceptable extent if the court were to adopt, as the intention to be imputed to Parliament in using the words in question, the meaning suggested by an external aid. Thus, when interpreting statutory language courts have to strike a balance between conflicting considerations.’
Lord Bingham of Cornhill said: ‘Unless the first of the conditions is strictly insisted upon, the real risk exists, feared by Lord Mackay, that the legal advisers to parties engaged in disputes on statutory construction will be required to comb through Hansard in practically every case (see pp. 614G, 616A). This would clearly defeat the intention of Lord Bridge of Harwich that such cases should be rare (p. 617A), and the submission of counsel that such cases should be exceptional’
Lord Bingham of Cornhill said that a court ‘should not routinely investigate the statutory predecessors of provisions in a consolidation statute’

Lord Nicholls of Birkenhead
Times 13-Dec-2000, [2000] UKHL 61, [2001] 2 AC 349, [2001] 1 All ER 195, [2001] 2 WLR 15, (2001) 33 HLR 31, [2000] NPC 139, [2000] EGCS 152, [2000] EG 152, [2001] 1 EGLR 129
Gazette, House of Lords, Bailii
Landlord and Tenant Act 1985 31, Rent Acts (Maximum Fair Rent) Order 1999
England and Wales
Citing:
Appeal from – Regina, Ex Parte Spath Holme Ltd v Secretary of State for the Environment Transport and The Regions, Secretary of State For Wales CA 20-Jan-2000
Regulations made to ease the effect of changes on the calculation of registered rents were ultra vires and void. The Act under which they were made was intended to control inflation. The purpose of these Regulations was to ease the effect on . .
Constrained – 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 . .
Approved – McKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
Cited – Heydon’s Case 1584
Mischief rule of Iinterpretation
Lord Coke stated the basis of the mischief rule of interpretation: ‘For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and . .
Cited – Westminster Bank Limited v The Minister for Housing and Local Government, Beverley Borough Council HL 1971
The Bank’s application for planning permission was refused on the grounds that the development might prejudice the possible future widening of a road. The local authority could have prescribed a building line in accordance with a provision of the . .
Cited – Regina v Schildkamp HL 1971
The defendant was accused of defrauding the company’s creditors.
Held: Not guilty. When interpreting a statute, the words of a heading cannot have equal weight with the words of the Act. The courts sometimes have to fill lacunae in . .
Cited – Maunsell v Olins HL 1975
The House considered whether a sub-tenant could claim protection under the 1968 Act. This depended on the interpretation of the word ‘premises’ in the context of a sub-tenancy of a cottage on a farm let under an agricultural tenancy.
Held: . .
Cited – Farrell v Alexander HL 24-Jun-1976
The House considered the construction of a consolidation Act.
Held: It is ordinarily both unnecessary and undesirable to construe a consolidation Act by reference to statutory antecedents, but it is permissible to do so in a case where the . .
Cited – Johnson v Moreton HL 1980
The tenant had, in the tenancy agreement itself, purported to contract ‘not in any event to serve a counter-notice under Section 24(1)’ of the 1948 Act.
Held: A head tenant under an agricultural tenancy has the right to challenge any notice to . .

Cited by:
Appealed to – Regina, Ex Parte Spath Holme Ltd v Secretary of State for the Environment Transport and The Regions, Secretary of State For Wales CA 20-Jan-2000
Regulations made to ease the effect of changes on the calculation of registered rents were ultra vires and void. The Act under which they were made was intended to control inflation. The purpose of these Regulations was to ease the effect on . .
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 – Amiri Flight Authority v BAE Systems Plc CA 17-Oct-2003
The appellant had contracted to purchase maintenance from the defendant of aircraft it had also purchased from them. They sought damages for negligence, saying the defendants had failed to prevent a known risk of corrosion. The defendants argued . .
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
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 – 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 – Haw, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 8-May-2006
The applicant had demonstrated continuously against the war in Iraq from the pavement outside the House of Commons. The respondent sought an order for his removal under the law preventing demonstrations near Parliament without consent which was . .
Cited – Wright and Others, Regina (on the Application of) v Secretary of State for Health Secretary of State for Education and Skills Admn 16-Nov-2006
The various applicants sought judicial review of the operation of the Protection of Vulnerable Adults List insofar as they had been placed provisionally on the list, preventing them from finding work. One complaint was that the list had operated . .
Cited – Hanoman v London Borough of Southwark CA 12-Jun-2008
The claimant had exercised the right to buy his flat from the defendant. After the lease had been executed he sought to assert that the price should have been further reduced to allow for rent disregarded by the defendant because it been covered by . .
Cited – Joyce v Secretary of State for Health Admn 1-Aug-2008
The claimant appealed against a decision of the Care Standards Tribunal regarding misconduct, and being placed on the list to prevent her working with vulnerable adults. She was said to have fallen asleep while on night duty. The court considered . .
Cited – British Broadcasting Corporation v Sugar and Another Admn 2-Oct-2009
Disclosure was sought of a report prepared by the BBC to assess the balance of its coverage of middle east affairs. The BBC said that the information was not held for purposes other than those of journalism, art or literature. One issue was whether . .
Cited – Sugar v British Broadcasting Corporation and Another (2) SC 15-Feb-2012
The claimant sought release of a report prepared by the respondent as to its coverage of the Arab/Israel conflict partly for journalistic purposes, and partly for compliance.
Held: The appeal failed. Where the report was prepared even if only . .
Cited – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Whitston (Asbestos Victims Support Groups Forum UK), Regina (on The Application of) v Secretary of State for Justice Admn 2-Oct-2014
The claimants challenged the selection by the defendant of victims of meselothemia as a group were excluded from entitlement to the recovery of success fees and insurance premiums paid by successful claimants from unsuccessful defendants.
Cited – The Manchester Ship Canal Company Ltd and Another v United Utilities Water Plc SC 2-Jul-2014
The court was asked: ‘whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents’ canals without the consent of their . .
Cited – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Cited – Forge Care Homes Ltd and Others, Regina (on The Application of) v Cardiff and Vale University Health Board and Others SC 2-Aug-2017
The court was asked who is legally responsible for paying for the work done by registered nurses in social rather than health care settings. Is the National Health Service responsible for all the work they do or are the social care funders . .

Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Housing, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.88618

Marleasing SA v La Comercial Internacional de Alimentacion SA: ECJ 13 Nov 1990

Sympathetic construction of national legislation

LMA OVIEDO sought a declaration that the contracts setting up Commercial International were void (a nullity) since they had been drawn up in order to defraud creditors. Commercial International relied on an EC Directive designed to protect companies and third parties from the adverse effects of the doctrine of nullity. The Directive should have been implemented in 1986 but the Spanish authorities had failed to implement the Directive. The Spanish judge sought a ruling under Art.177[Art.234] EC as to whether the (non-implemented) Directive was directly effective.
Held: ECJ ruled (ruling is usually applied in the case of unimplemented directives in preference to Von Colson).

Upholding Marshall decision that a Directive cannot impose obligations on private parties (no HDE).

Re-affirmed the position in Van Colson and Harz ‘that national courts must as far as possible interpret national law in the light of the wording and purpose of the Directive in order to achieve the result pursued by the Directive’ whilst ‘having regard to the usual methods of interpretation in its legal system, give precedence to the method which enables it to construe the national provision concerned in a manner consistent with the directive.’

Adding, that this obligation applied, whether the national provisions in question were adopted before or after the Directive was issued.

National courts are ‘required’ to interpret domestic law in such a way as to ensure that the objectives of the Directive were achieved.
Europa The Member States’ obligation arising from a directive to achieve the result envisaged by the directive and their duty under Article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of Member States including, for matters within their jurisdiction, the courts. It follows that, in applying national law, whether the provisions in question were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and the purpose of the directive in order to achieve the result pursued by it and thereby comply with the third paragraph of Article 189 of the Treaty,
A national court hearing a case which falls within the scope of Directive 68/151 on the coordination of safeguards which, for the protection of the interests of members and others, are required by Member States of companies within the meaning of the second paragraph of Article 58 of the Treaty, with a view to making such safeguards equivalent throughout the Community, is required to interpret its national law in the light of the purpose and the wording of that directive in order to preclude a declaration of nullity of a public limited company on a ground other than those listed in Article 11 of the directive. Those grounds must themselves be strictly interpreted, in the light of that purpose, so as to ensure that nullity on the ground that the objects of the company are unlawful or contrary to public policy must be understood as referring exclusively to the objects of the company as described in the instrument of incorporation or the articles of association.
‘in applying national law, whether the provisions in questions were adopted before or after the directive, the national court called upon to interpret it is required to do so, as far as possible, in the light of the wording and purpose of the directive in order to achieve the result pursued by the latter . . ‘

(1992) 1 CMLR 305, C-106/89, [1990] ECR I-4135, [1990] EUECJ C-106/89, [1990] 1 ECR 3313
Bailii
EEC Treaty 5 189, Council Directive 68/151 A-11
European
Cited by:
Cited – Regina v Johnstone HL 22-May-2003
The defendant was convicted under the 1994 Act of producing counterfeit CDs. He argued that the affixing of the name of the artist to the CD was not a trade mark use, and that the prosecution had first to establish a civil offence before his act . .
Cited – Inter Lotto (Uk) Ltd v Camelot Group Plc CA 30-Jul-2003
The claimant and defendant had each operated using a the name ‘HotSpot’ for a name for its lottery. The respondent had registered the name as a trade mark. The claimant began to use the name first and claimed in passing off, and the respondent . .
Cited – Jones, Regina (on the Application of) v Mansfield District Council and Another CA 16-Oct-2003
Plannning permission was sought. Objectors said that it would have such an impact that an environmental impact assessment was required. They now sought judicial review of the decision to proceed without one.
Held: The judge had explained the . .
Cited – Clarke v Kato and Others; Cutter v Eagle Star Insurance Co Ltd HL 25-Nov-1998
Save exceptionally, a car park is not a road for the purposes of road traffic legislation on obligatory insurance. It is an unjustified strain on the language. A distinction made between the road ways and the parking bays was artificial and . .
Cited – Regina (Amicus etc) v Secretary of State for Trade and Industry Admn 26-Apr-2004
The claimants sought a declaration that part of the Regulations were invalid, and an infringement of their human rights. The Regulations sought to exempt church schools from an obligation not to discriminate against homosexual teachers.
Held: . .
Cited – 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 – Derbyshire Waste Ltd v Blewett and Another CA 11-Nov-2004
Glapswell Colliery had closed. The owners sought to use it for waste disposal by landfill. The objector had obtained judicial review of the permission granted.
Held: The intention of the Landfill Directive was to discourage its use other than . .
Cited – British Airways Plc v Ryanair Limited ChD 25-Oct-2000
The claimant alleged that disparaging adverts by the defendant infringed its trade marks and amounted to the tort of malicious falsehood.
Held: There was no dispute that the mark had been used. The Act could not be used to prevent any use of . .
Cited – Bowman v Fels (Bar Council and Others intervening) CA 8-Mar-2005
The parties had lived together in a house owned in the defendant’s name and in which she claimed an interest. The claimant’s solicitors notified NCIS that they thought the defendant had acted illegally in setting off against his VAT liability the . .
Cited – Percy v Church of Scotland Board of National Mission HL 15-Dec-2005
The claimant appealed after her claim for sex discrimination had failed. She had been dismissed from her position an associate minister of the church. The court had found that it had no jurisdiction, saying that her appointment was not an . .
Cited – Webb v EMO Air Cargo (UK) Ltd (No 1) HL 3-Mar-1993
Questions on pregnancy dismissals included unavailability at required time. The correct comparison under the Act of 1975 was between the pregnant woman and: ‘a hypothetical man who would also be unavailable at the critical time. The relevant . .
Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Cited – Revenue and Customs v IDT Card Services Ireland Ltd CA 27-Jan-2006
Under the Marleasing principle, or principle of conforming interpretation, the domestic court of a member state must interpret its national law so far as possible in the light of the wording and purpose of the Directive in question. However this . .
Cited – Vibixa Ltd, Polestar Jowetts Ltd v Komori UK Ltd and Another, Spectral Technology Ltd CA 9-May-2006
The claimants sought damages for damage to property alleging breach of statutory duty. The defendant said that the regulations were made under European not English law, and that the Secretary of State did not have power to make regulations under the . .
Cited – It’s A Wrap (UK) Ltd v Gula and Another CA 11-May-2006
The company was said to have paid dividends unlawfully, in that the directors who were the shareholders had paid themselves dividends knowing that the company had not earned enough to pay them.
Held: Where shareholders had knowledge of the . .
Cited – Nova Productions Ltd v Mazooma Games Ltd and others CA 14-Mar-2007
The defendant appealed against a finding of copyright infringement in a computer game.
Held: The appeal failed. The court must identify the artistic work relied upon and then decide whether it has been reproduced by copying of the work as a . .
Cited – Murphy v Media Protection Services Ltd Admn 21-Dec-2007
The prosecutor appealed dismissal of a charge of receiving a broadcast television programme with intent to avoid payment. The defendant ran a public house. She acquired a card which allowed her to receive transmissions from a Greek satellite . .
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 . .
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 – British Airways Plc v Williams and Others SC 24-Mar-2010
The court was asked as to the calculation of annual leave pay for crew members in civil aviation under the Regulations. The company argued that it was based on the fixed annual remuneration, and the pilots argued that it should include other . .
Cited – Churchill Insurance Company Ltd v Wilkinson and Others CA 19-May-2010
The various insured defendants had been driven in the insured vehicles by a non-insured driver. Suffering injury at the negligence of the driver, they recovered variously damages. Their insurance companies sought recovery of the sums paid from their . .
Cited – O’Brien v Ministry of Justice SC 28-Jul-2010
The appellant had worked as a part time judge. He now said that he should be entitled to a judicial pension on retirement by means of the Framework Directive. The Regulations disapplied the provisions protecting part time workers for judicial office . .
Cited – Bloomsbury International Ltd v Sea Fish Industry Authority and Department for Environment, Food and Rural Affairs SC 15-Jun-2011
The 1995 Regulations imposed a levy on fish both caught and first landed in the UK and also on imported fish products. The claimants, importers challenged the validity of the latter charges, saying that they went beyond the power given by the 1981 . .
Cited – Twentieth Century Fox Film Corp and Others v British Telecommunications Plc ChD 28-Jul-2011
The claimant rights holders sought an order to require the defendant broadband internet provider to deny access to its users to websites which were said to facilitate the distribution of infringing copies of their films. An earlier judgment had . .
Cited – Jivraj v Hashwani SC 27-Jul-2011
The parties had a joint venture agreement which provided that any dispute was to be referred to an arbitrator from the Ismaili community. The claimant said that this method of appointment became void as a discriminatory provision under the 2003 . .
Cited – Houldsworth and Another v Bridge Trustees Ltd and Another SC 27-Jul-2011
The court was asked as to the dividing line, for regulatory purposes, between defined benefit (normally earnings-related) schemes and defined contribution (or money purchase) schemes. The Secretary of State asserted that some methods used to . .
Cited – Rossetti Marketing Ltd v Diamond Sofa Company Ltd and Another QBD 3-Oct-2011
Rossetti_diamondQBD2011
The claimants sought compensation under the 1993 Rules. The defendants denied that the claimants were agents within the rules, since they also acted as agents for other furniture makers.
Held: Whether a party is a commercial agent within the . .
Cited – Forensic Telecommunications Services Ltd v West Yorkshire Police and Another ChD 9-Nov-2011
The claimant alleged infringement by the defendant of assorted intellectual property rights in its database. It provided systems for recovering materials deleted from Nokia mobile phones.
Held: ‘the present case is concerned with a collection . .
Cited – Russell and Others v Transocean International Resources Ltd and Others SC 7-Dec-2011
russell_transocean
The appellants worked on various shifts for the defendants in off-shore oil-fields. They were given on-shore rest breaks, which the employers said should count toward their holiday entitlements.
Held: The Court dismissed the employees’ appeal . .
Cited – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Cited – X v Mid Sussex Citizens Advice Bureau and Another SC 12-Dec-2012
The appellant was disabled, had legal qualifications, and worked with the respondent as a volunteer. She had sought assistance under the Disability Discrimination Act, now the 2012 Act, saying that she counted as a worker. The tribunal and CA had . .
Cited – The Newspaper Licensing Agency Ltd and Others v Meltwater Holding Bv and Others ChD 26-Nov-2010
The claimant newspapers complained of the spidering of the web-sites and redistribution of the materials collected by the defendants to its subscribers. The defendants including the Public Relations Consultants Association (PRCA) denied that they . .
Cited – Digital Satellite Warranty Cover Ltd and Another v Financial Services Authority SC 13-Feb-2013
The appellants challenged an order for the dissolution of their company under the 2000 Acts. They had provided warranties for assorted consumer electrical goods which amounted to insurance, but said that they were not required to be registered under . .
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 – NATS (Services) Ltd v Gatwick Airport Ltd and Another TCC 2-Oct-2014
NATS had tendered unsuccessfully for a contract to provide air traffic control services at Gatrwick airport, and challenged the award. GAL denied that the Regulations applied and now sought disapplication of the automatic suspension from the award . .
Cited – 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 – 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 – Moreno v The Motor Insurers’ Bureau SC 3-Aug-2016
The claimant had been severely injured when hit by a car in Greece. The car’s driver was uninsured. The Court was now asked whether the scope of her claim to damages was to be determined in accordance with English or Greek law. The implementation of . .
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 . .
Cited – Z and Another, Regina (on The Application of) v Hackney London Borough Council and Another SC 16-Oct-2020
Housing Orthodox Jewish Only not Discriminatory
Hackney had statutory housing functions as to allocating social housing. It also nominated applicants to properties owned by housing associations, including AIHA, which only accepted for such nominations households belonging to the Orthodox Jewish . .

Lists of cited by and citing cases may be incomplete.

Company, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.160251

Virgin Atlantic Airways Ltd v Jet Airways (India) Ltd and Others: CA 20 Dec 2013

Allegation of infringement of patent for airline seats. The claimant sought to challenge the grant of a European Patent.
Held: Virgin’s appeal was dismissed. England had surrendered jurisdiction to review or investigate the decision of European Patent Office (EPO) to register a patent

Patten, Black, Kitchin LJJ
[2013] EWCA Civ 1713, [2013] WLR (D) 511, [2014] Bus LR 491, [2014] RPC 18
Bailii, WLRD
Patents Act 1977 77
England and Wales

Intellectual Property, European, Constitutional, Human Rights

Updated: 01 November 2021; Ref: scu.519325

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 outside the powers spelled out.
Held: When the Act had been drafted it was not expected that its implementation would be without difficulty. There was no explicit provision for this situation. The six week limit allowed for intervention by the Secretary of State, and the wording presumed that an election might still take place. The election was valid.
Lord Bingham said: ‘It would no doubt be possible, in theory at least, to devise a constitution in which all political contingencies would be the subject of predetermined mechanistic rules to be applied as and when the particular contingency arose. But such an approach would not be consistent with ordinary constitutional practice in Britain. There are of course certain fixed rules, such as those governing the maximum duration of parliaments or the period for which the House of Lords may delay the passage of legislation. But matters of potentially great importance are left to the judgment either of political leaders (whether and when to seek a dissolution, for instance) or, even if to a diminished extent, of the Crown (whether to grant a dissolution). Where constitutional arrangements retain scope for the exercise of political judgement they permit a flexible response to differing and unpredictable events in a way which the application of strict rules would preclude’.

Lord Bingham of Cornhill Lord Hoffmann Lord Hutton Lord Hobhouse of Wood-borough Lord Millett
[2002] UKHL 32, [2002] NI 390
House of Lords, Bailii
Northern Ireland Act 1998 31 32
Northern Ireland
Citing:
See Also – Robinson v Chief Constable of the Police Service of Northern Ireland CANI 28-Nov-2003
. .
Unwise – 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 by:
Cited – Westminster City Council v National Asylum Support Service HL 17-Oct-2002
The applicant sought assistance from the local authority. He suffered from spinal myeloma, was destitute and an asylum seeker.
Held: Although the Act had withdrawn the obligation to provide assistance for many asylum seekers, those who were . .
See Also – Robinson v Chief Constable of the Police Service of Northern Ireland CANI 28-Nov-2003
. .
See Also – Robinson v Chief Constable of the Police Service of Northern Ireland CANI 25-Nov-2003
. .
See Also – Robinson v Chief Constable of the Police Service of Northern Ireland CANI 28-Nov-2003
. .
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
Cited – McCord, Re Judicial Review QBNI 28-Oct-2016
The claimant made application for judicial review of the stated intention of the Government of the UK to issue an article 50 notice to leave the EU, by means of the use of the royal Prerogative. They said that any use of the royal prerogative had . .
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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.174396

Regina v Budimir and Another: CACD 29 Jun 2010

The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had had to be repealed and re-enacted in the 2010 Act.
Held: Leave was refused. The exact circumstances were unique, but ‘the House of Lords and the Court of Appeal had consistently held that, in analogous circumstances, where a conviction was based on the law as it was then understood to be, a subsequent change of the law or in the understanding of the law would not be a valid ground for leave to appeal out of time, unless substantial injustice had been done.’ There had been no injustice in these convictions.
‘failure to notify did not have the effect of rendering the national measure a nullity, void or non-existent. As to the consequences of non-notification in national law the most fundamental point was that no court had the power to strike down an Act of Parliament or to declare it a nullity. In any event what would otherwise appear to be a remarkable consequence was not required by EU law. As a matter of national law, therefore, these convictions were valid unless and until they were set aside.’

Lord Judge CJ, David Clarke, Lloyd Jones JJ
[2010] EWCA Crim 1486, [2010] WLR (D) 166, [2010] EWHC 1604 (Admin)
Bailii, WLRD
Council Directive 83/189/EEC of 28 March 1983, Video Recordings Act 1984, European Communities Act 1972, Video Recordings Act 2010
England and Wales
Citing:
See Also – Interfact Ltd v Liverpool City Council Admn 29-Jun-2010
The claimant had been convicted in 2005 of an offence under the 1984 Act. It later became clear that the Act failed properly to implement a European Directive and was unenforceable. The company now sought leave to appeal out of time. The case was . .
Cited – Interfact Ltd and Another v Liverpool City Council Admn 23-May-2005
The defendants, operators of licensed sex shops, appealed convictions for offences under the Act. The shops had supplied videos rated R*18 by mail order from the shops. The Trading Standards Officer said this did not satisfy the requirement that . .
Cited – CIA Security International v Signalson and Securitel ECJ 30-Apr-1996
1. Under the procedure provided for by Article 177 of the Treaty, it is for the national court to assess the scope of national provisions and the manner in which they are to be applied. Since the national court is best placed to assess, in view of . .
Cited – Criminal Proceedings Against Johannes Martinus Lemmens ECJ 16-Jun-1998
Evidence called by prosecutor of breathalyser machine was admissible even though the regulations for the type of machine used had not been notified for this purpose as required to the European Commission. The failure created no obstacle to trade. . .
Cited – Sapod Audic v Eco-Emballages SA ECJ 6-Jun-2002
Europa Directive 83/189/EEC – Procedure for the provision of information in the field of technical standards and regulations – Obligation to communicate draft technical regulations – Directives 75/442/EEC and . .
Cited – Schwibbert (Intellectual Property) ECJ 28-Jun-2007
Europa Directive 98/34/EC Procedure for the provision of information in the field of technical standards and regulations – Obligation to communicate draft technical regulations National law requiring the . .

Cited by:
Cited – Cadder v Her Majesty’s Advocate SC 26-Oct-2010
Statement without lawyer access was inadmissible
The accused complained that he had been convicted for assault and breach of the peace on the basis of a statement made by him during an interview with the police where, under the 1995 Act, he had been denied access to a lawyer.
Held: The . .
Cited – Gordon v Scottish Criminal Cases Review Commission (Scotland) SC 22-Mar-2017
The appellant the Commission’s decision not to refer his case back to the court. They had agreed that a miscarriage of justice might have occurred, but concluded that it was not in the interests of justice to make such a referral. His statement had . .

Lists of cited by and citing cases may be incomplete.

Crime, European, Constitutional

Updated: 01 November 2021; Ref: scu.418442

Rex v John Wilkes, Esq: 7 Feb 1770

The law must be applied even if the heavens fell

An information for a misdemeanor may be amended the day before trial by a single Judge at chambers on hearing both sides and without the consent of the defendant.
On setting aside John Wilkes’ outlawry for publishing The North Briton, Lord Mansfield said that the law must be applied even if the heavens fell

[1770] EngR 34, (1770) 4 Burr 2527, (1770) 98 ER 327 (B)
Commonlii
England and Wales
Citing:
See Also – John Wilkes, Esq v The King HL 1768
Mr Wilkes had been accused of making a seditious libel against the King. He had peaded not guilty, but then absconded after his conviction, but before his sentence. . .
See Also – John Wilkes v The King PC 16-Jan-1769
An information for an offence, is a surmise or suggestion upon record, on behalf of the King, to a Court of Criminal Jurisdiction, and is to all intents and purposes the King’s suit; and may be filed by tbe Solicitor General, during a vacancy of the . .

Cited by:
Cited – PJS v News Group Newspapers Ltd SC 19-May-2016
The appellants had applied for restrictions on the publication of stories about their extra marital affairs. The Court of Appeal had removed the restrictions on the basis that the story had been widely spread outside the jurisdiction both on the . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Practice

Leading Case

Updated: 01 November 2021; Ref: scu.374207

Vauxhall Estates Ltd v Liverpool Corporation: KBD 1932

The court looked at the question of the implied repeal of legislation.
Avory J said: ‘I should certainly hold . . that no Act of Parliament can effectively provide that no future Act shall interfere with its provisions . . [I]f they [the two statutes] are inconsistent to that extent [viz. so that they cannot stand together], then the earlier Act is impliedly repealed by the later in accordance with the maxim ‘Leges posteriores priores contrarias abrogant’.’

Avory J
[1932] 1 KB 733
Acquisition of Land (Assessment of Compensation) Act 1919 2, Housing Act 1925 46
England and Wales
Cited by:
Considered – Ellen Street Estates Limited v Minister for Health CA 1934
S.2 of the Acquisition of Land (Assessment of Compensation) Act 1919 provided for the assessment of compensation in respect of land acquired compulsorily for public purposes according to certain rules. Then by s.7(1): ‘The provisions of the Act or . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.241356

Lane v Esdaile: HL 5 May 1891

The court considered the extent of the House’s jurisdiction as an appellate court. Section 3 of the 1876 Act provided that an appeal should lie to the House of Lords from ‘any order or judgment of . . Her Majesty’s Court of Appeal in England’. The court of appeal had refused leave to appeal against an interlocutory order.
Held: The section clearly anticipated a range of matters in the Court of Appeal from which appeal would not lie, and ought to be construed to disallow frivolous appeals. A provision requiring the leave of a court to appeal will by necessary intendment exclude an appeal against the grant or refusal of leave, notwithstanding the general language of a statutory right of appeal against decisions of that court.
Lord Halsbury LC accepted that the words ‘order or judgment’ in section 3 were capable of including a decision to refuse leave. The question was whether such a construction could be reconciled with the terms and purpose of Ord LVIII r 15. At p 211, he said: ‘But when I look not only at the language used, but at the substance and meaning of the provision, it seems to me that to give an appeal in this case would defeat the whole object and purview of the order or rule itself, because it is obvious that what was there intended by the Legislature was that there should be in some form or other a power to stop an appeal – that there should not be an appeal unless some particular body pointed out by the statute (I will see in a moment what that body is), should permit that an appeal should be given. Now just let us consider what that means, that an appeal shall not be given unless some particular body consents to its being given. Surely if that is intended as a check to unnecessary or frivolous appeals it becomes absolutely illusory if you can appeal from that decision or leave, or whatever it is to be called itself. How could any Court of Review determine whether leave ought to be given or not without hearing and determining upon the hearing whether it was a fit case for an appeal? And if the intermediate Court could enter and must enter into that question, then the Court which is the ultimate Court of Appeal must do so also. The result of that would be that in construing this order, which as I have said is obviously intended to prevent frivolous and unnecessary appeals, you might in truth have two appeals in every case in which, following the ordinary course of things, there would be only one; because if there is a power to appeal when the order has been refused, it would seem to follow as a necessary consequence that you must have a right to appeal when leave has been granted, the result of which is that the person against whom the leave has been granted might appeal from that, and inasmuch as this is no stay of proceeding the Court of Appeal might be entertaining an appeal upon the very same question when this House was entertaining the question whether the Court of Appeal ought ever to have granted the appeal, My Lords, it seems to me that that would reduce the provision to such an absurdity that even if the language were more clear than is contended on the other side one really ought to give it a reasonable construction.’

Lord Halsbury LC
[1891] AC 210, [1891] UKHL 4
Bailii
Appellate Jurisdiction Act 1876 3
England and Wales
Cited by:
Cited – Regina v London Borough of Hammersmith and Fulham And Others, ex parte Burkett and Another HL 23-May-2002
The applicant sought judicial review of the respondent’s grant of planning permission for a development which would affect her. The authority objected that the application was made after three months after their decision, and so leave should not be . .
Applied – In re Housing of the Working Classes Act 1890, Ex parte Stevenson CA 1892
A party had applied to a judge for what in effect amounted to leave to appeal and had been refused.
Held: Wherever power is given to a legal authority to grant or refuse leave to appeal, the decision of that authority is, from the very nature . .
Explained – 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 – Dhillon v Secretary of State for the Home Department CACD 1988
The court considered the jurisdiction of the Court of Appeal to hear certain appeals, saying that ‘Lane v. Esdaile is of general application and provides that where leave to bring proceedings is required it is not possible to appeal against a . .
Cited – Regina v Secretary of State for the Home Department, Ex parte Turkoglu CA 1987
The applicant had been granted bail by a High Court judge when he was given leave to apply for judicial review of the decision refusing him leave to enter the United Kingdom. His application for judicial review was subsequently dismissed and the . .
Cited – Rickards v Rickards CA 20-Jun-1989
What Lane v. Esdaile decided, and all that it decided, was that where it is provided that an appeal shall lie by leave of a particular court or courts, neither the grant nor refusal of leave is an appealable decision. The Court of Appeal could . .
Cited – Geogas SA v Trammo Gas Ltd (The Baleares) HL 1991
Charterers had appealed an arbitration award. The judge set it aside. The CA gave leave and allowed the appeal saying that as a question of mixed fact and law sought leave to appeal against an arbitration award.
Held: The House had no . .
Cited – In re Poh HL 1983
The applicant had unsuccessfully applied to the Divisional Court for leave to apply for judicial review and renewed his application, equally unsuccessfully, to the Court of Appeal. He then petitioned for leave to appeal to the House of Lords.
Cited – Roche v The United Kingdom ECHR 19-Oct-2005
(Grand Chamber) The claimant had been exposed to harmful chemicals whilst in the Army at Porton Down in 1953. He had wished to claim a service pension on the basis of the ensuing personal injury, but had been frustrated by many years of the . .
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 Secretary of State for Trade and Industry, Ex Parte Eastaway HL 8-Nov-2000
Where the Court of Appeal had refused permission to apply for judicial review after a similar refusal by a judge, that decision was also, by implication, a refusal to grant permission to appeal against the judge’s decision, and there was no scope . .
Cited – Walsall Metropolitan Borough Council v Secretary of State for Communities and Local Government CA 6-Feb-2013
The Council sought permission to appeal against the setting aside of two enforcement notices, leave having been refused by the Administrative court. The court now considered whether it had jusridiction, and whether the rule in Lane v Esdaile was to . .
Cited – Huggett v Secretary of State for the Environment Etc; Wendy Fair Markets Ltd v Same; Bello v Etc CA 1-Mar-1995
There is no power for Court of Appeal itself to give leave to appeal after High Court’s refusal of leave on an enforcement notice. The court rejected the applicant’s submission that a High Court judge’s decision refusing permission to appeal under . .
Cited – Sarfraz v Disclosure and Barring Service CA 22-May-2015
The claimant appealed against the refusal of the defendant to remove his name from the list of those barred from working with children. He had been a GP. Though not priosecuted for any criminal offence the Professional Conduct Committee had found . .
Cited – Campbell v The Queen PC 3-Nov-2010
(Court of Appeal of Jamaica) The defendant had been convicted of murder and his applications for leave to appeal against conviction were refused. He applied to the Privy Council for special leave to appeal from a decision of the Court of Appeal of . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.182907

Abbassy v Commissioner of Police for the Metropolis: CA 28 Jul 1989

The court considered what information had to be given to a suspect on his arrest.
Held: The question whether or not the information given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer. The person arrested is either told enough or he is not. The court set out a test for the validity of the jury’s conclusions: ‘ . . . a necessary inconsistency which would be sufficient to vitiate the trial on the basis that the jury must have based their deliberations on a false approach or otherwise been unreliable so as to justify a retrial.’
Woolf LJ said: ‘Whether or not the information which is given is adequate has to be assessed objectively having regard to the information which is reasonably available to the officer . . [Doing what a reasonable person would have done in the circumstances] involves informing the person who is arrested in non-technical and not necessarily precise language of the nature of the offence said to constitute the crime for which he is being arrested.’
Purchas LJ made it clear that the question whether sufficient reasons were given for the arrest was a question of fact not law.

Purchas LJ, Mustill LJ, Woolf LJ
[1990] 1 WLR 385, [1989] EWCA Civ 7, [1990] 1 All ER 193, (1989) 90 Cr App R 250
Bailii
England and Wales
Citing:
Cited – Christie v Leachinsky HL 25-Mar-1947
Arrested Person must be told basis of the Arrest
Police officers appealed against a finding of false imprisonment. The plaintiff had been arrested under the 1921 Act, but this provided no power of arrest (which the appellant knew). The officers might lawfully have arrested the plaintiff for the . .
Cited – Wheatley v Lodge 1971
An arrest was found to have been lawful because the officer’s explanation was sufficient even though it could not have been understood by the suspect who was deaf. A police officer was required to take reasonable steps to communicate the fact of an . .

Cited by:
Cited – Taylor (A Child Proceeding By his Mother and Litigation Friend C M Taylor) v Chief Constable of Thames Valley Police CA 6-Jul-2004
The Chief Constable appealed aganst a finding that his officers had wrongfully arrested and imprisoned the claimant. The claimant was 10 years old when arrested, and complained that the officers had not properly advised him of the nature and purpose . .
Cited – Purchase v Thames Valley Police CA 11-Apr-2001
The defendant sought leave to appeal an award of damages for assault by four police officres on the claimant. The jury had been asked various questions about their conclusions on the facts. The defendant said the answers given were inconsistent.
Police, Torts – Other, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.198673

Re the Initiative and Referendum Act: PC 1919

Assemply’s Power to Enact for Referendum

The Board heard a referral from the Manitoba government to the Court of King’s Bench for a ruling upon the question of whether the Manitoba Legislative Assembly had jurisdiction to enact a referendum act. Mathers CJ had decided that the legislature had such authority. The Court of Appeal overturned that decision. The parties took the matter directly to the Privy Council without going first to the Supreme Court of Canada.
Held: The lieutenant Governor had no such power. Viscount Haldane ruled the legislation unconstitutional. The Act, which would permit an initiative voted upon by voters at large to become law if approved by a majority without passage through the legislature and without royal assent, was unconstitutional. A ‘legislature may not ‘create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence’
The scheme of the Constitution Act, 1867 was ‘not to weld the Provinces into one, nor to subordinate Provincial Governments to a central authority, but to establish a central government in which these Provinces should be represented, entrusted with exclusive authority only in affairs in which they had a common interest. Subject to this each Province was to retain its independence and autonomy and to be directly under the Crown as its head.’
The Board stated (obiter) that while a legislature could delegate legislation to subordinate agencies: ‘it does not follow that it can create and endow with its own capacity a new legislative power not created by the British North America Act to which it owes it own existence.’
Viscount Haldane expressed a reservation that the ability to legislate for the government of a territory does not extend to establishing a legislature for a self-governing territory armed with general legislative authority: ‘No doubt a body, with a power of legislation on the subjects entrusted to it so ample as that enjoyed by a Provincial Legislature in Canada, could, while preserving its own capacity intact, seek the assistance of subordinate agencies, as had been done when in Hodge v. The Queen, the Legislature of Ontario was held entitled to entrust to a Board of Commissioners authority to enact regulations relating to taverns; but it does not follow that it can create and endow with its own capacity a new legislative power not created by the Act to which it owes its own existence. Their Lordships do no more than draw attention to the gravity of the constitutional questions which thus arise.’

Viscount Haldane
[1919] AC 935
Canada

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.393375

Heydon’s Case: 1584

Mischief rule of Iinterpretation

Lord Coke stated the basis of the mischief rule of interpretation: ‘For the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law), four things are to be discerned and considered: (1st). What was the common law before the making of the Act? (2nd). What was the mischief and defect for which the common law did not provide. (3rd). What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth. And, (4th). The true reason of the remedy; and then the office of all the judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.’

Lord Coke
(1584) 3 Co Rep 7a, [1584] EWHC Exch J36, 76 ER 637, Pasch 26 Eliz, 20 Eliz Rot 140
Bailii
England and Wales
Cited by:
Cited – Cross v Kirklees Metropolitan Borough Council CA 27-Jun-1997
The Council’s duty to maintain a highway is not absolute. It must take reasonable steps to prevent or clear ice forming on pathway. Lord Justice Evans analysed the application of Section 41 to a situation which arose from ice and snow. In any case . .
Cited – Enion v Sefton Metropolitan Borough Council CA 9-Feb-1999
The roadway was regularly closed off when flooded by the sea, and then cleaned up afterwards. The claimant slipped on seaweed on the road. The Council appealed against an award of damages, saying it was not practicable to close the road off to . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Faulkner and others v BT Northern Ireland and others NIIT 24-Oct-2005
. .
Cited – Kelly v Edmund Nuttall Sons and Co. (London) Ltd SCS 15-Jul-1965
. .
Cited – Ransom (Inspector of Taxes) v Higgs, etc HL 13-Nov-1974
A company had devised two elaborate schemes with a view to avoiding income tax. Lord Wilberforce discussed the definition of ‘trade’: ‘`Trade’ cannot be precisely defined, but certain characteristics can be identified which trade normally has. . .
Cited – Applin v Race Relations Board HL 27-Mar-1974
A couple cared for children without fee who were referred to them by a local authority. The children they cared for included coloured children. Two individuals sought to prevent the couple caring for coloured children. The question for the House of . .
Cited – Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG HL 5-Mar-1975
Statute’s Mischief May be Inspected
The House considered limitations upon them in reading statements made in the Houses of Parliament when construing a statute.
Held: It is rare that a statute can be properly interpreted without knowing the legislative object. The courts may . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.189970

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 ourselves and yourselves as principals, we alone being liable to you for its performance’ is effective to preclude any contention that the parties named in the contract are contracting as agents for others. Municipal courts could not adjudicate on or enforce rights arising out of international treaties, unless they had been incorporated into domestic law. ‘As a matter of the constitutional law of the United Kingdom, the Royal Prerogative, whilst it embraces the making of treaties, does not extend to altering the law or conferring rights upon individuals or depriving individuals of rights which they enjoy in domestic law without the intervention of Parliament. Treaties are not self-executing. A treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations; and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights an obligations, it is irrelevant.’

Lord Oliver
[1990] 2 AC 418, [1989] 3 WLR 969, [1989] Ch 72, [1989] 3 All ER 523
England and Wales
Citing:
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Appeal from – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry 1989
. .

Cited by:
Cited – Higgs and Mitchell v The Minister of National Security and others PC 14-Dec-1999
(Bahamas) The applicants appealed against sentences of death, saying that the executions would be unlawful while there was a pending appeal to the OAS.
Held: The appeals failed. The Bahamas was a member of the Organisation of American States, . .
Cited – European Roma Rights Centre and others v Immigration Officer at Prague Airport and Another CA 20-May-2003
A scheme had been introduced to arrange pre-entry clearance for visitors to the United Kingdom by posting of immigration officers in the Czech Republic. The claimants argued that the system was discriminatory, because Roma visitors were now . .
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 – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Cited – Regina (on the Application of Gjovalin Pepushi) v Crown Prosecution Service Admn 11-May-2004
The claimant was stopped when boarding a flight to Canada, having previously stopped in France and Italy. He bore a false Swedish passport, and intended to claim asylum in Canada. He now claimed the benefit of the article 31 (per Adimi), to defend a . .
Cited – A, B, C, D, E, F, G, H, Mahmoud Abu Rideh Jamal Ajouaou v Secretary of State for the Home Department CA 11-Aug-2004
The claimants had each been detained without trial for more than two years, being held as suspected terrorists. They were free leave to return to their own countries, but they feared for their lives if returned. They complained that the evidence . .
Cited – 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 – A and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – 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 . .
See Also – J H Rayner (Mincing Lane) Limited and others v Federative Republic of Brazil CA 29-Jul-1999
. .
Cited – Mohamed, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 1) Admn 21-Aug-2008
The claimant had been detained by the US in Guantanamo Bay suspected of terrorist involvement. He sought to support his defence documents from the respondent which showed that the evidence to be relied on in the US courts had been obtained by . .
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 – 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 – 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, Agency, Company, Contract

Leading Case

Updated: 01 November 2021; Ref: scu.182469

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 House of Commons and the Court had no power to interfere.
Lord Coleridge said: ‘There is another proposition equally true, equally well established, which seems to me decisive of the case before us. What is said or done within the walls of Parliament cannot be inquired into a Court of law. On this point all the judges in the two great cases which exhaust the learning on the subject – Burdott v Abbott (1811) 14 East 1 and Stockdale v Hansard (1839) 9 Ad and E 1 – are agreed, and are emphatic. The jurisdiction of the Houses over their own members, their right to impose discipline within their walls, is absolute and exclusive.’
Stephen J said: ‘I think that the House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its own internal proceedings, and that the use of such actual force as may be necessary to carry into effect such a resolution as the one before us is justifiable’ and ‘The only force which comes in question in this case is such force as any private man might employ to prevent a trespass on his own land. I know of no authority for the proposition that an ordinary crime committed in the House of Commons would be withdrawn from the ordinary course of criminal justice. One of the leading authorities on the privilege of Parliament contains matter on the point and shows how careful Parliament has been to avoid even the appearance of countenancing such a doctrine.’

Lord Coleridge, Stephen J
(1884) 12 QBD 271, 32 WR 552, 53 LJQB 209, 50 LT 620, [1884] EWHC 1 (QB)
Bailii
England and Wales
Citing:
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 – 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 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 – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
Cited – Chaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
Cited – Chaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.199237

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 compared with prices paid to producers in other regions. The Minister refused to appoint a committee.
Held: The Minister was under a duty to give proper consideration to the question whether to refer the complaint, and any such decision had to be based on good reasons, and consistent with the statutory purpose. The Minister had a discretion so that the real question was how far it was subject to judicial control.
Having summarised the four conventional heads under which the exercise of such a discretion may be attacked, Lord Upjohn said: ‘In practice they merge into one another and ultimately it becomes a question whether for one reason or another the Minister has acted unlawfully in the sense of misdirecting himself in law, that is, not merely in respect of some point of law but by failing to observe the other headings I have mentioned. In the circumstances of this case, which I have sufficiently detailed for this purpose, it seems to me quite clear that prima facie there seems a case for investigation by the committee of investigation. As I have said already, it seems just the type of situation for which the machinery of section 19 was set up, but that is a matter for the Minister. He may have good reasons for refusing an investigation, he may have, indeed, good policy reasons for refusing it . . So I must examine the reasons given by the Minister, including any policy on which they may be based, to see whether he has acted unlawfully and thereby overstepped the true limits of his discretion, or as it is frequently said in the prerogative writ cases, exceeded his jurisdiction. Unless he has done so, the court has no jurisdiction to interfere.’ Lord Upjohn then proceeded to consider the Minister’s various reasons individually and in detail.

Lord Upjohn, Lord Reid, Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce
[1968] AC 997, [1968] UKHL 1, [1968] 1 All ER 694, [1968] 2 WLR 924
Bailii
Agricultural Marketing Act 1958
England and Wales
Citing:
Cited – Julius v Lord Bishop of Oxford and Another HL 23-Mar-1880
A statute enacted that with regard to certain charges against any Clerk in Holy Orders it ‘shall be lawful’ for the Bishop of the diocese ‘on the application of any party complaining thereof’ to issue a commission for enquiry.
Held: The words . .
Cited – The King v Mitchell 1913
The court considered the meaning of section 9 of the 1875 Act which read: ‘Where a person is accused before a Court of summary jurisdiction of any offence made punishable by this Act, and for which a penalty amounting to twenty pounds, or . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:
Cited – Gillan and Another, Regina (on the Application of) v Commissioner of the Police for the Metropolis and Another Admn 31-Oct-2003
The applicants challenged by way of judicial review the way they had been stopped and searched under the Act. They attended a demonstration. The search revealed nothing suspicious. General authorisations for such searches had been issued under the . .
Cited – Office of Fair Trading and others v IBA Health Limited CA 19-Feb-2004
The OFT had considered whether it was necessary to refer a merger between two companies to the Competition Commission, and decided against. The Competition Appeal Tribunal held that the proposed merger should have been referred. The OFT and parties . .
Cited – Secretary of State for Foreign and Commonwealth Affairs v Quark Fishing Limited CA 30-Oct-2002
Order confirmed. ‘while for my part I have found nothing to demonstrate bad faith on the part of the Secretary of State, the history of this case has demonstrated to my mind that the approach taken to the public decisions that had to be made fell . .
Cited – Regina v Braintree District Council ex parte Halls Admn 2-Jul-1999
Where a local authority had sold a property to a tenant, and the tenant later came back to request the release from one of the covenants given on the sale, the council was free to charge an appropriate sum for that release. It was not a covenant . .
Cited – Regina on the Application of Fisher v English Nature CA 27-May-2004
The claimants appealed a refusal of their request for a judicial review of a decision of the respondent to designate their land as being of special scientific interest because of the need to protect the stone curlew.
Held: The defendant’s . .
Cited – Spink, Regina (on the Application Of) v Wandsworth Borough Council Admn 20-Oct-2004
Parents requested the local authority to make provision for their severely disabled children. The local authority wished when deciding whether to provide adaptations of the house to make allowance for the parents’ financial resources.
Held: . .
Cited – Regina (Kent Pharmaceuticals Ltd) v Serious Fraud Office CA 11-Nov-2004
In 2002 the SFO was investigating allegations that drug companies were selling generic drugs, including penicillin-based antibiotics and warfarin, to the National Health Service at artificially sustained prices. To further the investigation the SFO . .
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 – In re Shields HL 6-Feb-2003
(Northern Ireland) The chief constable appealed against a decision that the directions he had given, that officers with poor attendance records for sickness should not be considered for promotion.
Held: The Chief Constable had, following the . .
Cited – The British Beer and Pub Association and others v Canterbury City Council Admn 24-Jun-2005
The council had required of applicants for liquor licenses more detailed information than was required by the statute. The Association challenged their policy.
Held: One aim of the legislation is to allow licensing authorities to provide a . .
Cited – Langley and others v Liverpool City Council and others CA 11-Oct-2005
Families had challenged the removal of their children into the care of foster parents by the respondents. The family father, who was blind, had taken to driving. The respondents appealed findings that they had acted unlawfully and in breach of the . .
Cited – M, Regina (on the Application of) v Gateshead Council CA 14-Mar-2006
The applicant had left care, but still received assistance. She was arrested and the police asked the attending social worker to arrange secure accommodation overnight. The respondent refused. The court was asked what duty (if any) is owed by local . .
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 – Secretary of State for Justice v Walker; Same v James CA 1-Feb-2008
The claimant had been sentenced to a short period of imprisonment but with an indeterminate term until he demonstrated that it was no longer necessary for the protection of the public. He complained that the term having expired, no opportunity had . .
Cited – Electoral Commission, Regina (On the Application of) v City of Westminster Magistrates Court and Another CA 19-Oct-2009
The UKIP party had accepted substantial donations. The donor had, through, he said, inadvertent error, had failed to ensure that he appeared on the electoral roll. The party had not taken all reasonable steps to verify his registration as required. . .
Cited – Onesearch Direct Holdings Ltd (T/A Onesearch Direct) v City of York Council Admn 19-Mar-2010
The court considered the conditions under which the respondent authority replied to all enquiries as to properties within its area. The replies were given by a standardised all inclusive information sheet derived from a central database. The . .
Applied – The Law Society of England and Wales, Regina (on The Application of) v The Lord Chancellor Admn 15-Jun-2010
Costs restriction not made under Act
The respondent had introduced rules which restricted the levels of costs which might be awarded from central funds to a successful defendant in a criminal trial who had take private representation. The amendment was made under powers in the 1985 . .
Cited – The Electoral Commission, Regina (on The Application of) v City of Westminster Magistrates Court and Another SC 29-Jul-2010
UKIP, a political party had accepted donations from an individual who had ceased to be a registered voter. An application had been made for forfeiture of the sums given. The court was now asked whether the Act created a presumption in favour of . .
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 – 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 – 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 – GC v The Commissioner of Police of The Metropolis SC 18-May-2011
The court was asked to decide from whom DNA samples could lawfully be taken by the Police,and for how long they should be kept. The first respondent now said that a declaration of incompatibility of section 64(1A) could not be avoided.
Held: . .
Applied – Regina v Braintree District Council, ex parte Malcolm William Halls CA 1-Mar-2000
When selling a house to its tenant under the right to buy legislation, the council had imposed a restrictive covenant preventing the new owner developing the land by further building. The purchaser later approached the council for its release so as . .
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 – 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 . .
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 – Modaresi, Regina (on The Application of) v Secretary of State for Health SC 24-Jul-2013
The Court was asked: ‘As: (i) a public body with obligations in public law and (ii) a public authority under the Human Rights Act 1998 can the Secretary of State for Health ‘the S/S’ lawfully refuse to refer a patient’s case to the First-tier Mental . .
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 . .
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 . .
Cited – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
No Administrative Duty of Equal Treatment
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Administrative, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.187347

The Prince’s Case: ChD 11 Jan 1606

Parliamentary Roll is Conclusive

A document on the Parliamentary Roll is conclusive as to its validity as an Act if it shows on its face that everything has been done which the common law of the United Kingdom has prescribed for the making of an Act of Parliament – that the Queen, the Lords and the Commons have assented to it: ‘If an Act be penned, that the King with the assent of the Lords, or with the assent of the Commons, it is no Act of Parliament for three ought to assent to it scil. The King, the Lords and the Commons.’

(1606) 8 Co Rep 1A, 77 ER 481, [1606] EWHC Ch J6
Bailii
England and Wales
Cited by:
Cited – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
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 . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.222714

Regina v Dougall: CACD 13 May 2010

The defendant had pleaded guilty to conspiracy to corrupt in having provided inducements for the award of medical supplies contracts to Greece. He appealed against a sentence of twelve months imprisonment, saying that it should have been suspended to accord with an agreement with the Serious Fraud office under the Act, and under which he had assisted the prosecutor.
Held: The scale of the corruption was substantial, leading to real inflation of prices in Greece.
In this jurisdiction a plea agreement or bargain between the prosecution and the defence in which they agree what the sentence should be, or present what is in effect an agreed package for the court’s acquiescence is contrary to principle. Responsibility for the sentencing decision in cases of fraud or corruption is vested exclusively in the sentencing court . . There are no circumstances in which it may be displaced.
The court should be careful not to allow the Attorney General’s Guidelines on Plea Discussions to suggest that white collar crimes are rather more respectable than other forms of crime. White collar crime or commercial crime taking the form of fraud and corruption in particular is crime. And it is not victimless: sometimes identified individuals are victims, and at others, unnamed, unknown individuals in the entire community are victims . . The Guidelines did not envisage a sentencing agreement but a statement allowing the judge to decide the sentence. The 2005 Act did either not suggest any such bargain. The defendant has earned an appropriate reward in the form of a reduced or lesser sentence from that which would otherwise be appropriate.
Are suspended sentences appropriate for such cases? The defendant (and the SFO) suggested that a pragmatic approach was required to secure co-operation from defendants. That was rejected as an attempt to tell the judge how to sentence. ‘In our jurisdiction there is no principle of any legitimate expectation to be enjoyed by the first person to co-operate with an investigating authority, that he (or she) will be the beneficiary of the most favourable sentencing outcome. Such conduct will, of course, normally provide substantial mitigation.’
Nevertheless the points deserved acknowledgement, and ‘where the appropriate sentence for a defendant whose level of criminality, and features of mitigation, combined with a guilty plea, and full co-operation with the authorities investigating a major crime involving fraud or corruption, with all the consequent burdens of complying with his part of the SOCPA agreement, would be 12 months’ imprisonment or less, the argument that the sentence should be suspended is very powerful. This result will normally follow.’ Such was applied here.

Judge LCJ, David Clarke J, Lloyd jones J
[2010] EWCA Crim 1048, [2010] Lloyd’s Rep FC 472, [2010] Crim LR 661
Bailii
Serious Organised Crime and Police Act 2005 73, Criminal Law Act 1977, Prevention of Corruption Act 1906
England and Wales
Citing:
Approved – Regina v Innospec Limited 26-Mar-2010
(Southwark Crown Court) Thomas LJ said: ‘It is clear, therefore that the SFO cannot enter into agreement under the laws of England and Wales with an offender as to the penalty in respect of the offence charged . . although the sentencing submission . .
Cited – Practice Direction (Criminal Proceedings: Consolidation) CACD 8-Jul-2002
. .
Cited – P, Regina v; Regina v Blackburn CACD 22-Oct-2007
Whilst awaiting trial, P had offered evidence against others on other serious crimes. On conviction, the judge was supplied with a statement explaining his assistance. He now appealed sentence of 17 years imprisonment for assorted serious drugs . .
Cited – Goodyear, Karl, Regina v CACD 19-Apr-2005
The defendant complained that he had pleaded guilty to a charge of corruption on the basis of an indication from the judge that he would not receive a custodial sentence. Having pleaded guilty he had then been sentenced to a six months prison . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, Constitutional

Updated: 31 October 2021; Ref: scu.414957

The Queen v Secretary of State for the Home Department, ex parte Barkoci and Malik and similar: ECJ 27 Sep 2001

The EU Treaty provisions recognising the rights of entry of certain citizens of Czechoslovakia, Poland and Bulgaria had direct effect. Three applicants had entered the UK misrepresenting their intentions to stay as temporary. Rights of entry and residence as corollaries of the right of establishment, were conferred on such nationals wishing to pursue activities of an industrial or commercial character, activities of craftsmen or activities of the professions in a member state. The rights are not absolute, and applicants could be required to make proper applications.
ECJ External relations – Association Agreement between the Communities and the Czech Republic – Freedom of establishment – Czech nationals wishing to establish themselves in a Member State as self-employed workers.

Rodriguez Iglesias P
Times 13-Nov-2001, C-63/99, C-257/99, [2001] EUECJ C-257/99, [2001] EUECJ C-63/99, C-235/99, [2002] INLR 152, [2001] 3 CMLR 48, [2001] All ER (EC) 903, [2001] ECR I-6557
Bailii, Bailii
European

Immigration, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.166666

Bromley London Borough Council v Greater London Council: HL 17 Dec 1981

Councillors’ Duties replace Election Promises

Bromley complained of a supplementary precept issued by the respondent to implement a commitment, contained in an election manifesto for the election in May 1979, upon which the majority on the GLC had been elected.
Held: In making choices of policy or action on particular matters following an election, those who were elected must not ‘treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos.’ The Council had a fiduciary duty owed to all rate payers and council tax payers to conserve its available financial resources. Its duties were owed not just to ratepayers, but In making choices of policy or action on particular matters following an election, those who were elected must not ‘treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos.’
Lord Brandon of Oakbrook said: ‘It is, of course, entirely appropriate for a council, the majority of whose members have been elected after setting out a particular policy in their election manifesto, to take into account, and give considerable weight to, that circumstance when exercising their discretion in relation to that policy after they have been elected and come to power. It is, however, entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that the policy in accordance with their election promises, whatever the cost and other countervailing considerations may turn out to be.’

Lord Diplock, Lord Wilberforce, Lord Keith, Lord Scarman, Lord Brandon of Oakbrook
[1983] AC 768, [1982] 1 All ER 153, [1981] UKHL 7, [1982] 2 WLR 62
Bailii
Transport (London) Act 1969
England and Wales
Cited by:
Cited – Regina v Department of Education and Employment ex parte Begbie CA 20-Aug-1999
A statement made by a politician as to his intentions on a particular matter if elected could not create a legitimate expectation as regards the delivery of the promise after elected, even where the promise would directly affect individuals, and the . .
Cited – Regina v Braintree District Council ex parte Halls Admn 2-Jul-1999
Where a local authority had sold a property to a tenant, and the tenant later came back to request the release from one of the covenants given on the sale, the council was free to charge an appropriate sum for that release. It was not a covenant . .
Cited – University of East London Higher Education Corporation v London Borough of Barking and Dagenham and others ChD 9-Dec-2004
The University wanted to sell land for development free of restrictive covenants. It had previously been in the ownership of both the servient and dominant land in respect of a restrictive covenant. The Borough contended that the restrictive . .
Cited – Partingdale Lane Residents’ Association, Regina (on the Application of) v Barnet London Borough Council Admn 2-Apr-2003
Complaint was made that a Councillor had closed his mind to any arguments and had predetermined the decision on a proposed road re-opening order.
Held: The application was allowed. Councillor Coleman had himself gone beyond a legitimate . .

Lists of cited by and citing cases may be incomplete.

Local Government, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.187441

Conway v Rimmer: HL 28 Feb 1968

Crown Privilege for Documents held by the Polie

The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these were withheld on the ground of Crown privilege. The House considered that claim as to civil actions of documents and information in the hands of the police.
Held: The courts will give great weight to preserving the confidentiality of tax documents in the hands of the Revenue.
Lord Reid said: ‘The police are carrying on an unending war with criminals many of whom are today highly intelligent. So it is essential that there should be no disclosure of anything which might give any useful information to those who organise criminal activities.’ However: ‘I would therefore propose that the House ought now to decide that courts have and are entitled to exercise a power and duty to hold a balance between the public interest, as expressed by a Minister, to withhold certain documents or other evidence, and the public interest in ensuring the proper administration of justice. That does not mean that a court would reject a Minister’s view: full weight must be given to it in every case, and if the Minister’s reasons are of a character which judicial experience is not competent to weigh, then the Minister’s view must prevail. But experience has shown that reasons given for withholding whole classes of documents are often not of that character. For example a court is perfectly well able to assess the likelihood that, if the writer of a certain class of document knew that there was a chance that his report might be produced in legal proceedings, he would make a less full and candid report than he would otherwise have done. I do not doubt that there are certain classes of documents which ought not to be disclosed whatever their content may be. Virtually everyone agrees that Cabinet minutes and the like ought not to be disclosed until such time as they are only of historical interest. But I do not think that many people would give as the reason that premature disclosure would prevent candour in the Cabinet. To my mind the most important reason is that such disclosure would create or fan ill-informed or captious public or political criticism.’
As to the different positions of the law in Scotland and England, Lord Reid said: ‘But here we are dealing purely with public policy – with the proper relation between the powers of the executive and the powers of the courts – and I can see no rational justification for the law on this matter being different in the two countries.’

Lord Reid Lord Morris of Borth-y-Gest, Lord Hodson, Lord Pearce, Lord Upjohn
[1968] AC 910, [1968] 2 WLR 998, [1968] 1 All ER 874, [1968] UKHL 2
Bailii
England and Wales
Citing:
Cited – Duncan v Cammell, Laird and Company Limited (Discovery) HL 27-Apr-1942
Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s . .
Cited – Mackalley’s case 1611
If an officer or magistrate is killed when executing a process or preserving the peace, the offence is murder and remains so even if there is some defect in the process being executed, or the arrest was being made at night.
Constables were . .
Cited – Fisher v Oldham Corporation KBD 1930
On Officer was subject to a claim for false imprisonment on an unlawful arrest, and it was asserted that the Watch Committee of the local authority were vicariously liable. The plaintiff pointed to his Oath of Office: ‘I . . . . . . . . . of . . . . . .

Cited by:
Cited – Lonrho Plc v Fayed and Others (No 4 ) CA 27-Oct-1993
Public interest immunity does not attach to documents in the hands of a taxpayer and his advisers. They are not in any event discloseable. (Bingham) ‘a claim made by the revenue to withhold documents relating to a taxpayer’s tax affairs from . .
Cited – Home Office v Hariette Harman HL 11-Feb-1982
The defendant had permitted a journalist to see documents revealed to her as in her capacity as a solicitor in the course of proceedings.
Held: The documents were disclosed under an obligation to use them for the instant case only. That rule . .
Cited – Reclaiming Motion In Petition of Scott Davidson for Judicial Review of A Decision To Continue To Detain the Prisoner In Inhuman and Degrading Prison C SCS 18-Dec-2001
A prisoner sought an order for his removal from a prison found to have a regime which breached his human rights. The Crown replied that an order could not be made under s21 of the 1947 Act.
Held: The prisoner had followed through his rights to . .
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 – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
Cited – Science Research Council v Nasse; BL Cars Ltd (formerly Leyland Cars) v Voias HL 1-Nov-1979
Recent statutes had given redress to anyone suffering unlawful discrimination on account of race sex or trade union activities. An employee sought discovery of documents from his employer which might reveal such discrimination.
Held: The court . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
Cited – Arias and Others v Commissioner for the Metropolitan Police and Another CA 1-Aug-1984
A police officer searched premises under a warrant seizing documents of a trust corporation managed by the occupier. The trustees sought return of the documents or, alternatively, copies of them. The police believed that the documents were evidence . .
Cited – Andrew v News Group Newspapers Ltd and Commissioner of the Police for the Metropolis ChD 18-Mar-2011
The claimant sought unredacted disclosure of documents by the second defendant so that he could pursue an action against the first, who, he said, were thought to have intercepted his mobile phone messages, and where the second defendant had . .
Cited – In re A (A Child) SC 12-Dec-2012
A woman, X, had made an allegation in confidence she had been sexually assaulted as a child. The court was asked whether that confidence could be overriden to allow an investigation to protect if necessary a child still living with the man. Evidence . .
Cited – Regina v Lewes Justices ex parte Secretary of State for the Home Department; Rogers v Home Secretary HL 1972
The House considered a claim for public interest immunity.
Held: Lord Simon of Glaisdale said: ‘the public interest which demands that the evidence be withheld has to be weighed against the public interest in the administration of justice that . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .

Lists of cited by and citing cases may be incomplete.

Taxes Management, Constitutional, Police, Litigation Practice

Leading Case

Updated: 31 October 2021; Ref: scu.184570

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 of Community law.
Any provision of a national legal system and any legislative, administrative or judicial practice which might impair the effectiveness of Community law by withholding from the national court having jurisdiction to apply such law the power to do everything necessary at the moment of its application to set aside national legislative provisions which might prevent, even temporarily, Community rules from having full force and effect are incompatible with the requirements inherent in the very nature of Community law.
The full effectiveness of Community law would be just as much impaired if a rule of national law could prevent a court seised of a dispute governed by Community law from granting interim relief in order to ensure the full effectiveness of the judgment to be given on the existence of the rights claimed under Community law. It follows that a court which in those circumstances would grant interim relief, if it were not for a rule of national law, is obliged to set aside that rule.
That interpretation is reinforced by the system established by Article 177 of the EEC Treaty whose effectiveness would be impaired if a national court, having stayed proceedings pending the reply by the Court of Justice to the question referred to it for a preliminary ruling, were not able to grant interim relief until it delivered its judgment following the reply given by the Court of Justice .

Due P
[1990] 2 Lloyds Rep 351, [1990] 3 CMLR 1, C-213/89, [1990] EUECJ C-213/89
Bailii
European
Citing:
Referred back to – 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 . .
Referral from – 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 . .

Cited by:
Referred back from – 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 . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.160299

Franklin v Minister of Town and Country Planning: HL 2 Jul 1947

A government minister had decided to confirm a draft new town order following a public local inquiry. One of the grounds on which the decision was challenged was that the minister could not consider the report and the objections without a pre-disposition to favour the confirmation of the draft order, since it took forward a government policy to which he was necessarily committed.
Held: The minister’s decision-making function was not of a judicial or quasi-judicial character: the purpose of the report was to provide him with information, and the only question was whether he had genuinely considered the report and the objections when they were submitted to him. There is no universal rule requiring that decision-makers must possess the independence and impartiality required of a court or tribunal: it is necessary to take account of the constitutional position of the decision-maker, and of the nature of the decision.

Lord Thankerton
[1947] UKHL 3, [1948] AC 87, (1947) 176 LT 312, [1947] 2 All ER 289
Bailii
New Towns Act 1946
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Planning, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.248506

Regina v Sheer Metalcraft Ltd: 1954

The defendant company was charged with purchasing sheet metals at prices in excess of those permitted by Order. The defendant complained that the Order had been printed without the Schedules, but the Secretary of State had not given the necessary certificate to exempt the Schedule.
Held: The Statutory Instrument took effect after being made by the Minister and laid before Parliament. The omission of the certificate was a matter of procedure and did not invalidate the Order. However the burden of evidence was on the Crown to establish that at the time of the alleged contravention reasonable steps had been taken to bring the Order to those affected by it.

[1954] QB 586, [1954] 1 All ER 542, [1954] 1 QB 586, [1954] 2 WLR 777, (1954) 118 JP 190, (1954) 98 Sol Jo 253
Iron and Steel Process Order 1951, Statutory Instruments Act 1946
England and Wales

Crime, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.539329

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 with a success fee and under such insurance. The defendants refused liability for either.
Held: The fees were rejected. The Board was not a court of England but of the Commonwealth. It was governed not by Parliament but by Her Majesty in Council. Such fees had been allowed in England only by virtue of an Act of Parliament, which itself limited its effect. It is ‘unthinkable that a CFA/ATE regime should be introduced into the taxation of costs incurred in appeals before it without any prior attempt to ascertain ‘the wishes of the [parts] of the [Commonwealth] primarily affected.’ ‘

Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury and Sir Henry Brooke
[2009] UKPC 26, Times 10-Jul-2009, [2009] 4 Costs LR 607, [2010] 1 WLR 312
Bailii
Judicial Committee (General Appellate Jurisdiction) Rules Order 1982 (SI 1982/1876) 75, Judicial Committee (General Appellate Jurisdiction) Rules (Amendment) Order 2005 (SI 2005/1139) 3, Judicial Committee Act 1833 15
England and Wales
Citing:
Cited – 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 . .
Cited – Alexander E Hall and Co v Mackenna PC 1923
Viscount Haldane discussed the status of the Privy Council: ‘The Judicial Committee of the Privy Council is not an English body in any exclusive sense. It is no more an English body than it is an Indian body, or a Canadian body, or a South African . .
See Also – Seaga v Harper PC 30-Jan-2008
Public meeting gave no qualified privilege
(Jamaica) The appellant politician pleaded that his words about a senior policemen when spoken at a public meeting were protected from an action in slander by qualified privilege.
Held: The appeal failed. . .

Lists of cited by and citing cases may be incomplete.

Costs, Constitutional

Updated: 31 October 2021; Ref: scu.349076

Duncan v Cammell, Laird and Company Limited (Discovery): HL 27 Apr 1942

Relatives of deceased seamen claimed damages against the defendants after their husbands were lost a sea in a submarine built by the defendants. The Ministry of Defence instructed the defendants not to disclose any details of the boat’s construction, on the ground that it would be contrary to the public interest to produce them.
Held: The Minister’s declaration that national security required non-disclosure was sufficient and binding on the courts. If the Crown made a claim to Crown privilege in proper form, the Courts were precluded from investigating further: ‘This question is of high constitutional importance, for it involves a claim by the Executive to restrict the material which might otherwise be available for the tribunal which is trying the case.’
Viscount Simon LC said: ‘documents otherwise relevant and liable to production must not be produced if the public interest requires that they should be withheld’ and ‘In a word, it is not enough that the minister of the department does not want to have the documents produced. The minister, in deciding whether it is his duty to object, should bear these considerations in mind, for he ought not to take the responsibility of withholding production except in cases where the public interest would otherwise be damnified, for example, where disclosure would be injurious to national defence, or to good diplomatic relations, or where the practice of keeping a class of documents secret is necessary for the proper functioning of the public service. When these conditions are satisfied and the minister feels it is his duty to deny access to material which would otherwise be available, there is no question but that the public interest must be preferred to any private consideration.’

Simon L, Thankerton, Russell of Killowen, Macmillan, Wright, Porter, Clauson LL
[1942] AC 624, [1942] UKHL 3
Bailii
England and Wales
Cited by:
Cited – Conway v Rimmer HL 28-Feb-1968
Crown Privilege for Documents held by the Polie
The plaintiff probationary police constable had been investigated, prosecuted and cleared of an allegation of theft. He now claimed damages for malicious prosecution, and in the course of the action, sought disclosure of five documents, but these . .
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.223564

Prohibitions, Case of; Prohibitions del Roy: KBD 1 Nov 1607

King May Sit in Court but has no Part in Judgment

The King may sit in the King’s Bench, but the Court gives the judgment. No King after the conquest assumed to himself to give any judgment in any cause whatsoever which concerned the administration of justice, within the realm; but these causes were solely determined in the Courts of Justice.
Sir Edward Coke asserted, the legal method of an expositor of the law required ‘long study and experience, before that a man can attain to the cognizance of it.

[1607] EWHC KB J23
Bailii
England and Wales

Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.248366

Wilkes v Wood: CCP 6 Dec 1763

Entry by Force was Unconstitutional

The plaintiff challenged a warrant of commitment to the Tower of London addressed to John Wilkes by name. The plaintiff sought damages after his property was entered by force on behalf of the Secretary of State.
Held: The case was decided on a point of parliamentary privilege from arrest alone . . Pratt LCJ said: ‘the law never admits of a general search-warrant.’ An award of 1,000 pounds damages was given.

Pratt LCJ
[1763] EWHC CP J95, [1763] EngR 103, (1763) Lofft 1, (1763) 98 ER 489
Bailii, Commonlii
England and Wales
Cited by:
Cited – Regina v Inland Revenue Commissioners ex parte Rossminster Ltd HL 13-Dec-1979
The House considered the power of an officer of the Board of Inland Revenue to seize and remove materials found on premises which a warrant obtained on application to the Common Serjeant authorised him to enter and search; but where the source of . .
See Also – John Wilkes, Esq v The King HL 1768
Mr Wilkes had been accused of making a seditious libel against the King. He had peaded not guilty, but then absconded after his conviction, but before his sentence. . .
See also – John Wilkes v The King PC 16-Jan-1769
An information for an offence, is a surmise or suggestion upon record, on behalf of the King, to a Court of Criminal Jurisdiction, and is to all intents and purposes the King’s suit; and may be filed by tbe Solicitor General, during a vacancy of the . .
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 – Thakrar v The Secretary of State for Justice Misc 31-Dec-2015
County Court sitting at Milton Keynes. The claimant prisoner sought damages saying that his personal property had been damaged whilst in the care of the defendant.
Held: The claims succeeded in part. Some damage was deliberate. There was a . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.270751

Flaminio Costa v ENEL (Procedure): ECJ 15 Jul 1964

‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent unilateral act incompatible with the concept of the Community cannot prevail . .’
ECJ 1. In the context of requests for preliminary rulings, the court has no jurisdiction either to apply the treaty to a specific case or to decide upon the validity of a provision of domestic law in relation to the treaty, as it would be possible for it to do under article 169. Nevertheless, the court has power to extract from a question imperfectly formulated by the national court those questions which alone pertain to the interpretation of the treaty.
2. Article 177 is based upon a clear separation of functions between national courts and the court of justice and cannot empower the latter either to investigate the facts of the case or to criticize the grounds and purpose of the request for interpretation.
3. By contrast with ordinary international treaties, the eec treaty has created its own legal system which, on the entry into force of the treaty, became an integral part of the legal systems of the member states and which their courts are bound to apply.
By creating a community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the states to the community, the member states have limited their sovereign rights and have thus created a body of law which binds both their nationals and themselves.
The integration into the laws of each member state of provisions which derive from the community and more generally the terms and the spirit of the treaty, make it impossible for the states, as a corollary, to accord precedence to a unilateral and subsequent measure over a legal system accepted by them on a basis of reciprocity. Such a measure cannot therefore be inconsistent with that legal system. The law stemming from the treaty, an independent source of law, could not because of its special and original nature, be overridden by domestic legal provisions, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called into question.
The transfer by the states from their domestic legal system to the community legal system of the rights and obligations arising under the treaty carries with it a permanent limitation of their sovereign rights.
4. The commission has the duty of seeing that the member states respect those obligations which have been imposed upon them by the treaty and which bind them as states without creating individual rights, but this obligation on the part of the commission does not give individuals the right to allege, in community law or under article 177, either failure by the state concerned to fulfil any of its obligations or breach of duty on the part of the commission.
5. Article 102 of the eec treaty contains no provisions which are capable of creating individual rights which national courts must protect.
6. Article 93 of the eec treaty contains no provisions which are capable of creating individual rights which national courts must protect.
7. A member state’s obligation under the eec treaty, which is neither subject to any conditions nor, as regards its execution or effect, to the adoption of any measure either by the states or by the commission, is legally complete and consequently capable of producing direct effects on the relations between member states and individuals. Such an obligation becomes an integral part of the legal system of the member states, and thus forms part of their own law, and directly concerns their nationals in whose favour it has created individual rights which national courts must protect.
8. Article 53 of the eec treaty constitutes a community rule capable of creating individual rights which national courts must protect.
9. Article 53 of the eec treaty is satisfied so long as no new measure subjects the establishment of nationals of other member states to more severe rules than those prescribed for nationals of the country of establishment, whatever the legal system governing the undertakings.
10. Article 37 ( 2 ) of the eec treaty constitutes in all its provisions a rule of community law capable of creating individual rights which national courts must protect.
11. The provisions of article 37 ( 2 ) of the eec treaty have as their object the prohibition of any new measure contrary to the principles of article 37 ( 1 ), that is any measure having as its object or effect a new discrimination between nationals of member states regarding the conditions in which goods are procured and marketed, by means of monopolies or bodies wich must, first, have as their object transactions regarding a commercial product capable of being the subject of competition and trade between member states, and secondly must play an effective part in such trade.
It is a matter for the court dealing with the main action to assess in each case whether the economic activity under review relates to such a product which, by virtue of its nature and the technical or international conditions to which it is subject, is capable of playing such a part in imports or exports between nationals of the member states.
LMA The case involved a conflict between a number of Treaty provisions, and an Italian statute nationalising the electricity company of which Signor Costa was a shareholder. But here the Italian law was later in time. On being brought before the Milan tribunal for refusing to pay his bill (about andpound;110p.) Signor Costa argued that the company was in breach of EC Law. The company argued ‘lex posterior’ the Italian Act nationalising the electricity company was later in time than the Italian Ratification Act, the act incorporating EC law therefore it took priority. The Italian Court referred this question of priorities to the ECJ. The principle of supremacy of EC law was clearly affirmed by the ECJ. The Court went on to say ‘The transfer, by MS, from their national orders in favour of the Community order of rights and obligations arising from the Treaty, carries a clear limitation of their sovereign right upon which a subsequent unilateral law, incompatible with the aims of the Community cannot prevail’

C-6/64, (1964) CMLR 425, [1964] ECR 585, R-6/64, [1964] EUECJ R-6/64, [1964] EUECJ C-6/64
Bailii, Bailii
European
Citing:
Order – Costa v ENEL (Order) ECJ 3-Jun-1964
. .

Cited by:
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 – 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: 31 October 2021; Ref: scu.214025

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 of unlawful killing. A specialist senior caseworker in the CPS subsequently took a decision not to prosecute any of the officers of any offence arising out of the death, in particular unlawful act manslaughter, on the basis that he was not satisfied that the available evidence would provide a realistic prospect of conviction.
Held: The Director of Public Prosecutions is answerable to the Attorney General and to no one else. While the power of judicial review is to be sparingly exercised, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.

Lord Bingham of Cornhill LCJ said: ‘Authority makes clear that a decision by the Director not to prosecute is susceptible to judicial review . . But, as the decided cases also make clear, the power of review is one to be sparingly exercised. The reasons for this are clear. The primary decision to prosecute or not to prosecute is entrusted by Parliament to the Director as head of an independent, professional prosecuting service, answerable to the Attorney General in his role as guardian of the public interest, and to no-one else. It makes no difference that in practice the decision will ordinarily be taken by a senior member of the CPS, as it was here, and not by the Director personally. In any borderline case the decision may be one of acute difficulty, since while a defendant whom a jury would be likely to convict should properly be brought to justice and tried, a defendant whom a jury would be likely to acquit should not be subjected to the trauma inherent in a criminal trial. If, in a case such as the present, the Director’s provisional decision is not to prosecute, that decision will be subject to review by Senior Treasury Counsel who will exercise an independent professional judgment. The Director and his officials (and Senior Treasury Counsel when consulted) will bring to their task of deciding whether to prosecute an experience and expertise which most courts called upon to review their decisions could not match. In most cases the decision will turn not on an analysis of the relevant legal principles but on the exercise of an informed judgment of how a case against a particular defendant, if brought, would be likely to fare in the context of a criminal trial before (in a serious case such as this) a jury. This exercise of judgment involves an assessment of the strength, by the end of the trial, of the evidence against the defendant and of the likely defences. It will often be impossible to stigmatise a judgment on such matters as wrong even if one disagrees with it. So the courts will not easily find that a decision not to prosecute is bad in law, on which basis alone the court is entitled to interfere. At the same time, the standard of review should not be set too high, since judicial review is the only means by which the citizen can seek redress against a decision not to prosecute and if the test were too exacting an effective remedy would be denied.’

Lord Bingham of Cornhill LCJ, Morison J
[2000] EWHC Admin 342, [2001] 1 QB 330, [2000] Inquest LR 133, [2000] Po LR 172, [2001] HRLR 3, [2000] 3 WLR 463, [2000] EWHC 562 (QB), [2001] QB 330
Bailii, Bailii
England and Wales
Citing:
Cited – Regina v Director of Public Prosecutions, ex parte C QBD 1995
The plaintiff sought judicial review of the DPP’s decision not to prosecute a husband suspected of buggery.
Held: The application succeeded. The Respondent had failed to consider the criteria required by the Code. However, the power to review . .

Cited by:
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 – 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 – Morrison v The Independent Police Complaints Commission and Others Admn 26-Oct-2009
The claimant made a complaint of a serious assault by the police, by the use of a Taser. The defendant had referred the complaint to the IPCC, who said that they should investigate it themselves. The claimant said that to accord with his human . .
Cited – Bryant and Others, Regina (on The Application of) v The Commissioner of Police of The Metropolis Admn 23-May-2011
Several claimants sought leave to bring judicial review of decisions taken by the defendant in the investigation of suggestions that their telephone answering systems had been intercepted by people working for the News of the World. They said that . .
Cited – Da Silva, Regina (on the Application of) v Director of Public Prosecutions and Another Admn 14-Dec-2006
An innocent bystander had been shot dead by police mistaking him for a suicide bomber. The claimant, a cousin, challenged decisions not to prosecute any officer for murder or manslaughter or any other criminal offence.
Held: Review was . .
Cited – NXB v Crown Prosecution Service QBD 12-Mar-2015
The claimant, saying that she had been abused as a child by another, sought damages alleging breach of her human rights after the defendant failed to prosecute her attacker: ‘it is the Claimant’s case that the CPS made a series of rushed, . .
Cited – F, Regina (on The Application of) v The Director of Public Prosecutions and Another Admn 24-Apr-2013
Application for judicial review of the refusal of the Director of Public Prosecutions to initiate a prosecution for rape and/or sexual assault of the claimant by her former partner. The claimant said that she had initially consented to sex with her . .
Cited – Loughlin, Re Application for Judicial Review SC 18-Oct-2017
The court was asked as to the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act . .

Lists of cited by and citing cases may be incomplete.

Crime, Constitutional, Police, Judicial Review

Leading Case

Updated: 31 October 2021; Ref: scu.135939

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. The Society sought to challenge the decision by judicial review.
Held: At common law taxes exacted ultra vires were recoverable as of right, without the need to invoke a mistake of law by the payer. ‘The justice underlying Woolwich’s submission is, I consider, plain to see. Take the present case. The revenue has made an unlawful demand for tax. The taxpayer is convinced that the demand is unlawful, and has to decide what to do. It is faced with the revenue, armed with the coercive power of the state, including what is in practice a power to charge interest which is penal in its effect. In addition, being a reputable society which alone among many building societies is challenging the lawfulness of the demand, it understandably fears damage to its reputation if it does not pay. So it decides to pay first, asserting that it will challenge the lawfulness of the demand in litigation. Now, Woolwich having won that litigation, the revenue asserts that it was never under any obligation to repay the money, and that it in fact repaid it only as a matter of grace. There being no applicable statute to regulate the position, the revenue has to maintain this position at common law. Stated in this stark form, the revenue’s position appears to me, as a matter of common justice, to be unsustainable; and the injustice is rendered worse by the fact that it involves, as Nolan J. pointed out [1989] 1 W.L.R. 137, 140, the revenue having the benefit of a massive interest-free loan as the fruit of its unlawful action. I turn then from the particular to the general. Take any tax or duty paid by the citizen pursuant to an unlawful demand. Common justice seems to require that tax be repaid, unless special circumstances or some principle of policy require otherwise; prima facie, the taxpayer should be entitled to repayment as of right.’ and ‘the retention by the state of taxes unlawfully exacted is particularly obnoxious, because it is one of the most fundamental principles of our law – enshrined in a famous constitutional document, the Bill of Rights 1688 – that taxes should not be levied without the authority of Parliament; and full effect can only be given to that principle if the return of taxes exacted under an unlawful demand can be enforced as a matter of right. The second is that, when the revenue makes a demand for tax, that demand is implicitly backed by the coercive powers of the state and may well entail (as in the present case) unpleasant economic and social consequences if the taxpayer does not pay. In any event, it seems strange to penalise the good citizen, whose natural instinct is to trust the revenue and pay taxes when they are demanded of him.’
Lord Slynn observed: ‘I do not consider that the fact that Parliament has legislated extensively in this area means that no principle of recovery at common law can or should at this stage of the development of the law be found to exist. If the principle does exist that tax paid on a demand from the Crown when the tax was the subject of an ultra vires demand can be recovered as money had and received then, in my view, it is for the courts to declare it. In so doing they do not usurp the legislative function. I regard the proper approach as the converse. If the legislature finds that limitations on the common law principle are needed for reasons of policy or good administration then they can be adopted by legislation . .’
Lord Goff considered whether, by changing the common law judges would be overstepping the boundary which separates legitimate development of the law from judicial legislation said: ‘I feel bound however to say that, although I am well aware of the existence of the boundary, I am never quite sure where to find it. Its position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn as some of our mentors would wish, I cannot help feeling that a number of leading cases in your Lordships’ House would never have been decided the way they were.’
HL The English law of restitution has set its face against the development of any general principle, such as is known to civil law systems, of a condictio indebiti, an action for the recovery of money on the ground that it was not due. Lord Goff of Chieveley said: ‘To the simple call of justice, there are a number of possible objections. The first is to be found in the structure of our law of restitution, as it developed during the 19th and early 20th centuries. That law might have developed so as to recognise a condictio indebiti – an action for the recovery of money on the ground that it was not due. But it did not do so. Instead, as we have seen, there developed common law actions for the recovery of money paid under a mistake of fact, and under certain forms of compulsion.’

Lord Goff of Chieveley, Lord Browne-Wilkinson, Lord Slynn of Hadley; Lord Keith of Kinkel and Lord Jauncey of Tullichettle dissenting
[1993] AC 70, [1992] 3 All ER 737, (1992) 3 WLR 366, [1992] UKHL TC – 65 – 265, (1993) 5 Admin LR 265, [1992] STC 657
Bailii
Taxes Management Act 1970 33, Bill of Rights 1688, Income Tax (Building Societies) Regulations 1986
England and Wales
Citing:
See Also – Regina v Inland Revenue Commissioners, Ex parte Woolwich Equitable Building Society HL 25-Oct-1990
The society challenged the validity of transitional provisions in the 1986 regulations on the ground that they were ultra vires. The House considered the specific presumption against double taxation, and also a power in general terms to make . .
Cited – Bilbie v Lumley and Others 28-Jun-1802
Contract Not Set Aside for Mistake as to Law
An underwriter paid a claim under a policy which he was entitled in law to repudiate for non-disclosure. Although he knew the relevant facts, he was not aware of their legal significance. He claimed back the money he had paid.
Held: A contract . .
Cited – Maskell v Horner CA 1915
Money paid as a result of actual or threatened seizure of a person’s goods, is recoverable where there has been an error, even if it was one of law. . .

Cited by:
Cited – Inland Revenue and Another v Deutsche Morgan Grenfell Group Plc CA 4-Feb-2005
The company sought repayment of excess advance corporation tax payments made under a mistake of law. The question was the extent of the effect of the ruling in Klienwort Benson, in particular whether it covered sums paid as taxation, and how the law . .
See Also – Regina v Inland Revenue Commissioners, Ex parte Woolwich Equitable Building Society HL 25-Oct-1990
The society challenged the validity of transitional provisions in the 1986 regulations on the ground that they were ultra vires. The House considered the specific presumption against double taxation, and also a power in general terms to make . .
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 – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
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 – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – 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 – 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 – Test Claimants In The Franked Investment Income Group Litigation v Inland Revenue SC 23-May-2012
The European Court had found the UK to have unlawfully treated differently payment of franked dividends between subsidiaries of UK companies according to whether all the UK subsidiaries were themselves UK based, thus prejudicing European . .
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Marine Trade Sa v Pioneer Freight Futures Co Ltd Bvi and Another ComC 29-Oct-2009
The parties stood to make substantial losses against each other under contracts for differences after the dramatic fall in the freight market in the financial turmoil of late 2008. . .
Cited – Revenue and Customs v The Investment Trust Companies SC 11-Apr-2017
Certain investment trust companies (ITCs) sought refunds of VAT paid on the supply of investment management services. EU law however clarified that they were not due. Refunds were restricted by the Commissioners both as to the amounts and limitation . .
Cited – Littlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .

Lists of cited by and citing cases may be incomplete.

Taxes Management, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.223218

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 sought against the Secretary of State to restrain enforcement of that law pending a reference. The House considered how the guidelines for the exercise of the court’s jurisdiction to grant interim injunctions laid down in American Cyanamid should be applied where there was doubt as to the adequacy of any remedy in damages to either party, and where a reference to the European Court was being made which involved the effect of European law on a national law.
Held: Where the validity of subsidiary legislation was challenged, for the court to require the infringing national rule actually to have been set aside before relief could be given by the court, would create the risk of the breach of Community law going uncompensated.
The doctrine of the supremacy of Community law restricts the absolute authority of Parliament to legislate as it wants.
Lord Goff discussed the argument that because a challenge was being made to the validity of a United Kingdom national law, the test for an interim junction was no longer ‘serious case to be tried’, but ‘strong prima facie case’. He summarised the position:- ‘I myself am of the opinion that in these cases, as in others, the discretion conferred upon the court cannot be fettered by a rule; I respectfully doubt whether there is any rule that, in cases such as these, a party challenging the validity of the law must – to resist an application for an interim injunction against him, or to obtain an interim injunction restraining the enforcement of the law – show a strong prima facie case that the law is invalid. It is impossible to foresee what cases may yet come before the courts; I cannot dismiss from my mind the possibility (no doubt remote) that such a party may suffer such serious and irreparable harm in the event of the law being enforced against him that it may be just or convenient to restrain its enforcement by an interim injunction even though so heavy a burden has not been discharged by him. In the end, the matter is one for the discretion of the court, taking into account all the circumstances of the case. Even so, the court should not restrain a public authority by interim injunction from enforcing an apparently authentic law unless it is satisfied, having regard to all the circumstances, that the challenge to the validity of the law is, prima facie, so firmly based as to justify so exceptional a course being taken.’ He analysed the arguments and concluded:- ‘As to the final outcome on these issues after consideration by the court, your Lordships can of course express no opinion; but these two points alone led me to conclude that the applicants’ challenge is, prima facie, a strong one.’

Lord Bridge of Harwich, Lord Goff, Lord Brandon, Lord Oliver, Lord Jauncey
[1991] 1 AC 603, [1990] UKHL 13, [1990] 3 CMLR 375, [1991] 1 All ER 70, (1991) 3 Admin LR 333, [1990] 3 WLR 818, [1991] 1 Lloyd’s Rep 10
Bailii
England and Wales
Citing:
Referred back 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 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 . .
Considered – American Cyanamid Co v Ethicon Ltd HL 5-Feb-1975
Interim Injunctions in Patents Cases
The plaintiffs brought proceedings for infringement of their patent. The proceedings were defended. The plaintiffs obtained an interim injunction to prevent the defendants infringing their patent, but they now appealed its discharge by the Court of . .
See Also – Regina v Secretary of State for Transport ex parte Factortame Ltd HL 26-Jul-1990
(Interim Relief Order) . .

Cited by:
Cited – Regina v Secretary of State for Trade and Industry Ex Parte Trades Union Congress CA 17-Oct-2000
Where a court referred an issue to the European Court, it was for that court in its discretion to decide whether interim relief might be granted, and an appellate court should not normally interfere in that exercise. The considerations for such a . .
Referred back to – 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 . .
Cited – Regina v Searby and Another CACD 7-Jul-2003
The defendant had been accused of storing unlicensed pesticides. He sought to argue that the European Regulations had been implemented in the UK in an unduly restrictive form. He entered a plea of guilty on a ruling that it was not open to him to . .
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 – International Transport Workers’ Federation and Another v Viking Line Abp and Another CA 3-Nov-2005
An order had been made restraining the defendant trades unions from taking industrial action. The unions said the UK court had no jurisdiction.
Held: ‘It is at first sight surprising that the English Commercial Court should be the forum in . .
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 . .
Cited – National Commercial Bank Jamaica Ltd v Olint Corp Ltd (Jamaica) PC 28-Apr-2009
Jamaica – The customer appealed against refusal of an order requiring its bank not to close the customer accounts after the customer had been accused of fraud. There was no evidence that the account was being used unlawfully.
Held: In the . .
Cited – Faisaltex Ltd and Others v Lancashire Constabulary and Another QBD 24-Jul-2009
The claimants wished to claim damages saying that in executing a search warrant, the defendant had made excessive seizures of material. The claimants sought inspection by independent counsel of the materials seized to establish this in a manner . .
Cited – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government Admn 16-Dec-2010
Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was . .
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 – 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 – Hussain, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 21-May-2020
No interim relief for Mosque Services
The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Leading Case

Updated: 31 October 2021; Ref: scu.183201

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 refused to say whether any advice had been taken. The respondent now appealed a decision by the Commissioner that it should disclose whether in fact advice had been taken.
Held: There had been a convention against the publication of law officer’s advice. The Tribunal had misdirected itself in considering how to approach the strength of the public interest in maintaining the exemption from disclosure of the information whether the Law Officers have advised or not. In particular it had not recognised the weight intended to be given by the Act to the protection of legal professional privilege, nor the expert advice given to the court. By seeking to modify the convention rather than make it amenable to being out-weighed by weightier considerations, and
‘Where Ministers had disclosed without the prior consent of the Law Officers this was considered to be a breach rather than an application of the convention and a matter for reprimand.’ It was not clear what would have been the Tribunal’s conclusion if properly directed.
‘ The Law Officers’ Convention will now operate subject to the principles of the FOIA, which means that neither the government department that may have sought or received the advice or the Law Officers that gave it will any longer make final or binding decisions on what, whether and when information may be disclosed.’ Despite the long time taken by the case it should remitted to the tribunal.

Blake J
[2009] EWHC 1811 (Admin), [2010] 2 WLR 931, [2010] 2 All ER 55, [2010] 1 QB 563, [2009] ACD 73
Bailii
Freedom of Information Act 2000 35(1)(c)
England and Wales
Citing:
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Export Credits Guarantee Department v Friends of the Earth Admn 17-Mar-2008
The court considered the balancing of interests when making a disclosure order under the 2004 Regulations.
Mitting J said: ‘the impression given . . is that the Tribunal did set up a hurdle or threshold of proof of actual particular harm which . .
Cited – Department for Business Enterprise and Regulatory Reform v O’Brien and Information Commissioner QBD 10-Feb-2009
The court considered a claim for legal professional privilege by the Department.
Held: The Tribunal had properly directed itself that there was a strong public interest in non-disclosure inbuilt into legal professional privilege but: ‘In the . .
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 . .

Lists of cited by and citing cases may be incomplete.

Information, Constitutional

Updated: 31 October 2021; Ref: scu.349093

McFarlane v Relate Avon Ltd: CA 29 Apr 2010

The employee renewed his application for leave to appeal against refusal of his discrimination claim on the grounds of religious belief. He worked as a relationship sex therapist, and had signed up to the employer’s equal opportunities policy, but felt that his Christian beliefs required him not to work to assist same sex couples where sexual issues arose.
Held: Leave was refused. Ladele was not decided per incuriam, and was not inconsistent with the decision in Williamson. The court commented on a statement submitted by a former Archbishop in support of the appellant, saying that it misunderstood the position of judges and the way that discrimination law works: ‘In a free constitution such as ours there is an important distinction to be drawn between the law’s protection of the right to hold and express a belief and the law’s protection of that belief’s substance or content. The common law and ECHR Article 9 offer vigorous protection of the Christian’s right (and every other person’s right) to hold and express his or her beliefs. And so they should. By contrast they do not, and should not, offer any protection whatever of the substance or content of those beliefs on the ground only that they are based on religious precepts. These are twin conditions of a free society.’
Laws LJ set out the relationship between the law and religious beliefs: ‘The general law may of course protect a particular social or moral position which is espoused by Christianity, not because of its religious imprimatur, but on the footing that in reason its merits commend themselves. So it is with core provisions of the criminal law: the prohibition of violence and dishonesty. The Judaeo-Christian tradition, stretching over many centuries, has no doubt exerted a profound influence upon the judgment of lawmakers as to the objective merits of this or that social policy. And the liturgy and practice of the established Church are to some extent prescribed by law. But the conferment of any legal protection or preference upon a particular substantive moral position on the ground only that it is espoused by the adherents of a particular faith, however long its tradition, however rich its culture, is deeply unprincipled. It imposes compulsory law, not to advance the general good on objective grounds, but to give effect to the force of subjective opinion. This must be so, since in the eye of everyone save the believer religious faith is necessarily subjective, being incommunicable by any kind of proof or evidence. It may of course be true; but the ascertainment of such a truth lies beyond the means by which laws are made in a reasonable society. Therefore it lies only in the heart of the believer, who is alone bound by it. No one else is or can be so bound, unless by his own free choice he accepts its claims.
The promulgation of law for the protection of a position held purely on religious grounds cannot therefore be justified. It is irrational, as preferring the subjective over the objective. But it is also divisive, capricious and arbitrary. We do not live in a society where all the people share uniform religious beliefs. The precepts of any one religion – any belief system – cannot, by force of their religious origins, sound any louder in the general law than the precepts of any other. If they did, those out in the cold would be less than citizens; and our constitution would be on the way to a theocracy, which is of necessity autocratic. The law of a theocracy is dictated without option to the people, not made by their judges and governments. The individual conscience is free to accept such dictated law; but the State, if its people are to be free, has the burdensome duty of thinking for itself.
So it is that the law must firmly safeguard the right to hold and express religious belief; equally firmly, it must eschew any protection of such a belief’s content in the name only of its religious credentials. Both principles are necessary conditions of a free and rational regime.’

Laws LJ
[2010] EWCA Civ B1, [2010] EWCA Civ 880, [2010] IRLR 872, 29 BHRC 249
Bailii, Bailii
Employment Equality (Religion or Belief) Regulations 2003 3(1)
England and Wales
Citing:
Cited – London Borough of Islington v Ladele EAT 19-Dec-2008
EAT RELIGION OR BELIEF DISCRIMINATION
The claimant was a Registrar who, amongst other things, registered marriages. When the Civil Partnerships Act came into force, she refused to participate in registering . .
Appeal from – McFarlane v Relate Avon Ltd EAT 30-Nov-2009
EAT RELIGION OR BELIEF DISCRIMINATION
UNFAIR DISMISSAL – Reason for dismissal
Christian counsellor dismissed by Relate for failing to give an unequivocal commitment to counsel same-sex couples.
Cited – Ladele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
Cited – Copsey v WWB Devon Clays Ltd CA 25-Jul-2005
The claimant said that his employer had failed to respect his right to express his beliefs by obliging him, though a Christian, to work on Sundays.
Held: The appeal failed. ‘The Commission’s position on Article 9, as I understand it, is that, . .
Cited – Regina (Williamson and Others) v Secretary of State for Education and Employment CA 12-Dec-2002
The claimants sought a declaration that the restriction on the infliction of corporal punishment in schools infringed their human right of freedom of religion. The schools concerned were Christian schools who believed that moderate corporal . .

Cited by:
Cited – Johns and Another, Regina (on The Application of) v Derby City Council and Another Admn 28-Feb-2011
The claimants had acted as foster carers for several years, but challenged a potential decision to discontinue that when, as committed Christians, they refused to sign to agree to treat without differentiation any child brought to them who might be . .
Cited – Hall and Another v Bull and Another Misc 4-Jan-2011
(Bristol County Court) The claimants, homosexual partners in a civil partnership, sought damages after being refused a stay at the bed and breakfast hotel operated by the defendants, who said that this was their home, and that they were committed . .
Cited – Bull and Bull v Hall and Preddy CA 10-Feb-2012
The appellants owned a guesthouse. They appealed from being found in breach of the Regulations. They had declined to honour a booking by the respondents of a room upon learning that they were a homosexual couple. The appellants had said that they . .
Cited – National Secular Society and Another, Regina (on The Application of) v Bideford Town Council Admn 10-Feb-2012
The claimant challenged the placing of a prayer on the agenda of the respondent’s meetings.
Held: The claim succeeded. The placing of such elements on the Agenda was outside the powers given to the Council, and the action was ultra vires: . .
At CA – Eweida And Others v The United Kingdom ECHR 15-Jan-2013
Eweida_ukECHR2013
The named claimant had been employed by British Airways. She was a committed Christian and wished to wear a small crucifix on a chain around her neck. This breached the then dress code and she was dismissed. Her appeals had failed. Other claimants . .

Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Constitutional

Updated: 31 October 2021; Ref: scu.408780

Barclay, and Another, Regina (on The Application of) v Secretary of State for Justice and Lord Chancellor and Others: Admn 9 May 2013

The applicants had successfully challenged some provisions in the constitution of Sark, and amending legislation had been brought in, but they now complained of the new provisions.
Held: Where a challenge was intended to the advice given by UK authorities to those proposing new legislation, and a remedy was available within the courts of the Bailiwick of Guersey and Sark, then it was preferable that any challenge should be in those courts and not the High Court in England and Wales. However the High court having already had involvememt in the matters, it should not decline jurisdiction.
The new provisions allowed the possbility that the Chief Pleas, the main court in Sark, could itself and arbitrarily alter the remuneration provisions of the Seneschal of Sark, its chief judge. That provision was an infringement of Article 6 in leaving him insufficiently independent. An objective outsider would see the Seneschal as vulnerable to pressure from the members of the Chief Pleas not to make decisions which would be unpopular with them.
Sir John Thomas P QBD, Burnett JJ
[2013] EWHC 1183 (Admin), [2013] WLR(D) 290, [2014] 1 WLR 415
Bailii, WLRD
European Convention on Human Rights 6, Human Rights (Bailiwick of Guernsey) Law 2000
Citing:
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 by:
Appeal from – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.503511

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.
[1937] UKPC 61, [1937] AC 898, 1937) 3 All ER 324
Bailii
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.426121

Observer Publications Limited v Campbell ‘Mickey’ Matthew The Commissioner of Police and The Attorney General: PC 19 Mar 2001

PC (Antigua and Barbuda) The claimant complained of the delay by the respondents in processing their request for a licence to run a radio station. It appealed refusal of constitutional redress and thta its right of free speech had been infringed. The only existing radio stations were a state owned on and one owned by the prime minister’s family.
Lord Steyn, Lord Cooke of Thorndon, Lord Scott of Foscote, Sir Patrick Russell, Sir Murray Stuart-Smith
[2001] UKPC 11, 10 BHRC 252
Bailii, PC, PC
Commonwealth
Citing:
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 – Cable and Wireless (Dominica) Limited v Marpin Telecoms and Broadcasting Company Limited PC 30-Oct-2000
(Dominica) The importance of telecommunications in today’s society meant that it would be an infringement of the right of freedom of expression guaranteed under the constitution to grant a monopoly right to provide such services within a nation. . .
Cited – Benjamin, Vanderpool and Gumbs v The Minister of Information and Broadcasting and The Attorney General for Anguilla PC 14-Feb-2001
PC (Anguilla) A first non-religious radio station had been formed, but came to include much criticism of the government. One programme was suspended by the government. The programme makers complained that this . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.179207

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 granted immigration bail with conditions, but these conditions were varied on the order of the Respondent. The Tribunal had not complied with the necessary requirements under the 1971 Act.
Held: The appeal was allowed, and the order placing the claimant on bail under conditions was restored.
A court order must be obeyed unless and until it has been set aside or varied by the court or unusually by legislation. This applies to court orders whether they are valid or invalid, regular or irregular. Court orders should not be ignored by anyone, including the government.
The Court of Appeal did not apply that decided, but on the basis of unlawful administrative acts and decisions, held that the Bail Order had no legal effect, and the Secretary need not comply with it. Even in the context of administrative acts and decisions, it is an over-simplification to say that an unlawful act has no legal effect at all. There are many circumstances in which an unlawful administrative act has legal consequences. Here the court was concerned with not an unlawful administrative act but with an order of a tribunal. Different issues principles applied.
The allegation that the Bail Order was invalid was not a relevant defence to Mr Majera’s application for judicial review. With no other basis for the Court of Appeal’s reversal of the decision of the Upper Tribunal, and with no other grounds, the appeal succeeded.
Even had any invalidity of the Bail Order had been relevant, the SS had opportunity to challenge the Bail Order if she thought it was defective: she might have raised it with the First-tier Tribunal, or the Upper Tribunal, or sought judicial review.
Lord Reed, President, Lord Sales, Lord Leggatt, Lord Burrows, Lady Rose
[2021] UKSC 46, UKSC 2020/0008
Bailii, Bailii Press Summary, Bailii Issues and Facts, SC, SC Summary, SC Summary Video, SC 2021 May 10 am Video, SC 2021 May 10 pm Video
Immigration Act 1971
England and Wales
Citing:
Cited – Gedi, Regina (on The Application of) v Secretary of State for Home Department CA 17-May-2016
The court considered the power of the Secretary of State for the Home Department and her immigration officials to impose conditions of curfew and electronic monitoring on those who have been released from immigration detention pending the conclusion . .
At UTIAC – Majera, Regina (on The Application of) v Secretary of State for The Home Department (Bail Conditions: Law and Practice) UTIAC 13-Mar-2017
(1) A defect in framing the primary condition of bail granted by the First-tier Tribunal under paragraph 22 of Schedule 2 to the Immigration Act 1971 does not render the grant of bail void. There has, rather, been a valid but defective grant of . .
Cited – The Secretary of State for The Home Department v SM (Rwanda) CA 11-Dec-2018
. .
Cited – 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 – Regina v Soneji and Bullen HL 21-Jul-2005
The defendants had had confiscation orders made against them. They had appealed on the basis that the orders were made more than six months after sentence. The prosecutor now appealed saying that the fact that the order were not timely did not . .
Cited – 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 – Durayappah of Chundikuly, Mayor of Jaffna v Fernando and Others PC 15-Dec-1966
(Ceylon) . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
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 – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Percy and Another v Hall and Others CA 10-May-1996
The claimants, demonstrators at Menwith Hill Station, asserted that repeated arrests for trespass were made under unlawful byelaws. Iparticular they said that the restrictions on trespass were unlawful, since the area was not clearly defined. . .
Cited – Mossell (Jamaica) Ltd (T/A Digicel) v Office of Utilities Regulations and Others PC 21-Jan-2010
(Jamaica) Lord Phillips, after referring to the speech of Lord Irvine in Boddington, rejected the submission that the principle in Boddington applies only within criminal prosecutions, adding: ‘What it all comes to is this. Subordinate legislation, . .
Cited – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
Cited – Fishermen and Friends of The Sea v The Minister of Planning, Housing and The Environment PC 27-Nov-2017
(Court of Appeal of Trinidad and Tobago) . .
Cited – Chuck v Cremer 24-Jul-1846
The plaintiff’s solicitor obtained an attachment against the defendant in default of a pleaded defence, disregarding a court order extending the period for filing the defence, which he considered to be a nullity. The order in question had been . .
Cited – Kruse v Johnson QBD 16-May-1898
The validity of a by-law prohibiting the playing of music in a public place within fifty yards of any dwelling after being requested by a constable or resident of that dwelling to desist was upheld. A private citizen taxed with a criminal charge . .
Cited – Hadkinson v Hadkinson CA 1952
The courts adopt an approach similar to that of the United States courts where there has been a significant contempt on the part of a party to litigation. Denning LJ said: ‘Those cases seem to me to point the way to the modern rule. It is a strong . .
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 – London and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
Cited – 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 – 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 – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down 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 – Isaacs v Robertson PC 13-Jun-1984
(St Vincent and The Grenadines) Where the point at issue before the Board was as to a point of procedure with no direct comparable provision in UK law, the Board of the Privy Council should be reluctant to depart from the interpretation set down by . .
Cited – Johnson v Walton 1990
There was a continuing obligation to obey a court order until it was discharged. . .
Cited – Crown Prosecution Service v T Admn 5-Apr-2006
The prosecutor appealed after the district judge had at first granted an anti-social behaviour order, but had later thought it too wide and that it was unenforceable and void.
Held: the district judge had exceeded his powers. There were . .
Cited – B v B (Residence: Imposition of conditions) CA 28-May-2004
The court was asked whether it had jurisdiction to hear applications with regard to a child removed from Scotland. The father lived in Scotland, and the mother and child in England. The child had been habitually resident in Scotland and removed to . .
Cited – Regina v Central London County Court and Managers of Gordon Hospital ex parte AX London CA 15-Mar-1999
An application to the court to exclude a person as a patient’s relative under the Act, could be made ex parte in appropriate situations, though it was preferable to take that application to an inter partes determination before other procedures . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .
Cited – KW and Others v Rochdale Metropolitan Borough Council CA 20-Oct-2015
The court heard an appeal as to care directions given under the 2005 Act, and in particular whether they infringed the patient’s human rights. The judge of the Family Division took the view that a decision of the Court of Appeal was ultra vires.
Cited – Kirby, Regina v CACD 21-Feb-2019
Breach of non-molestation order that was subsequently set aside because of a procedural irregularity.
Held: The appeal failed. Singh LJ based the decision on ‘a long-standing principle of our law that there is an obligation to obey an . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 October 2021; Ref: scu.668647

Patriciello (Privileges And Immunities): ECJ 9 Jun 2011

ECJ Member of the European Parliament – Article 8 of the Protocol on the Privileges and Immunities – Scope of the concept of’opinion expressed in the exercise of parliamentary duties’ – Criminal proceedings for the crime of false accusation – Immunity material – a behavior MEP outside the precincts of Parliament – link organic.
While Article 8 is intended to apply to statements made by MEPs within the very precincts of the European Parliament, it is not impossible that a statement made by an MEP outside the precincts may amount to an opinion expressed in the performance of their duties within Art 8 because this depends on the character and content of the opinion rather than the place where it was made. However there must be a ‘direct and obvious connection between the opinion expressed and the parliamentary duties and a statement made outside the precincts of the Parliament: ‘does not constitute an opinion expressed in the performance of his parliamentary duties covered by the immunity afforded by that provision unless that statement amounts to a subjective appraisal having a direct, obvious connection with the performance of those duties . .’
[2012] 1 CMLR 11, C-163/10, [2011] EUECJ C-163/10
Bailii
European
Cited by:
Cited – Barron and Others v Collins QBD 16-May-2016
The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.440760

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 include a power to ban smoking on all carriages.
Held: A defendant may challenge the validity of subordinate legislation in criminal proceedings whether or not the bye-law was defective on face of it.
However, a ban on smoking on all railway carriages is a form of regulating the use of the railway, and his defence failed. ‘In approaching the issue of statutory construction the courts proceed from a strong appreciation that ours is a country subject to the rule of law. This means that it is well recognised to be important for the maintenance of the rule of law and the preservation of liberty that individuals affected by legal measures promulgated by executive public bodies should have a fair opportunity to challenge these measures and to vindicate their rights in court proceedings. There is a strong presumption that Parliament will not legislate to prevent individuals from doing so’.
Lord Irvine of Lairg LC said: ‘Subordinate legislation, or an administrative act, is sometimes said to be presumed lawful until it has been pronounced to be unlawful. This does not, however, entail that such legislation or act is valid until quashed prospectively. That would be a conclusion inconsistent with the authorities . . In my judgment, the true effect of the presumption is that the legislation or act which is impugned is presumed to be good until pronounced to be unlawful, but is then recognized as never having had any legal effect at all.’
Lord Steyn said: ‘it has been argued that unlawful administrative acts are void in law. But they clearly exist in fact and they often appear to be valid; and those unaware of their invalidity may take decisions and act on the assumption that these acts are valid. When this happens the validity of these later acts depends upon the legal powers of the second actor. The crucial issue to be determined is whether the second actor has legal power to act validly notwithstanding the invalidity of the first act. And it is determinedly an analysis of the law against the background of the familiar proposition that an unlawful act is void.’
Lord Browne-Wilkinson dissenting said: ‘I am far from satisfied that an ultra vires act is incapable of having any legal consequence during the period between the doing of that act and the recognition of its invalidity by the court. During that period people will have regulated their lives on the basis that the act is valid. The subsequent recognition of its validity cannot rewrite history as to all the other matters done in the meantime in reliance on its validity.’
Lord Irvine of Lairg LC , Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Steyn, Lord Hoffmann
Times 03-Apr-1998, [1998] UKHL 13, [1999] 2 AC 143, [1998] 2 All ER 203, [1998] 2 WLR 639
House of Lords, Bailii
Transport Act 1962 67
England and Wales
Citing:
Appeal from – Connex South Central Limited v Boddington CA 9-Mar-1998
The appellant was unhappy with the plaintiff’s policy toward smokers. He had been made subject to an injunction requiring him not to smoke cigarettes on the plaintiff’s trains in ‘no smoking’ facilities. He had sought to argue that this did not . .
Cited – Director of Public Prosecutions v Head HL 1958
The defendant had been convicted under the Act, of having carnal knowledge of ‘a woman . . under care or treatment in an institution or certified house or approved home, or whilst placed out on licence therefrom.’ She was at an institution for . .
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 Inland Revenue Commissioners, Ex parte T C Coombs and Co HL 1991
The House heard an application judicially to review a notice served by an inspector of taxes under section 20 of the 1970 Act, requiring T C Coombs and Co to deliver or make available for inspection documents in their possession relevant to the tax . .
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 – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Kirklees Metropolitan Borough Council v Wickes Building Supplies Ltd HL 1992
A public authority is not required as a rule to give a cross undertaking in damages in a law enforcement action. As to the legal status of the statutory instrument in question, the courts could ‘declare it to be invalid’ if satisfied that the . .
Cited – Wandsworth London Borough Council v Winder HL 1985
Rent demands were made by a local authority landlord on one of its tenants. The local authority, using its powers under the Act, resolved to increase rents generally. The tenant refused to pay the increased element of the rent. He argued that the . .
Cited – Regina v Reading Crown Court, Ex parte Hutchinson QBD 1988
A defendant to a charge brought under a byelaw is entitled to raise the question of the validity of that byelaw in criminal proceedings before magistrates or the Crown Court, by way of defence. There was nothing in the statutory basis of the . .
Overruled – Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
Cited – Pyx Granite Ltd v Ministry of Housing and Local Government HL 1959
There is a strong presumption that Parliament will not legislate to prevent individuals affected by legal measures promulgated by executive public bodies having a fair opportunity to challenge these measures and to vindicate their rights in court . .
Cited – Regina v Wicks HL 21-May-1997
Criminal proceedings, forming part of the general scheme of enforcement of planning control contained in Part VII of the Act, had been taken.
Held: The validity of a planning enforcement notice must be challenged in civil proceedings, not . .
Cited – Quietlynn Ltd v Plymouth City Council QBD 1987
A company operated sex shops in Plymouth under transitional provisions which allowed them to do so until their application for a licence under the scheme introduced by the Act had been ‘determined.’ The local authority refused the application. The . .
Cited – Tarr v Tarr HL 1973
By section 1 of the 1967 Act, the County Court had been given power to regulate the occupation of the property by either spouse. The man challenged an order made at the instance of the woman with whom he had been living as if she was his wife from . .
Cited – Municipal Corporation of the City of Toronto v Virgo PC 1896
A power to regulate does not include a power to prohibit. . .
Cited – Calvin v Carr PC 15-Jan-1979
(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their . .
Cited – Percy and Another v Hall and Others QBD 31-May-1996
There was no wrongful arrest where the bylaw under which it was made was invalid. The question is the belief of the arresting officers. The effect of retrospective legislation is not always fully worked through. English law provides no cause of . .
Cited – O’Reilly v Mackman HL 1982
Remission of Sentence is a Privilege not a Right
The plaintiffs had begun their action, to challenge their loss of remission as prisoners, by means of a writ, rather than by an action for judicial review, and so had sidestepped the requirement for the action to be brought within strict time . .
Cited – 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 – Mercury Communications Ltd v Director General of Telecommunications and Another HL 10-Feb-1995
The Secretary of State’s decision on the grant of a Telecommunications licence was challengeable by Summons and not by Judicial Review. A dispute between Mercury and BT as to charges as set by the Director General is a private not a public dispute. . .
Cited – Roy v Kensington and Chelsea and Westminster Family Practitioner Committee HL 6-Feb-1992
The respondent had withheld part of the plaintiff’s GP payments saying that he had failed to devote himself full time to his practice. The plaintiff sued, and the defendant sought to strike out his application, saying that his application had to be . .
Cited – Chief Adjudication Officer and Another v Foster HL 7-Apr-1993
The Social Security Commissioners have the jurisdiction and power to decide if a Regulation is ultra vires the powers under which it purports to have been made.
Lord Bridge said of the Social Security Commissioners: ‘My conclusion is that the . .
Cited – Eshugbayi Eleko v Office Administering the Government of Nigeria HL 24-Mar-1931
The claimant sought a writ of habeas corpus.
Held: Lord Atkin said that in a habeas corpus case, ‘no member of the executive can interfere with the liberty or property of a British subject except on condition that he can support the legality . .
Cited – Regina v Chief Constable of the Thames Valley Police, Ex parte Cotton CA 1990
The Chief Constable’s power to dispense with a probationer’s services under Condition 7 is only exercisable in cases where the probationer constable’s unfitness does not arise from alleged misconduct, for example where it arises from the constable’s . .

Cited by:
Cited – Regina v Searby and Another CACD 7-Jul-2003
The defendant had been accused of storing unlicensed pesticides. He sought to argue that the European Regulations had been implemented in the UK in an unduly restrictive form. He entered a plea of guilty on a ruling that it was not open to him to . .
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 – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
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 – W, Regina (on the Application Of) v Director of Public Prosecutions Admn 8-Jun-2005
The defendant appealed a conviction for breaching an anti-social behaviour order. The order had prohibited him from committing any criminal act. It was now challenged as being too wide a prohibition.
Held: ‘The defendant had already been . .
Cited – Director of Public Prosecutions v Wood; Director of Public Prosecutions v McGillicuddy Admn 19-Jan-2006
Each defendant sought disclosure of materials concerning the intoximeter instruments, having been charged with driving with excess alcohol. The defendants said that the meters were inaccurate and that the manufacturers were in effect part of the . .
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 – Birmingham City Council v Qasim and Others CA 20-Oct-2009
The council argued that the defendant was not a tenant granted to him as a secure tenancy since he had not been granted the tenancy in accordance with its policies. An employee had manipulated the Council’s system to grant tenancies to bypass the . .
Cited – Valentines Homes and Construction Ltd, Regina (on The Application of) v HM Revenue and Customs CA 31-Mar-2010
The claimant had applied for judicial review of a decision by the defendant to seek to recover a debt from them. The issue had however been settled in the County Court. Costs were ordered against them, and they now appealed. In a small company the . .
Cited – North Somerset District Council v Honda Motor Europe Ltd and Others QBD 2-Jul-2010
Deleayed Rates Claims Service made them Defective
The council claimed that the defendants were liable for business rates. The defendants said that the notices were defective in not having been served ‘as soon as practicable’, and further that they should not be enforced since the delay had created . .
Cited – 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 – Mossell (Jamaica) Ltd (T/A Digicel) v Office of Utilities Regulations and Others PC 21-Jan-2010
(Jamaica) Lord Phillips, after referring to the speech of Lord Irvine in Boddington, rejected the submission that the principle in Boddington applies only within criminal prosecutions, adding: ‘What it all comes to is this. Subordinate legislation, . .
Cited – Shoesmith, Regina (on The Application of) v OFSTED and Others CA 27-May-2011
The claimant appealed against dismissal of her claim. She had been head of Child Services at Haringey. After the notorious violent death of Baby P, the Secretary of State called for an inquiry under the Act. He then removed her as director. She . .
Cited – Westlb Ag London Branch v Pan EAT 19-Jul-2011
EAT PRACTICE AND PROCEDURE – Bias, misconduct and procedural irregularity
The Employment Judge, while rejecting a complaint of bias, ordered that a fresh panel be convened to continue the hearing of a case. . .
Cited – Aylesbury Vale District Council, Regina (on The Application of) v Call A Cab Ltd Admn 12-Nov-2013
The council appealed against dismissal of its prosecution of the respondent, alleging the operation of a private hire vehicle without having a current licence, ‘in a controlled district’. The respondent had denied that the necessary resolution had . .
Cited – Mackaill and Another, Regina (on The Application of) v Independent Police Complaints Commission Admn 6-Oct-2014
The three claimants were police officers. They met a senior MP at Sutton Coldfield. They emerged from the meeting and were said to have made misleading statements as to the content of the meeting. The IPCC referred the matters back to local forces . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.158944

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 students had been revoked with no notice. They now appealed saying that the respondent’s Guidance was unlawful insofar as it purported to alter the effect of the stautory Rules but without parliamentary scrutiny.
Held: The appeals failed: ‘The Immigration Act does not prescribe the method of immigration control to be adopted. It leaves the Secretary of State to do that, subject to her laying before Parliament any rules that she prescribes as to the practice to be followed for regulating entry into and stay in the United Kingdom. Different methods of immigration control may call for more or less elaborate administrative infrastructure. It cannot have been Parliament’s intention that the Secretary of State should be limited to those methods of immigration control which required no other administrative measures apart from the regulation of entry into or stay in the United Kingdom. If the Secretary of State is entitled (as she plainly is) to prescribe and lay before Parliament rules for the grant of leave to enter or remain in the United Kingdom which depend upon the migrant having a suitable sponsor, then she must be also be entitled to take administrative measures for identifying sponsors who are and remain suitable, even if these measures do not themselves fall within section 3(2) of the Act. This right is not of course unlimited. The Secretary of State cannot adopt measures for identifying suitable sponsors which are inconsistent with the Act or the Immigration Rules. Without specific statutory authority, she cannot adopt measures which are coercive; or which infringe the legal rights of others (including their rights under the Human Rights Convention); or which are irrational or unfair or otherwise conflict with the general constraints on administrative action imposed by public law.’
Orse R (New London College Ltd) v Secretary of State for the Home Department (Migrants’ Rights Network intervening)
Lord Hope, Deputy President, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2013] UKSC 51, [2014] Imm AR 151, [2013] PTSR 995, [2014] INLR 66, [2013] WLR(D) 294, [2013] 4 All ER 195, [2013] 1 WLR 2358, UKSC 2012/0060
Bailii, WLRD, Bailii Summary, SC Summary, SC
Immigration Act 1971 1(2)
England and Wales
Citing:
At first instance – New London College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 19-Oct-2010
The claimant sought interim relief in relation to it’s Tier 4 Sponsor Licence (A rating). The Secretary of State through the UK Border Agency had suspended it, jeopardising the business of the claimant, which involved the provision of education to . .
Appeal from – New London College Ltd, Regina (on the application of) v Secretary of State for the Home Department CA 2-Feb-2012
The court was asked whether the removal of a Tier 4 General (Student) Sponsor Licence issued by UKBA which enabled it to issue a visa letter or confirmation of acceptance of studies to non-EEA students lacked the necessary legislative authority . .
Cited – West London Vocational Training College Ltd, Regina (on The Application of) v Secretary of State for The Home Department Admn 16-Jan-2013
. .
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 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 – 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. . .
Cited – Regina v Secretary of State for Health, ex parte C CA 21-Feb-2000
An extra-statutory database maintained by the Secretary of State of the names of people considered to be unsafe to work with children was lawful. Two competing and genuine interests were to be balanced. The right to pursue employment without being . .
Cited – Hooper and Others, Regina (on the Application of) v Secretary of State for Work and Pensions HL 5-May-2005
The House was asked whether the payment of widow’s payment and widowed mother’s allowance to women alone discriminated against men.
Held: The Secretary’s appeal succeded. Section 6 of the 1998 Act permitted the discrimination as an existing . .
Cited – MO (Nigeria) v Secretary of State for Home Department CA 10-Apr-2008
The claimant appealed refusal of his claim of a right to remain in the UK working as a postgraduate doctor. The rules had changed and there were no transtional provisions.
Held: The claim was to be heard under the new provisions despite the . .
Cited – Shrewsbury and Atcham Borough Council and Another v Secretary of State for Communities and Local Government and Another CA 4-Mar-2008
The basis of the Crown’s power to exercise certain administrative powers to carry on the ordinary business of government which are not exercises of the royal prerogative and do not require statutory authority, was the Crown’s status as a common law . .

Cited by:
Cited – Patel and Others v Secretary of State for The Home Department SC 20-Nov-2013
The court was asked as to the respective duties of the Secretary of State and the First-tier Tribunal, on an appeal against refusal of an application to vary leave to enter or remain under the Immigration Act 1971, and more particularly as to the . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.512425

F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry: HL 1975

No Indemnity for misadministration

The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages.
Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant ‘cannot be compelled to give an undertaking but if he will not give it he will not get the injunction.’
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: ‘The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages.’ and ‘The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant’s benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction.’
. . ‘In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects).’
Lord Diplock, Lord Reid, Lord Wilberforce
[1975] AC 295, [1974] 2 All ER 1128, [1974] 3 WLR 104
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2), Monopolies and Mergers Act 1965
England and Wales
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 – Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy QBD 1993
The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where . .
Cited – Smithkline Beecham Plc and others v Apotex Europe Ltd and others PatC 26-Jul-2005
Application was made to join in further parties to support a cross undertaking on being made subject to interim injunctions.
Held: On orders other than asset freezing orders it was not open to the court to impose cross-undertakings against . .
Cited – Smithkline Beecham Plc Glaxosmithkline UK Ltd and Another v Apotex Europe Ltd and others (No 2) CA 23-May-2006
The parties to the action had given cross undertakings to support the grant of an interim injunction. A third party subsequently applied to be joined, and now sought to take advantage of the cross undertakings to claim the losses incurred through . .
Cited – Somerville v Scottish Ministers HL 24-Oct-2007
The claimants complained of their segregation while in prison. Several preliminary questions were to be decided: whether damages might be payable for breach of a Convention Right; wheher the act of a prison governor was the act of the executive; . .
Cited – 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 – The Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.187068

Durayappah of Chundikuly, Mayor of Jaffna v Fernando and Others: PC 15 Dec 1966

(Ceylon)
[1966] UKPC 29, [1967] 2 All ER 152, [1967] 3 WLR 289, [1967] 2 AC 337,
Bailii
England and Wales
Cited by:
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 (or, indeed, anyone else) 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.445113

Edwards and Others v The Attorney General of Canada: PC 18 Oct 1929

(Canada) A constitutional Act act should not be interpreted narrowly or technically. Rights in conventions, treaties and like instruments are interpreted like a ‘living tree capable of growth and expansion within its natural limits.’ (Lord Sankey LC), and ‘Customs are apt to develop into traditions which are stronger than law and remain unchallenged long after the reason for them has disappeared.’
Lord Sankey LC
Appeal No. 121 of 1928, [1930] AC 124, [1929] UKPC 86
Bailii
Cited by:
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.422086

The Earl Of Shrewsbury v Scott And Others: CEC 18 Feb 1860

Judgment affirmed
Pollock CB
[1860] EngR 496, (1859) 6 CB NS 221, (1860) 144 ER 437
Commonlii
England and Wales
Citing:
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 October 2021; Ref: scu.285335

Case XI. 11 H 8 Keyleway, 199 Office, Repugnancy, Faits: 1220

Tenant in tail by kniight’s service dies, his heir under, age ; the donor tenders him marriage ; he refuses, arid marries elsewhere, being still within age ; he dies (having issue) within age in ward ; the issue also dies having issue : the donor shall have the double value for one, and the single value for the other ; for the statute of West. 1, being a special statute concerning wards, is not repealed by West 2, which is another special statute. The words deed and feoffment, in the statute of West. 2 (which enacts that by them a tenant in tail shall not prejudice the issue in tail) are not to be understood of the right of the superior lord. Tenant in tail, the remainder in fee, he cesses for two years; the land shall be recovered against tenant in tail : F. N. B: 20, for this reason, viz. the recovery of the land for the cesser per biennium is given by a special statute.
A special statute does not derogate from a special statute, without express words of abrogation.
[1220] EngR 88, (1220-1623) Jenk 197, (1220) 145 ER 133 (B)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.461000

Case XCI 11 H 6, 32 7 Co 1, Calvin’s Case 11 E 3 Fitz Br 473 24 E 3, 65 Roigne: 1220

Katherine Queen of England, after the death of K. H, 5 married Owen Tudor knight, descended from the royal stem of the pririces of Wales, by whom she had two sons and a claughter ; during their marriage she sued without her husband by the name of Queen of Eriglarid (She was the daughter of (Charles, King of France.)
Resolved by all the judges, that though a Queen marries a private man, she remains Queen, and a person exempt to sue, or be sued as a feme sole ; and that she is a person capable to purchuse land without her husband, with a power to dispose of it.
A private statute was made the 6 H. 6 that it shoukl not be lawful for a Queen Dowager to marry any persori without the King’s licence.
[1220] EngR 82, (1220-1623) Jenk 69, (1220) 145 ER 70 (A)
Commonlii
England and Wales

Updated: 20 October 2021; Ref: scu.460994

Rex v Eliot, Holles and Valentine: 1629

Parliamentary privilege did not protect the maker against seditious comments made in the Chamber of the House.
(1629) 3 St Tr 293
England and Wales
Cited by:
See Also – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.427744

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 the chair by force. All pleaded to the jurisdiction. The plea nihil dicit meant that conviction would be inevitable, but if they defended themselves at all, their contention that Parliament was the only body with jurisdiction over these matters would be totally undermined. Eliot’s self-acknowledged dilemma was that if he did not submit he would incur the censure of the Court, but if he did, his act would be considered ‘a prejudice to posterity’ and ‘a danger to Parliament’. So he would be silent, just because his duty was to Parliament.
Held: Members had no privilege to speak seditiously or behave in a disorderly manner.
(1629) 3 St Tr 294
England and Wales
Citing:
See Also – Rex v Eliot, Holles and Valentine 1629
Parliamentary privilege did not protect the maker against seditious comments made in the Chamber of the House. . .

Cited by:
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 . .
Cited – Kimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .
Cited – 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.
Updated: 20 October 2021; Ref: scu.409974

Ming Pao Newspapers Limited and others v The Attorney General of Hong Kong: PC 20 May 1996

(Hong Kong) A newspaper had been ordered to reveal the source of a story wit regard to a corruption investigation. The statute required such disclosure only with regard to a named individual, and in this case no suspects name was yet known. The courts in the country of origin of the case had a margin of discretion as to the interference with freedom of expression of newspapers.
Lord Keith of Kinkel, Lord Jauncey of Tullichettle, Lord Mustill, Lord Nicholls of Birkenhead, Sir Ralph Gibson
[1996] UKPC 12, [1996] AC 907
Bailii
England and Wales
Citing:
Considered – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 October 2021; Ref: scu.159168

Calvin’s case: 1606

Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws of that kingdom; but if he comes to it by title and descent, he cannot change the laws of himself without the consent of Parliament.’ the court identified a reciprocal bond of allegiance between an individual and the state: ‘duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem; merito igitur ligeantia dicitur ab ligando, quia continet in se duplex ligamen.’
‘But between the Sovereign and the subject there is without comparison a higher and greater connexion; for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects . . ‘
‘ . . ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; arid he is called their liege lord, because he should maintain and defend them.’
(1608) Co Rep 1a, 77 ER 377
Commonlii
England and Wales
Cited by:
Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
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. . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
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 – 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.
Updated: 19 October 2021; Ref: scu.230007

Peerthum v The Independent Commission against Corruption and Another (Mauritius): PC 18 Dec 2014

Whether the secondment of police officers to the Mauritian Independent Commission against Corruption (‘ICAC’) is unconstitutional.
[2014] UKPC 42
Bailii
England and Wales

Updated: 18 October 2021; Ref: scu.540261

Harding v Attorney General of Anguilla: PC 30 Jul 2018

(Anguilla) Mrs Harding claims that she was removed from office before the expiry of her final term in breach of the Constitution of Anguilla, and that she had a legitimate expectation of reappointment which was violated by the failure to reappoint her.
Lord Reed, Lord Kerr, Lord Sumption, Lord Hodge, Lord Briggs
[2018] UKPC 22
Bailii
England and Wales

Updated: 18 October 2021; Ref: scu.621121

Warren v The State: PC 30 Jul 2018

(Pitcairn Islands)
[2018] UKPC 20
Bailii
England and Wales

Updated: 18 October 2021; Ref: scu.621123

Three Rivers District Council v Bank of England: QBD 22 Apr 1996

In an allegation of misfeasance in public office, a complainant who says he has been affected by the alleged misfeasance, has sufficient locus standi to claim. Parliamentary materials are admissible to discover purpose of an Act, and not just in cases of ambiguity. ‘The tort of misfeasance in public office is concerned with a deliberate and dishonest wrongful abuse of the powers given to a public officer. It is not to be equated with torts based on an intention to injure, although . . it has some similarities to them. . . Malice, in the sense of intention to injure the plaintiff or a person in a class of which the plaintiff is a member, and knowledge by the officer both that he has no power to do the act complained of and that the act will probably injure the plaintiff or a person in a class of which the plaintiff is a member are alternative, not cumulative, ingredients of the tort. To act with such knowledge is to act in a sufficient sense maliciously.’
Clarke J
Times 22-Apr-1996, [1996] 3 All ER 558, [1996] 3 All ER 634
England and Wales
Citing:
Cited – Bourgoin SA v Minister of Agriculture Fisheries and Food CA 1985
The plaintiffs were French producers of turkeys. They alleged that the Minister revoked their licence to import turkeys into this country by a decision that was ultra vires and motivated by a desire to assist British turkey producers, and that this . .
See Also – Three Rivers District Council v Bank of England ComC 8-Jan-1996
. .
See Also – Three Rivers District Council and Another v The Bank of England (No. 3) ComC 30-Jul-1997
ComC Misfeasance in public office. Assuming ingredients of tort as reported at [1996] 3 ALL ER 558 at 582-3, was claim bound to fail? All plaintiffs’ evidence now available to court. On that evidence plaintiffs . .

Cited by:
Appeal from – Three Rivers District Council and Others v Governor and Company of the Bank of England (No 3) CA 10-Dec-1998
The tort of misfeasance in public office is not separated into two distinct limbs. In each case the Plaintiff must show a deliberate and dishonest abuse of his position by a public official aware of the loss that will follow or reckless as to such a . .
Cited – Barnard v Restormel Borough Council CA 6-Feb-1998
The council appealed a refusal to strike out the proceedings. The claimant alleged misfeasance in a planning decision giving a competitor consent to development. He said the mayor had deceived the planning committee as to the need to consider the . .
See Also – Three Rivers District Council v Bank of England ComC 8-Jan-1996
. .
See Also – Three Rivers District Council and Another v The Bank of England (No. 3) ComC 30-Jul-1997
ComC Misfeasance in public office. Assuming ingredients of tort as reported at [1996] 3 ALL ER 558 at 582-3, was claim bound to fail? All plaintiffs’ evidence now available to court. On that evidence plaintiffs . .
Approved – Garrett v Attorney-General 1997
(New Zealand Court of Appeal) Mr Garrett claimed damages for financial loss and damage to her reputation caused by the alleged failure of the police to investigate her complaint that she had been raped by a police constable in a police station.
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .

Lists of cited by and citing cases may be incomplete.
Updated: 18 October 2021; Ref: scu.89890

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 established by the judgment in Bancoult. But to make it a state tort requires a legal system in which the Crown, in private law, can do wrong; and this, apart from the Human Rights Act, we do not have. ‘ As to misfeasance, the claimant was unable to point to any officer who knew of the illegality of their actions. The claim under deceit failed because no official was identified as acting in this way, and any statement to a third party not acting as agent for the claimant could not give rise to a claim. Leave to appeal was refused.
Lord Justice Sedley The President Lord Justice Neuberger
[2004] EWCA Civ 997, Times 21-Sep-2004
Bailii
England and Wales
Citing:
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Leave to appeal from – 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 – Dunlop v Woollahra Municipal Council PC 1982
A plaintiff can allege misfeasance in public office against a body such as a local authority or a government ministry. The tort was well establshed. . .
Cited – Ibralebbe v The Queen PC 1964
(St Kitts) The Privy Council is part of the judicial system of the country whence an appeal comes and it is not an institution of the United Kingdom.
The power to make ordinances for the government of dependencies is extremely wide.
‘The . .
Cited – Three Rivers District Council and Others v Governor and Company of The Bank of England (No 3) HL 22-Mar-2001
Misfeasance in Public Office – Recklessness
The bank sought to strike out the claim alleging misfeasance in public office in having failed to regulate the failed bank, BCCI.
Held: Misfeasance in public office might occur not only when a company officer acted to injure a party, but also . .
Cited – Cave v Robinson Jarvis and Rolf (a Firm) HL 25-Apr-2002
An action for negligence against a solicitor was defended by saying that the claim was out of time. The claimant responded that the solicitor had not told him of the circumstances which would lead to the claim, and that deliberate concealment should . .
Cited – Bourgoin SA v Minister of Agriculture Fisheries and Food CA 1985
The plaintiffs were French producers of turkeys. They alleged that the Minister revoked their licence to import turkeys into this country by a decision that was ultra vires and motivated by a desire to assist British turkey producers, and that this . .
Cited – Yates v Thakeham Tiles Ltd CA 19-May-1994
Appeals against a judge’s use of his judicial discretion exercised on the extension of time for commencement of proceedings will succeed only with difficulty. . .
Appeal from – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) Admn 11-May-2006
The claimant on behalf of himself and other islanders sought a declaration that the 2004 Order was unlawful. The islands had been emptied of people in 1973 and before in order to allow use of the islands as military bases. He had enjoyed a right to . .

Cited by:
Application for leave to appeal – 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 – Slough Borough Council v C, Special Educational Needs and Disability Tribunal QBD 22-Jul-2004
Appeal by the Council against a decision of the Special Educational Needs and Disability Tribunal relating to ‘IC’, a boy aged 5 years old who has global development delay and associated learning difficulties.
Held: When deciding whether to . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
At CA – 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.
Updated: 18 October 2021; Ref: scu.199338

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 Scottish Parliament.
[2010] ScotHC HCJAC – 107
Bailii
Scotland
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.
Updated: 16 October 2021; Ref: scu.425922

Geffrey Martyn, Ebenezer Fernie, And Jonathan Duncan v David M’Cullock, And Henry Arlott Mansell: PC 11 Feb 1837

The island of Herm being one of the dependences of Guernsey is, for the purposes of local taxation, part and parcel thereof.
By several successive orders in Council the states of Guernsey were empowered to raise a duty of one shilling per gallon on all spiritous liquors retailed and consumed in the island, the produce of which was to be applied, in the construction and repair of coast defences, harbours, roads etc. By an ordinance of the Royal Court, the States prohibited the importation of spirits into the islands of Sark, Herm and Jethou.
Held: that such prohibition was within the meaning and authority of the Orders in Council (though not originally enforced) and that the object to which the tax was to be applied, formed no ground of exemption to the inhabitants of Herm.
[1837] EngR 502, (1837) 1 Moo PC 309, (1837) 12 ER 831
Commonlii
England and Wales

Updated: 14 October 2021; Ref: scu.313619

Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd: CA 1923

The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be allocated to a different kind of body. An objection was made that an inquiry was ultra vires.
Held: This was held to be ultra vires, and the question was whether prohibition would lie. Since the cost of the inquiry would have been wholly wasted if, thereafter, the Minister and Parliament had approved the scheme only to be told at that late stage that the scheme was ultra vires, the courts could examine the issue. Where some administrative order or regulation is required by statute to be approved by resolution of both Houses of Parliament, the court can in an appropriate case intervene by way of judicial review before the Houses have given their approval.
Younger LJ said: ‘the interference of the Court in such a case as this, and at this stage, so far from being even in the most diluted sense of the words a challenge to its supremacy, will be an assistance to Parliament.’
Lord Atkin observed at a very early stage in the development of public law that he knew of ‘no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament.’
Atkin LJ described the scope of the prerogative writs of prohibition and certiorari: ‘both writs deal with questions of excessive jurisdiction, and doubtless in their origin dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a Court of Justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognized as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.’ and ‘ In the present case the Electricity Commissioners have to decide whether they will constitute a joint authority in a district in accordance with law, and with what power they will invest that body. The question necessarily involves the withdrawal from existing bodies of undertakers of some of their existing rights, and imposing upon them of new duties, including their subjection to the control of the new body, and new financial obligations. It also provides in the new body a person to whom may be transferred rights of purchase which at present are vested in another authority. The Com- missioners are proposing to create such a new body in violation of ‘the Act of Parliament, and are proposing to hold a possibly long and expensive inquiry into the expediency of such a scheme, in respect of which they have the power to compel representatives of the prosecutors to attend and produce papers. I think that in deciding upon the scheme, and in holding the inquiry, they are acting judicially in the sense of the authorities I have cited.’
Bankes LJ said: ‘On principle and on authority it is in my opinion open to this Court to hold, and I consider that it should hold, that powers so far reaching, affecting as they do individuals as well as property, are powers to be exercised judicially, and not ministerially or merely, to use the language of Palles, C.B., as proceedings towards legislation’.
Younger LJ, Lord Atkin LJ, Bankes LJ
[1924] 1 KB 171, (1923) 205 CA 13, (1923) 130 LT 164, [1923] All ER 150
England and Wales
Cited by:
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
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 – 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 – Ridge v Baldwin (No 1) HL 14-Mar-1963
No Condemnation Without Opportunity For Defence
Ridge, a Chief Constable, had been wrongfully dismissed because he was not given the opportunity of presenting his defence. He had been acquitted of the charges brought against him, but the judge at trial had made adverse comments about his . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 October 2021; Ref: scu.258760

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 when it came into effect before the withdrawal, it would not be compatible with EU at the time it was passed. It was seeking to exercise a competence which would still reside with the EU. Similar Bills had been proposed in Wales and Northern Ireland
Held:
‘The powers of the Scottish Parliament, like those of Parliaments in many other constitutional democracies, are delimited by law. The Scottish Parliament is a democratically elected legislature with a mandate to make laws for people in Scotland. It has plenary powers within the limits of its legislative competence. But it does not enjoy the sovereignty of the Crown in Parliament; rules delimiting its legislative competence are found in section 29 of and Schedules 4 and 5 to the Scotland Act, to which the courts must give effect. And the UK Parliament also has power to make laws for Scotland, a power which the legislation of the Scottish Parliament cannot affect: section 28(7) of the Scotland Act. The Scotland Act must be interpreted in the same way as any other statute. The courts have regard to its aim to achieve a constitutional settlement and therefore recognise the importance of giving a consistent and predictable interpretation of the Scotland Act so that the Scottish Parliament has a coherent, stable and workable system within which to exercise its legislative power. This is achieved by interpreting the rules as to competence in the Scotland Act according to the ordinary meaning of the words used.’
Lady Hale, President, Lord Reed, Deputy President, Lord Kerr, Lord Sumption, Lord Carnwath, Lord Hodge, Lord Lloyd-Jones
[2018] UKSC 64
Bailii, Bailii Summary
European Union (Withdrawal) Act 2018
Scotland
Cited by:
Applied – 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 Outwith their 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 . .
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 Outwith their 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.
Updated: 08 October 2021; Ref: scu.631192

Fothergill v Monarch Airlines Ltd: HL 10 Jul 1980

The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the citizen is bound should be ascertainable by reference to sources that are accessible. A court may in appropriate cases have regard to travaux preparatoires in construing a treaty but such an aid is only helpful if the materials clearly and indisputably point to a definite treaty intention. As to the Convention: ‘The language of that Convention that has been adopted at the international conference to express the common intention of the majority of the states represented there is meant to be understood in the same sense by the courts of all those states which ratify or accede to the Convention. Their national styles of legislative draftsmanship will vary considerably as between one another. So will the approach of their judiciaries to the interpretation of written laws and to the extent to which recourse may be had to travaux preparatoires, doctrine and jurisprudence as extraneous aids to the interpretation of the legislative text. The language of an international convention has not been chosen by an English parliamentary draftsman. It is neither couched in the conventional English legislative idiom nor designed to be construed exclusively by English judges. It is addressed to a much wider and more varied judicial audience than is an Act of Parliament that deals with purely domestic law. It should be interpreted, as Lord Wilberforce put it in James Buchanan and Co. Ltd v Babco Forwarding and Shipping (U.K.) Ltd [1978] A.C. 141, 152, `unconstrained by technical rules of English law, or by English legal precedent, but on broad principles of general acceptation.’ and where a treaty is directly incorporated into English law by Act of the legislature, its terms become subject to the interpretative jurisdiction of the court in the same way as any other Act of the legislature.
Lord Diplock, Lord Wilberforce
[1980] 2 All ER 696, [1980] 3 WLR 209, [1981] AC 251, [1980] UKHL 6
mercatoria, Bailii
Warsaw Convention 1929 17, Vienna Convention on the Law of Treaties
England and Wales
Cited by:
Cited – BBC Enterprises Ltd v Hi-Tech Xtravision Ltd and Others CA 21-Dec-1989
The plaintiff sold television entertainment through subscriptions. The broadcasts were protected by encryption. The defendant sold equipment which could unscramble the broadcasts. They were sued under the section. At first instance, the claim was . .
Cited – Stevenson and Another v Rogers CA 8-Dec-1998
The defendant, who carried on the business of a fisherman, sold his vessel Jelle to the plaintiff with a view to having a new boat built to his requirements. In the event he bought a replacement vessel which he continued to use for his business. The . .
Cited – Mullen, Regina (on the Application of) v Secretary of State for the Home Department HL 29-Apr-2004
The claimant had been imprisoned, but his conviction was later overturned. He had been a victim of a gross abuse of executive power. The British authorities had acted in breach of international law and had been guilty of ‘a blatant and extremely . .
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 – J I MacWilliam Company Inc v Mediterranean Shipping Company SA; The ‘Rafaela S’ HL 16-Feb-2005
A US company bought a printing machine and ancillary equipment on CIF terms from an English company. The sellers consigned the goods to the buyers. The carriers were a container liner operator and the demise charterers of the vessels ‘Rosemary’ and . .
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 – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .
Cited – Christian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Cited – Inland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .
Cited – Revenue and Customs v Smallwood and Another CA 8-Jul-2010
The taxpayers had set up trusts which they said were based in Mauritius allowing them to claim double taxation relief. The Revenue had issued closure notices, confirmed by the SPCT, but overturned by the High Court. The Revenue appealed, saying that . .
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 – Bogdanic v The Secretary of State for The Home Department QBD 29-Aug-2014
The claimant challenged fines imposed on him after three illegal immigrants were found to have hidden in his lorry in the immigration control zone at Dunkirk. The 1999 At was to have been amended by the 2002 Act, and the implementation was by the . .
Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .
Cited – Warner v Scapa Flow Charters (Scotland) SC 17-Oct-2018
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.182178

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.
Lady Hale, President, Lord Mance, Lord Kerr, Lord Hodge, Lady Black
[2018] UKSC 49, [2019] NI 96, [2019] 1 All ER 1, [2018] WLR(D) 648, [2018] 3 WLR 1294, [2018] HRLR 22, 45 BHRC 440, UKSC 2017/0020
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2018 May 1 am Videos, SC 2018 May 01 pm Video, SC 2018 May 2 am, SC 2018 May pm Video
Northern Ireland Act 1998 Sch 10 34, County Courts (Northern Ireland) Order 1980 61(1), Judicature (Northern Ireland) Act 1978 42(6), Fair Employment and Treatment (Northern Ireland) Order 1998, Equality Act (Sexual Orientation) Regulations (Northern Ireland) 2006
Northern Ireland
Citing:
Cited – 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 . .
Cited – Bull and Another v Hall and Another SC 27-Nov-2013
The court was asked ‘Is it lawful for a Christian hotel keeper, who sincerely believes that sexual relations outside marriage are sinful, to refuse a double-bedded room to a same sex couple?’ The defendants (Mr and Mrs Bull) appealed against a . .
Appeal from – Lee v McArthur and Others CANI 24-Oct-2016
The appellant bakers had accepted (through an assistant) an order from the claimant for a cake emblazoned with a pro gay marriage slogan. The appellants, being committed Christians, returned the payment for the cake and refused to complete the . .
Cited – English v Thomas Sanderson Ltd CA 19-Dec-2008
The claimant appealed dismissal of his claim for harrassment and sex discrimination. Though heterosexual, he had been subject to persistent jokes that he was homosexual. The court first asked whether the alleged conduct was ‘on the grounds of sexual . .
Cited – Ladele v London Borough of Islington CA 15-Dec-2009
The appellant was employed as a registrar. She refused to preside at same sex partnership ceremonies, saying that they conflicted with her Christian beliefs.
Held: The council’s decision had clearly disadvantaged the claimant, and the question . .
Cited – E, Regina (on The Application of) v Governing Body of JFS and Another SC 16-Dec-2009
E complained that his exclusion from admission to the school had been racially discriminatory. The school applied an Orthodox Jewish religious test which did not count him as Jewish because of his family history.
Held: The school’s appeal . .
Cited – RT (Zimbabwe) and Others v Secretary of State for The Home Department SC 25-Jul-2012
The claimants said it would be wrong to return them to Zimbabwe where they would be able to evade persecution only by pretending to a loyalty to, and enthusiasm for the current regime.
Held: The Secretary of State’s appeals failed. The HJ . .
Cited – Coleman v Attridge Law, Law ECJ 17-Jul-2008
ECJ Grand Chamber – Social policy – Directive 2000/78/EC – Equal treatment in employment and occupation – Articles 1, 2(1), (2)(a) and (3) and 3(1)(c) – Direct discrimination on grounds of disability – Harassment . .
Cited – Kokkinakis v Greece ECHR 25-May-1993
The defendant was convicted for proselytism contrary to Greek law. He claimed a breach of Article 9.
Held: To say that Jehovah’s Witness were proselytising criminally was excessive. Punishment for proselytising was unlawful in the . .
Cited – Ryder v Northern Ireland Policing Board CANI 23-Nov-2007
Kerr LCJ said: ‘A number of recent appeals from decisions of the Fair Employment/Industrial tribunals have involved challenges to conclusions reached on preliminary points – see, for instance, Bombadier Aerospace v McConnell and Cunningham v . .
Cited – Buscarini And Others v San Marino ECHR 18-Feb-1999
(Grand Chamber) Elected MPs complained that they were not allowed to take their seats unless they swore an oath in religious form.
Held: This requirement was not compatible with article 9. ‘That freedom [Article 9 freedom of thought] entails, . .
Cited – Board of Education et al v Barnette 14-Jun-1943
. .
Cited – Wooley v Maynard 20-Apr-1977
(United States Supreme Court) New Hampshire statutes require that noncommercial motor vehicles bear license plates embossed with the state motto, ‘Live Free or Die,’ and make it a misdemeanor to obscure the motto. Appellees, Maynard and his wife, . .
Cited – Kustannus Oy Vapaa Ajattelija Ab v Finland ECHR 15-Apr-1996
the European Commission of Human Rights held that limited companies could not rely upon article 9(1) to resist paying church taxes. . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a 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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.625428

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 dissenting) The Commission did not have standing, and a declaration could not be made. The Court did however consider the law, and a majority thought the current law was disproportionate and was incompatible with Article 8 to the extent that that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest.
Lady Hale said: ‘It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn – it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman – that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights-holders under the both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two.’
Lady Hale, President, Lord Mance, Lord Kerr, Lord Wilson, Lord Reed, Lady Black, Lord Lloyd-Jones
[2018] UKSC 27, [2018] NI 228, 46 BHRC 1, [2019] 1 All ER 173, [2018] HRLR 14
Bailii, Bailii Summary, Supreme Court, SC Summary, SC Summary Video, SC Video 2017 Oct 24am, SC 2017 Oct 24 pm Video, SC Video 2017 Oct 25 am, SC 2017 Oct 25 pm Video, SC 2017 Oct 26 am Video, SC 2017 Oct 26 pm Video
Offences Against the Person Act 1861 58 59, Criminal Justice Act (NI) 1945 25(1), European Convention on Human Rights 8 14, Northern Ireland Act 1998
Northern Ireland
Citing:
Appeal from – The Attorney General for Northern Ireland and Another v The Northern Ireland Human Rights Commission CANI 29-Jun-2017
Appeal by the Attorney General and Department of Justice against an Order declaring that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with Article 8 of ECHR insofar as it is an offence:
(i) to procure a . .
Cited – Rex v Bourne 1939
An eminent surgeon openly in a public hospital operated to terminate the pregnancy of a 14 year old girl who had become pregnant in consequence of a violent rape.
Held: The court suggested when summing up that there might be a duty in certain . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – Pretty v The United Kingdom ECHR 29-Apr-2002
Right to Life Did Not include Right to Death
The applicant was paralysed and suffered a degenerative condition. She wanted her husband to be allowed to assist her suicide by accompanying her to Switzerland. English law would not excuse such behaviour. She argued that the right to die is not . .
Cited – In Re Northern Ireland Human Rights Commission Northern Ireland HL 20-Jun-2002
The coroner intended to hold an inquest into the deaths on the Omagh bombing. The Commission sought the right to be involved on the basis that human rights of interest to it might arise, and the coroner refused, saying that they had no standing to . .
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 – 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 – Vo v France ECHR 8-Jul-2004
Hudoc Preliminary objection rejected (ratione materiae, non-exhaustion of domestic remedies) ; No violation of Art. 2
A doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks . .
Cited – Family Planning Association of Northern Ireland v Minister for Health Social Services and Public Safety CANI 8-Oct-2004
A termination of pregnancy is lawful when its continuation would threaten the woman’s life or when it would probably affect her physical or mental health but only if the effect would be serious and, in particular, permanent or long-term . .
Cited – A, B And C v Ireland ECHR 16-Dec-2010
Grand Chamber – The Court considered the prohibition of abortion in Ireland: ‘The first two applicants principally complained under Article 8 about, inter alia, the prohibition of abortion for health and well-being reasons in Ireland and the third . .
Cited – Steinfeld and Another v Secretary of State for Education CA 21-Feb-2017
Hetero Partnerships – wait and see proportionate
The claimants, a heterosexual couple complained that their inability to have a civil partnership was an unlawful discrimination against them and a denial of their Article 8 rights. The argument that the appellants’ case did not come within the ambit . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Klass And Others v Germany ECHR 6-Sep-1978
(Plenary Court) The claimant objected to the disclosure by the police of matters revealed during their investigation, but in this case, it was held, disclosure even after the event ‘might well jeopardise the long-term purpose that originally . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Stubing v Germany ECHR 12-Apr-2012
‘. . in cases arising from individual applications it is not the Court’s task to examine domestic legislation in the abstract. Rather, it must examine the manner in which the relevant legislation was applied to the applicant in the particular . .
Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
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 – Chahal v The United Kingdom ECHR 15-Nov-1996
Proper Reply Opportunity Required on Deportation
(Grand Chamber) The claimant was an Indian citizen who had been granted indefinite leave to remain in this country but whose activities as a Sikh separatist brought him to the notice of the authorities both in India and here. The Home Secretary of . .
Cited – Regina v Secretary of State for Home Department ex parte Chahal Admn 22-Oct-1997
. .
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 . .
Cited – 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 . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Parochial Church Council of the Parish of Aston Cantlow and Wilmcote with Billesley, Warwickshire v Wallbank and another HL 26-Jun-2003
Parish Councils are Hybrid Public Authorities
The owners of glebe land were called upon as lay rectors to contribute to the cost of repairs to the local church. They argued that the claim was unlawful by section 6 of the 1998 Act as an act by a public authority incompatible with a Convention . .
Cited – MM (Lebanon) and Others, Regina (on The Application of) v Secretary of State for The Home Department and Another CA 11-Jul-2014
Aikens LJ said: ‘The court would not be entitled to strike down the rule unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases.’ and ‘If the particular . .
Cited – Attorney-General’s Reference (No 3 of 1994) HL 24-Jul-1997
The defendant stabbed a pregnant woman. The child was born prematurely and died. The attack had been directed at the mother, and the proper offence was manslaughter.
Held: The only questions which need to be addressed are (1) whether the act . .
Cited – Gafgen v Germany ECHR 1-Jun-2010
(Grand Chamber) The claimant said that police treatment during his interview had amounted to torture.
Held: The Salduz principles were not restricted to the failure to provide access to a lawyer during interview. There is no clear consensus . .
Cited – Marckx v Belgium ECHR 13-Jun-1979
Recognition of illegitimate children
The complaint related to the manner in which parents were required to adopt their own illegitimate child in order to increase his rights. Under Belgian law, no legal bond between an unmarried mother and her child results from the mere fact of birth. . .
Cited – Stec and Others v United Kingdom ECHR 12-Apr-2006
(Grand Chamber) The claimants said that differences between the sexes in the payment of reduced earning allowances and retirement allowances were sex discrimination.
Held: The differences were not infringing sex discrimination. The differences . .
Cited – RR v Poland ECHR 26-May-2011
The applicant learned of possible malformation of the foetus from an ultrasound at the 18-week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not . .
Cited – Ilhan v Turkey ECHR 27-Jun-2000
Hudoc Judgment (Merits and just satisfaction) Preliminary objection dismissed (victim); Preliminary objection dismissed (non-exhaustion); No violation of Art. 2; Violation of Art. 3; Violation of Art. 13; . .
Cited – Tysiac v Poland ECHR 16-Mar-2007
The complainant complained about the failure to afford her an abortion in circumstances where she had an understandable fear that giving birth would lead to her losing her already poor sight, leading to a further six-months of pregnancy and a . .
Cited – P and S v Poland ECHR 30-Oct-2012
P aged 14 became pregnant due to rape, evidenced by bruises. Polish law permitted an abortion in such circumstances, but the reality of its practical implementation was in striking discordance with the theoretical right. P was given contradictory . .
Cited – Open Door and Dublin Well Woman v Ireland ECHR 29-Oct-1992
Hudoc Judgment (Merits and just satisfaction) Lack of jurisdiction (Art. 8); Preliminary objection rejected (victim); Preliminary objection rejected (six month period); Preliminary objection rejected . .
Cited – Opuz v Turkey ECHR 9-Jun-2009
The applicant alleged, in particular, that the State authorities had failed to protect her and her mother from domestic violence, which had resulted in the death of her mother and her own ill-treatment. . .
Cited – Attorney General v X 5-Mar-1992
(Supreme Court of Ireland) Refusal of abortion following a rape . .
Cited – MacFarlane and Another v Tayside Health Board HL 21-Oct-1999
Child born after vasectomy – Damages Limited
Despite a vasectomy, Mr MacFarlane fathered a child, and he and his wife sought damages for the cost of care and otherwise of the child. He appealed a rejection of his claim.
Held: The doctor undertakes a duty of care in regard to the . .
Cited – Parkinson v St James and Seacroft University Hospital NHS Trust CA 11-Apr-2001
A mother had undergone a negligent sterilisation, and in due course she gave birth to a disabled child.
Held: The right to bodily integrity is the first and most important of the interests protected by the law of tort. The cases saying that . .
Cited – Regina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
Cited – Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance) HL 13-Mar-2003
Court to seek and Apply Parliamentary Intention
The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to . .
Cited – Regina v 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 – Egmez v Cyprus ECHR 21-Dec-2000
Hudoc Judgment (Merits and just satisfaction) Violation of Art. 3; No violation of Art. 5-1; No violation of Art. 5-2; No violation of Art. 5-3; No violation of Art. 5-4; Violation of Art. 13; No separate issue . .
Cited – Gafgen v Germany ECHR 30-Jun-2008
(Fifth Section) The claimant said that having been arrested by police, their treatment of him amounted to torture.
Held: Iit was not necessary to rule on the Government’s preliminary objection of non-exhaustion of domestic remedies. It held, . .
Cited – Krastanov v Bulgaria ECHR 30-Sep-2004
ECHR Judgment (Merits and Just Satisfaction) – Violation of Art. 3; Violation of Art. 6-1; Not necessary to examine P1-1; Non-pecuniary damage – financial award; Costs and expenses partial award – Convention . .
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 . .
Cited – Mayeka and Mitunga v Belgium ECHR 12-Oct-2006
A five-year-old child was detained by the Belgian authorities in an immigration centre.
Held: The court assessed the impact of the treatment on the applicant, stating that her position was: ‘characterised by her very young age, the fact that . .
Cited – Wiktorko v Poland ECHR 31-Mar-2009
. .
Cited – Mouvement Raelien Suisse v Switzerland ECHR 13-Jan-2011
The applicant association alleged that the banning of its posters by the Swiss authorities had breached its right to freedom of religion and its right to freedom of expression, as guaranteed by Articles 9 and 10 of the Convention respectively. . .
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 – Nada v Switzerland (GC) ECHR 12-Sep-2012
(Grand Chamber) ‘The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right . .
Cited – Sufi and Elmi v The United Kingdom ECHR 28-Jun-2011
The risk of the applicants being subjected to treatment which would violate article 3 if returned to Somalia meant that the British authorities would be in breach of the article if they carried through their intention to deport them to that country. . .
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 by:
Cited – Crowter and Others, Regina (On the Application Of) v Secretary of State for Health And Social Care Admn 23-Sep-2021
Foetus has no Established Human Rights
The Claimants sought a declaration that section 1(1)(d) of the Abortion Act 1967, as amended, is incompatible with the European Convention on Human Rights (‘ECHR’), as well as some other remedies. The claimant had Down’s Syndrome, and complained the . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 September 2021; Ref: scu.617206

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 defendant sought payment for the carrying of passengers. The appellant said if he had any right to claim such, he had lost it after many years of allowing passengers to cross his land without charge.
Held: The respondent succeeded: ‘He cannot put an end to a right conferred by Act of Parliament, merely by the non-exercise of it for some years. ‘ and
‘There is little doubt that the provisions of the Act are ambiguous and inaccurate; but . . Mr. Wauchope is entitled to the sum of one halfpenny per ton upon the weigh of the carriage with the addition of the passengers. And if what has been stated at the bar is correct in fact, namely, that the directors of the company have actually paid him at the rate upon small parcels under five hundred weight, I must say that they have themselves put this very construction upon one part of the . . Act, and cannot be surprised that we have applied it to another.’
Irregularity in the conduct of parliamentary business is a matter for Parliament, not the courts. It was suggested that a private Act which affected a vested right could not be made applicable to a person who had had no notice served upon him of the introduction of the Bill. Lord Campbell said: ‘There is no foundation whatever for it. All that a Court of Justice can do is look to the Parliament Roll; if from that it should appear that a bill has passed both Houses and received the Royal Assent, no Court of Justice can inquire into the mode in which it was introduced into Parliament, nor into what was done previous to its introduction, or what passed in Parliament, during its progress in its various stages through both Houses. I trust, therefore, that no such inquiry will again be entered upon in any Court in Scotland, but that due effect will be given to every Act of Parliament, private as well as public, upon what appears to be the proper construction of its existing provisions ‘.
Lord Brougham and Lord Cottenham said that want of notice was no ground for holding that the Act did not apply. Lord Campbell based his opinion on more
general grounds. He said: ‘My Lords, I think it right to say a word or two before I sit down, upon the point that has been raised with regard to an act of Parliament being held inoperative by a court of justice because the forms, in respect of an act of Parliament, have not been complied with. There seems great reason to believe that notion has prevailed to a considerable extent in Scotland, for we have it here brought forward as a substantive ground upon which the act of the 4th and 5th William the Fourth could not apply: the language being, that the statute of the 4th and 5th William the Fourth being a private act, and no notice given to the pursuer of the intention to apply for an act of Parliament, and so on. It would appear that that defence was entered into, and the fact was examined into, and an inquiry, whether notice was given to him personally, or by advertisement in the newspapers, and the Lord Ordinary, in the note which he appends to his interlocutor, gives great weight to this. The Lord Ordinary says ‘ he is by no means satisfied that due parliamentary notice was given to the pursuer previous to the introduction of this last act.’ Undoubtedly no notice was given to him personally, nor did the public notices announce any intention to take away his existing rights. If, as the Lord Ordinary is disposed to think, these defects imply a failure to intimate the real design in view, he would be strongly inclined to hold in conformity with the principles of Donald, 27th November, 1832, that rights previously established could not be taken away by a private act, of which due notice was not given to the party meant to be injured.’ Therefore, my Lord Ordinary seems to have been most distinctly of opinion, that if this act did receive that construction, it would clearly take away the right to this tonnage from Mr. Wauchope, and would have had that effect if notice had been given to him before the bill was introduced into the House of Commons ; but that notice not having been given, it could have no such effect, and therefore the act is wholly inoperative.
I must express some surprise that such a notion should have prevailed. It seems to me there is no foundation for it whatever; all that a court of justice can look to is the parliamentary roll; they see that an act has passed both Houses of Parliament, and that it has received the royal assent, and no court of justice can inquire into the manner in which it was introduced, or what passed in parliament during the various stages of its progress through both Houses of Parliament. I therefore trust that no such inquiry will hereafter be entered into in Scotland, and that due effect will be given to every act of Parliament, both private as well as public, upon the just construction which appears to arise upon it.’
Lord Cottenham, Lord Brougham, Lord Campbell
[1842] UKHL 710, 8 ER 279, [1842] EngR 405, (1842) 8 Cl and Fin 710, (1842) 8 ER 279, [1842] UKHL J12
Bailii, Commonlii, Bailii
Scotland
Cited by:
Approved – 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 – Regina on the Application of Jackson and others v HM Attorney General CA 16-Feb-2005
The applicant asserted that the 2004 Act was invalid having been passed under the procedure in the 1949 Act, reducing the period by which the House of Lords could delay legislation; the 1949 Act was invalid, being delegated legislation, had used the . .
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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.238718

Onesearch Direct Holdings Ltd (T/A Onesearch Direct) v City of York Council: Admn 19 Mar 2010

The court considered the conditions under which the respondent authority replied to all enquiries as to properties within its area. The replies were given by a standardised all inclusive information sheet derived from a central database. The authority would not allow either access to the raw data, nor provide piecemeal responses. The claimant argued that the statutory background implied a duty to allow access to the raw data.
Held: While a court can interpret a statute merely authorising an authority to take an action as imposing a duty where a failure to act would frustrate the purpose of the Act, it was not as clear that a similar interpretation could be imposed to support a different statute. The background information to the 2004 Act clearly anticipated authorities allowing access to the raw data, preferring initially a voluntary approach. That preference undermined an interpretation imposing an obligation, and there was in fact no obligation imposed on the council to allow access to the raw data.
Hickinbottom J
[2010] EWHC 590 (Admin)
Bailii
Local Government Act 1972, Local Government Act 2000 2, Local Authorities (Charges for Land Searches) Regulations 1994 (SI 1994 No 1885) 2
England and Wales
Citing:
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 – The Sussex Peerage Case 1844
Statements against penal interest are outside the common law exception of statements against interest. The oral confession of a deceased person was considered.
The court considered principles of statutory interpretation: ‘Acts should be . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 September 2021; Ref: scu.403378

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 parties being clearly pointed out by the bill, and expressly excepted from the saving clause), it is not for a court of law to consider whether the forms of parliament have been pursued, whether those provisions which the wisdom of either House of Parliament has provided for the prevention of any deception on itself, or of injury to the rights of absent parties, have been followed: it is enough for us if the provisions of the act are clear, express, and positive: if they are, we have only to carry the act into effect.’
Cockburn CJ
[1859] EngR 694, (1859) 6 CB NS 1, (1859) 144 ER 350
Commonlii
England and Wales
Cited by:
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: . .
Appeal from – The Earl Of Shrewsbury v Scott And Others CEC 18-Feb-1860
Judgment affirmed . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.288046

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 or if that court exceeded the powers committed to it by statute, they may be reversed and set aside by the court.
Lord Lyndhurst LC answered the argument that the Court’s power was ousted by the Statute: ‘But I apprehend, that (particularly from the circumstance of the appeal being taken away) a jurisdiction is given in this case to the Court of Session, not to review the judgment on the merits, but to take care that the Court of Presbytery shall keep within the line of its duty, and conform to the provisions of the Act of Parliament. There is in the Court of Session in Scotland, that superintending authority over inferior jurisdictions, which is requisite in all countries, for the purpose of confining those inferior jurisdictions within the bounds of their duty; and the only question here is, whether this case is of such a nature and description as to justify the calling into action that authority of the superior court? Cases were cited at the Bar, and mentioned in the printed papers now on your Lordships’ table, in which the Court of Session has exercised a superintending authority over inferior jurisdictions, when they have been guilty of excess of their jurisdiction, or have acted inconsistently with the authority with which they were invested.’
Lord Lyndhurst LC
(1829) 3 Wils and S 441
Scotland
Cited by:
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 September 2021; Ref: scu.653283

Cart and Others, Regina (on The Application of) v The Upper Tribunal and Others: Admn 1 Dec 2009

The court was asked whether the supervisory jurisdiction of the High Court, exercisable by way of judicial review, extends to such decisions of the Special Immigration Appeals Commission (SIAC) and the Upper Tribunal (UT) as are not amenable to any form of appeal. Both Tribunals had been established as superior courts of record.
Held: Cart’s application failed. The applications of U and XC succeeded. Judicial review is available against the decisions of the Upper Tribunal, but only in exceptional circumstances: ‘SIACA s.1(3) and TCEA s.3(5) cannot be construed as excluding the judicial review jurisdiction from SIAC and UT respectively, whatever the historic scope of the expression ‘superior court of record’. SIAC is in principle amenable to judicial review only for any excess of jurisdiction. The court examined the history and justification of the new tribunals structure. Built into the system was the idea that the Upper Tribunal should offer the effective equivalent of judicial review of decisions of the First Tier Tribunals.
Laws LJ said ‘The tribunal system is designed to be so far as possible a self-sufficient structure, dealing internally with errors of law made at first instance and resorting to higher appellate authority only where a legal issue of difficulty or of principle requires it. By this means serious questions of law are channelled into the legal system without the need of post-Anisminic judicial review.’ and ‘Let it be supposed that a review of past cases, and the evolution of our courts since the Curia Regis of King William I, demonstrate that the prerogative writs have not run to superior courts of record and indeed that the expression ‘superior courts of record’ has consistently been used by judges and commentators to refer to courts not amenable to the writs. Does it follow that the bare designation by Parliament of an institution as such a court, as has been done by SIACA s.1(3) and TCEA s.3(5), excludes the judicial review jurisdiction? I think not.’
‘if the litigant has reached the end of the appeal road, he should not generally be allowed a fresh start down a different track marked judicial review.’
Owen J, Laws LJ
[2009] EWHC 3052 (Admin), [2010] PTSR 824, [2010] 2 FCR 309, [2010] 1 All ER 908, [2010] 2 WLR 1012, [2009] STI 3167, [2010] STC 493
Bailii
Special Immigration Appeals Commission Act 1997 1(3), Tribunals, Courts and Enforcement Act 2007 3(5), Anti-Terrorism Crime and Security Act 2001
England and Wales
Citing:
Appeal from – RC v Secretary of State for Work and Pensions UTAA 15-Apr-2009
. .
Cited – A and Others v The United Kingdom ECHR 19-Feb-2009
(Grand Chamber) The applicants had been subjected to severe restrictions. They were foreign nationals suspected of terrorist involvement, but could not be deported for fear of being tortured. The UK had derogated from the Convention to put the . .
Cited – Rex v Berkley and Bragge 1819
Orders of justices of peace, made in pursuance of the Excise laws, may be removed by certiorari: and the words ‘party, person,’ andC. in the Act of 23 G 2, C 18, do not include the Crown; therefore a certiorari, on the motion of His Majesty’s . .
Cited – Rex v Cheltenham Commissioners QBD 1841
A statute provided that any decision of the Quarter Sessions as to the levying of certain rates was to be ‘final, binding, and conclusive to all intents and purposes whatsoever’, and that no order made in that connection ‘shall . . be removed or . .
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 – 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 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 – Sivasubramaniam v Wandsworth County Court, Management of Guildford College of Further and Higher Education and Another CA 28-Nov-2002
Having had various claims made in county courts rejected, the applicant was then refused leave to appeal. He sought judicial review of the refusal to give leave to appeal, and now appealed the refusal of leave to apply for a judicial review.
Cited – Regina v University of London; Ex parte Vijayatunga 1988
The court considered the powers of the Visitors to the University. Simon Brown J said: ‘The Visitor enjoys untrammelled jurisdiction to investigate and correct wrongs done in the administration of the internal law of a Foundation to which he is . .
Cited – Regina v Secretary of State for Home Department ex parte Fayed CA 13-Nov-1996
The nature of the Secretary of State’s objections and a chance to reply are to be given if the Secretary intends to deny an application for naturalisation. Administrative convenience cannot justify unfairness. The court deprecated ‘fishing . .
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 – Regina v Cripps, ex parte Muldoon QBD 1984
C, a barrister was appointed to hear an election petition under section 115. The petitioners later sought an order of certiorari to quash his costs award. It was claimed that no such remedy lay against the tribunal.
Held: Certiorari would lie. . .
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 – 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 v Social Security Commissioner, Ex Parte Chamberlain QBD 7-Jul-2000
On an application to review an earlier incapacity benefit decision, the adjudicating officer or tribunal must first decide if a material change of circumstances existed since the decision, or whether the decision was founded upon some mistake. Only . .
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 – Strickson, Regina (On the Application of) v Preston County Court and Others CA 8-Oct-2007
The court was required to revisit the circumstances in which the High Court may properly entertain a judicial review of orders made by a judge in the county court.
Laws LJ said: ‘How should such a defect be described in principle? I think a . .

Cited by:
Appeal from – 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 . .
At First Instance – 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 – Ogunbiyi, Regina (on The Application of) v Southend County Court and Another Admn 19-Mar-2015
Application for judicial review of a decision of a Circuit Judge at the County Court, (a) refusing permission to appeal again the judgment of a Deputy District Judge following a trial of the claim for damages again the claimant under a hire purchase . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 September 2021; Ref: scu.381677

Darmalingum v The State: PC 10 Jul 2000

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

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

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

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

Updated: 03 September 2021; Ref: scu.159472

Usher v Barlow: CA 1952

A wall plaque was published before 1950. Its design was an original artistic work but was produced for the purpose of reproduction by an industrial process. It was not registered as an industrial design under the applicable designs legislation because the Comptroller of the Patents Office would not register wall plaques as designs under the Patents and Designs Acts 1907 to 1919. The 1949 Act came into effect on Jan 1 1950. The Board of Trade made rules under that Act which came into operation on 2 January 1950. By rule 26 wall plaques were excluded from registration as designs under the Act. The rules were made pursuant to section 1(4) of the Act which empowered the Board of Trade to make rules excluding from registration, designs for articles which were literary or artistic in character.
Held: The judgment at first instance was upheld.
The reference in s. 22 of the 1911 Copyright Act to the Patents and Designs Acts 1907 to 1919 was ambulatory, and, after the coming into operation of the 1949 Act, to be read as a reference to the 1949 Act. It followed that copyright in the wall plaque subsisted because the 1949 Act and the rules made thereunder prevented the registration of the plaque as a design. It was not then capable of registration.
Lord Evershed MR said that section 37 of the 1889 Act extended to something more than that which was requisite to enable the Act to come into operation at all: it covered such steps as would be required to enable the Act to operate effectively.
Jenkins LJ, with whose judgment Morris LJ agreed, observed that ‘operation’ was used in section 37 in two different senses, namely the sense in which it appeared in the definition of ‘commencement’ and the sense of ‘effective operation’. The section should be construed as extending to whatever was necessary or expedient for the purpose of bringing the Act into effective operation, in the second sense, at the time when it came into operation, in the first sense.
Lord Eversed MR, Jenkins, Morris LJJ
(1952) 69 RPC 27, (1952) 69 RPC 27, [1952] Ch 255, (1952) 69 RPC 27
Copyright Act 1911, Patents and Designs Act 1907 22, Interpretation Act 1889, Registered Designs Act 1949
England and Wales
Cited by:
Cited – Lucasfilm Ltd and Others v Ainsworth and Another CA 16-Dec-2009
The claimants had made several Star Wars films for which the defendants had designed various props items. The parties disputed ownership of the rights in the designs, and in articular of a stormtrooper helmet. The issues came down to whether the . .
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 – Interlego AG v Tyco Industries Inc PC 5-May-1988
How much new material for new copyright
(Hong Kong) Toy building bricks were manufactured by Lego in accordance with engineering drawings made for that purpose. One issue was whether new drawings made since 1972, altering the original drawings in various minor respects but added new . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.470871

Dame Either Gray, Widow and Executrix of Sir James Gray, Bart Her Late Husband, Deceased v Edward Callander, Writer In Edinburgh: HL 1 Apr 1724

Assignation General – An assignation to a creditor of as much of the first and readiest of the rents of his lands that should happen to be due to him at the time of his decease, as would satisfy and pay a certain sum, gave no preference in a competition of creditors after the debtor’s death.
Creditors of a defunct – Act of Sederunt, 1662 – After expiration of six month from the debtor’s death, one creditor cites the executor in an action of constitution on the 18th of June, and same day the executor cites that creditor, and the general assignee above-mentioned, in a multiple poinding: the latter afterwards, on the 27th of June, cited the executor in an action of constitution; the creditor, giving the first citation, also got the first decree of constitution, and is by the Court preferred to the other; but the judgment is reversed, and both are preferred pari passu.
[1724] UKHL Robertson – 483, (1724) Robertson 483
Bailii
Scotland

Updated: 23 August 2021; Ref: scu.553903

Minister of the Interior v Harris: 1952

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

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

Carter v Bradbeer: HL 1975

The House considered the definition of a ‘bar’ and the area to which a special hours certificate applied.
Held: The appellant’s conviction for selling intoxicating liquor after prescribed hours was upheld as the sale took place in an area not in accordance with the terms of the special hours certificate and the sale of the alcohol in that area was not ancillary to the provision of music and dancing and substantial refreshment.
Viscount Dilhorne said: ‘These provisions show that it was Parliament’s intention to secure that the sale of intoxicating liquor under a special hours certificate should always be ancillary to music and dancing, and that premises to which a special hours certificate applied should not be what was called in argument a ‘late night pub.”
Lord Diplock said that the inherent flexibility of the English language may make it necessary for an interpreter to have recourse to a variety of aids, and ‘Although the term ‘purposive construction’ is not new, its entry into fashion betokens a swing by the appellate courts away from literal construction. Lord Diplock said in 1975: ‘If one looks back to the actual decisions of [the House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions.’
Viscount Dilhorne, Lord Diplock
[1975] 1 WLR 1204
Licensing Act 1964
England and Wales
Citing:
Appeal from – Carter v Bradbeer QBD 1975
Sales of alcohol had taken place at a bar within the meaning of section 76(5).
Held: Widgery LCJ said: ‘I think it must be remembered that the consumption of liquor in the special hours period, for want of a better phrase, is liquor which is . .

Cited by:
Cited – Luminar Leisure Ltd v Norwich Crown Court Admn 3-Oct-2003
The claimant challenged a grant on appeal of a Supper Hours Certificate. It had been refused initially on the ground that in reality it was sought merely to secure extended licensing hours.
Held: The purpose of the licensee must be that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.186579

Director of Public Prosecutions v Bhagwan: HL 1972

Under s 3 of the 1962 Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a ‘ship’ (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration officer to submit to examination. Under ss 2 and 3 (1) (b) of the Act and para 2 of Sch 1, the immigration officer then had power, within 12 hours after the examination, to give notice refusing the Commonwealth citizen admission into the United Kingdom or admitting him subject to conditions. If the immigration officer refused admission, he could under s 3 (1) (c) of the Act and para 3 of Sch 1 give directions for the removal of the Commonwealth citizen from the United Kingdom. Also if the Commonwealth citizen, having been refused admission, entered the United Kingdom, he was under s 4 of the Act guilty of an offence which continued while he was in the United Kingdom and under s 14 he was liable on summary conviction to be fined, or imprisoned. The six months limitation under s 104 of the Magistrates’ Courts Act 1952 would not operate to bar a prosecution because the offence was continuing. He could, therefore, be prosecuted at any time while he remained in the United Kingdom, and, if he was convicted and recommended by the court for deportation under s 7 of the 1962 Act, a deportation order could be made by the Secretary of State under s 9. Thus, in the case of a person who had been refused admission, even if the time for giving directions for removal had passed by, there might still be a prosecution and conviction leading to deportation. In the case of a person admitted subject to conditions, if he remained in the United Kingdom in breach of a condition, there was (apart from the special provisions of Part II of Sch 1 relative to seamen and stowaways) no power for the immigration officer to give directions for removal of such a person, but he could be prosecuted at any time under ss 4 and 14 for the continuing offence, and if he was convicted and recommended by the court for deportation under s 7 a deportation order could be made by the Secretary of State under s 9.
Lord Diplock said: ‘Under our system of Parliamentary government what Parliament enacts are not policies but means for giving effect to policies. Those means often involve imposing on private citizens fresh obligations or restrictions on their liberties to which they were not previously subject at common law. The constitutional function of the courts in relation to enacted law is limited to interpreting and applying it. It is the duty of the judge to ascertain what are the means which Parliament has enacted by the Act. In construing the enacting words he may take account of what the Act discloses as the purpose that those means were intended to achieve and, in the case of ambiguity alone, he may interpret them in the sense in which they are more likely to promote than hinder its achievement. But it is no function of a judge to add to the means which Parliament has enacted in derogation of rights which citizens previously enjoyed at common law, because he thinks that the particular case in which he has to apply the Act demonstrates that those means are not adequate to achieve what he conceives to be the policy of the Act.
To do so is not to carry out the intention of Parliament but to usurp its functions. The choice of means is itself part of the Parliamentary choice of policy. It represents the price, by way of deprivation of freedom to do or not to do as they wish, which Parliament is prepared to exact from individual citizens, to promote those objects to which the Act is directed. To raise the price is to change the policy – not to give effect to it. If the policy is to be changed it is for Parliament not the courts to change it – as Parliament has in fact changed the policy of the Commonwealth Immigrants Act 1962, by the amending Act of 1968 which makes it an offence for Commonwealth citizens to do what the respondent did in 1967. This is what Parliament has also done in numerous Finance Acts which have followed on decisions of your Lordships’ House in cases which have brought to light inadequacies in the enacted means of raising public revenue. In each of those cases the method adopted by the taxpayer of avoiding the incidence of taxation involved concerted action with at least one other person, and the decisions of your Lordships’ House in them are irreconcilable with the proposition for which the prosecution contends in the instant appeal.’ Lord Diplock spoke of ‘the common law rights of British subjects . . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm.’
Lord Diplock
[1970] 3 All ER 97, [1972] AC 60, [1970] 3 WLR 501, 54 Cr App Rep 460, 134 JP 622
Commonwealth Immigrants Act 1962 3
England and Wales
Cited by:
Cited – South Wales Electricity Plc v The Director General of Electricity Supply ChD 22-Oct-1999
An electricity company which also operated also as a water supplier did not have the power to issue coin operated meters which were capable of metering and charging for both electricity and water supplies. The words allowing the company to install . .
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 – 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 – Lukaszewski v The District Court In Torun, Poland SC 23-May-2012
Three of the appellants were Polish citizens resisting European Arrest Warrants. A fourth (H), a British citizen, faced extradition to the USA. An order for the extradition of eachhad been made, and acting under advice each filed a notice of appeal . .

Lists of cited by and citing cases may be incomplete.
Updated: 20 August 2021; Ref: scu.183188

Liyanage v The Queen: PC 1967

(Ceylon) The appellants had been convicted of grave criminal offences under laws of the Parliament of Ceylon. The Act under which they were convicted was passed after an abortive coup, and deprived the appellants retrospectively of their right to trial by jury providing for their trial by three judges appointed by the Minister, imposed a minimum sentence of ten years, and provided for forfeiture of their property.
Held: The convictions were quashed by the Privy Council on the footing that the laws offended against Ceylon’s written constitution. It offended fundamental principles which had been inherited into the Ceylon constitutional framework. The Ceylon (Constitution) Order in Council, which contained the phrase ‘laws for peace, order and good government’ coupled with the Ceylon Independence Act were intended to and did give the full legislative powers of a sovereign independent state. The Independence Act provided for certain limits on UK legislation which had previously been enacted and for the removal of a bar to enactments repugnant to UK laws.
‘Therefore the legislative power of Ceylon is still limited by the inability (which it inherits from the Crown) to pass laws which offend against fundamental principles. This vague and uncertain phrase might arguably be called in aid against some of the statutes passed by any Sovereign power. And it would be regrettable if the procedure adopted in giving independence to Ceylon has produced the situation for which the appellants contend.
In view of their Lordships, however, such a contention is not maintainable. Before the passing of the Colonial Laws Validity Act, 1865, considerable difficulties had been caused by the over-insistence of a Colonial judge in South Australia that colonial legislative Acts must not be repugnant to English law (‘The Statute of Westminster and Dominion Status’ by K. C. Wheare [the 4th edn, pp, 75, 76, 77 are referred to in a footnote to the report. Sir Kenneth Wheare was a distinguished Rector of Exeter College Oxford] ). That Act was intended to and did overcome the difficulties. It provided that colonial laws should be void to the extent in which they were repugnant to an Act of the United Kingdom parliament applicable to that colony, ‘but not otherwise’ (s.2) and that they should not be void or inoperative on the ground of repugnancy to the law of England (s.3).
‘The essential feature of this measure is that it abolished once and for all the vague doctrine of repugnancy to the principles of English law as a source of invalidity of any colonial Act… The boon thus secured was enormous; it was now necessary only for the colonial legislator to ascertain that there was no Imperial Act applicable and his field of action and choice of means became unfettered.’ (‘The Sovereignty of the British Dominions’ by Prof. Keith [the footnote refers to an edition of 1929, p. 45] )
Their Lordships cannot accept the view that the legislature while removing the fetter of repugnancy to English law, left in existence a fetter of repugnancy to some vague unspecified law of natural justice. The terms of the Colonial Laws Validity Act and especially the words ‘but not otherwise’ in section 2 make it clear that Parliament was intending to deal with the whole question of repugnancy. Moreover their Lordships doubt whether Lord Mansfield was intending to say that what was not repugnant to English law might yet be repugnant to fundamental principles or to set up the latter as a different test from the former. Whatever may have been the possible arguments in this matter prior to the passing of the Colonial Laws Validity Act, they are not maintainable at the present date.’
Lord Pierse: ‘Blackstone in his Commentaries said: ‘Therefore a particular act of the legislature to confiscate the goods of Titius , or to attaint him of high treason, does not enter into the idea of a municipal law: for the operation of this act is spent upon Titius only and has no relation to the community in general: it is rather a sentence than a law.’
If such Acts as these were valid the judicial power could be wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’
Lord Pierse
[1967] 1 AC 259
England and Wales
Citing:
Cited – Campbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .

Cited by:
Cited – Chagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .

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

Salvesen v Riddell and Another: SCS 15 Mar 2012

Second Division – The court allowed an appeal under section 88(1) of the 2003 Act from a decision of the Scottish Land Court. The section was incompatible with the European Convention on Human Rights. The Court proceeded on the basis that section 72 was enacted as an anti-avoidance measure. But on that basis that it was inappropriate because of its excessive effect and its arbitrary scope. The Lord Justice Clerk said that it was excessive because, if the landlord should fail to obtain an order of the Land Court under section 72(9), the general partner is given a 1991 Act tenancy of the holding, with all the adverse consequences to the landlord that this involves, and the landlord is also exposed to the tenant’s contingent right to buy.
Lord Justice Clerk Gill, Lord Osborne and Lord Nimmo Smith
[2012] ScotCS CSIH – 26, 2012 Hous LR 30, 2012 GWD 12-234, 2013 SC 69, 2012 SCLR 403, 2012 SLT 633
Bailii
Agricultural Holdings (Scotland) Act 2003 88(1), European Convention on Human Rights 1
Scotland
Citing:
At Scottish Land Court – Salvesen v Riddell SLC 29-Jul-2010
SLC Agricultural holdings – limited partnership tenancy – limited partner being agent of landlord – notice of dissolution of partnership validly given – notice given on 3 Feb 2003 – expected change of legislation . .

Cited by:
At Court of Session – Salvesen v Riddell and Another; The Lord Advocate intervening (Scotland) SC 24-Apr-2013
The appellant owned farmland tenanted by a limited partnership. One partner gave notice and the remaining partners indicated a claim for a new tenancy. He was prevented from recovering possession by section 72 of the 2003 Act. Though his claim had . .
At SCS – Salvesen v Riddell and Another SCS 6-Jan-2015
The appellant enrolled a motion requesting payment by the Land court of the costs occasioned in a long running legal dispute. . .

Lists of cited by and citing cases may be incomplete.
Updated: 12 August 2021; Ref: scu.452231

Regina v Her Majesty’s Treasury, Ex parte Smedley: CA 19 Dec 1984

The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before both Houses of Parliament would, if approved and then made, be ultra vires.
Held: The court, exercising restraint, did have power to intervene where it would be too late if it waited until the action was complete. Nevertheless: ‘I am quite unable to hold that an Order in Council in the terms of the draft would be ultra vires the order-making power. On the contrary, I think that it would quite plainly be intra vires. I would dismiss the appeal.’
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before both Houses of Parliament would, if approved and then made, be ultra vires.
Held: The court, exercising restraint, did have power to intervene where it would be too late if it waited until the action was complete. Nevertheless: ‘I am quite unable to hold that an Order in Council in the terms of the draft would be ultra vires the order-making power. On the contrary, I think that it would quite plainly be intra vires. I would dismiss the appeal.’ and
. . ‘Furthermore, whilst Parliament is entirely independent of the courts in its freedom to enact whatever legislation it sees fit, legislation by Order in Council, statutory instrument or other subordinate means is in a quite different category, not being Parliamentary legislation. This subordinate legislation is subject to some degree of judicial control in the sense that it is within the province and authority of the courts to hold that particular examples are not authorised by statute, or, as the case may be by the common law, and so are without legal force or effect.’
Sir John Donaldson MR, Slade LJ, Lloyd LJ
[1985] 1 QB 657, [1984] EWCA Civ 7
Bailii
European Communities Act 1972 1(2)
England and Wales
Citing:
Cited – Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd CA 1923
The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be . .
Cited – Bulmer (HP) Ltd v Bollinger SA CA 1974
The plaintiff complained that the respondent had described its drink ‘Babycham’ as a champagne perry, which it said was a misuse of the appellation ‘champagne’.
Held: The court considered the effect of European legislation on the law of . .
Cited – Regina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .

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 – 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 – 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 – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 2-May-2008
The applicant sought leave to bring judicial review of the prime minister’s decsion not to hold a referendum on the ratification of the treaty of Lisbon.
Held: The claimant had arguable points under the 2000 Act and otherwise, and permission . .
Cited – 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 – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.187512

Bethel and Others v The Attorney General of The Commonwealth of Bahamas: PC 24 Oct 2013

(Bahamas) issues as to the proper construction of the Acquisition of Land Act (cap 252) and the related provisions of the Constitution.
Lord Mance, Lord Kerr, Lord Clarke, Lord Carnwath, Lord Hughes
[2013] UKPC 31
Bailii
England and Wales

Updated: 10 August 2021; Ref: scu.517664

Willers v Joyce and Another (Re: Gubay (Deceased) No 1): SC 20 Jul 2016

Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious prosecution could be committed in a prosecution of civil proceedings. The case came before the Court under the leapfrog certificate system.
Held: The appeal succeeded (Lords Neuberger of Abbotsbury PSC, Mance, Sumption, Reed JJSC dissenting) It was unjust for a person to suffer injury as a result of the malicious prosecution of legal proceedings for which there was no reasonable ground and not to be compensated for the injury intentionally caused by the person responsible for it. The tort of malicious prosecution could be committed by the commencement of civil proceedings.
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke, Lord Wilson, Lord Sumption, Lord Reed, Lord Toulson
[2016] UKSC 43, UKSC 2015/0154, [2016] 3 WLR 477, [2016] WLR(D) 401
Bailii, Bailii Summary, SC (43), SC Summary (43), SC (44), SC Summary (44), Bailii Summary, WLRD
Administration of Justice Act 1969 12
England and Wales
Citing:
Appeal from – 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 – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
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 – Atwood v Monger 1658
Atwood brought an action upon the case against Monger, for causing a false presentment to be made against him before the Conservators of the River of Thames, for suffering 8 loads of earth to fall into the river of Thames, and obteins a verdict ; . .
Cited – Waterer v Freeman 1792
The court considered whether the double execution on goods for a debt was a tort. . .
Cited – Cotterell v Jones And Ablett 25-Nov-1851
A claim was made against two third parties for maliciously commencing an unfounded action against the plaintiff using the name of Osborne, and knowing him to be a pauper. The action was non-suited without, so far as appeared, any order for costs . .
Cited – Johnson v Emerson 1871
Cleasby B recognised that the tort of malicious prosecution could be committed in the malicious presentation of a winding up petition. The effect of presentation of such a petition was immediately damaging to the company which was the subject of the . .
Cited – Quartz Hill Consolidated Gold Mining Co v Eyre CA 1883
The court considered whether an action lay without proof of special damage for maliciously presenting a winding up petition.
Held: There was. Though there was no general cause of action for maliciously bringing civil proceedings without . .
Cited – The Walter D Wallet 1893
The vessel was arrested by a defendant who had been, but no longer was, a part owner of the vessel, having forgotten or forgotten the importance of that fact.
Held: Procuring the wrongful arrest of a ship can found a cause of action similar to . .
Cited – Clissold v Cratchley CA 1910
A solicitor had sued out a Writ of fi.fa on an order in favour of his client, unaware that the debt had been paid at the country office of the solicitor, prior to the writ being issued.
Held: An action in tort will be available for setting in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Regina v British Broadcasting Corporation ex parte Quintavelle (PPC for the Prolife Alliance) CA 20-Oct-1997
The applicant stood for Parliament, but the respondent had refused to show his party election broadcast on the grounds of its lack of taste and decency. He had sought to demonstrate the evils of abortion, and now renewed his application for leave to . .
Cited – Savile v Roberts 1792
D had maliciously caused C to be indicted for riot. Following his acquittal C sued D for malicious prosecution. The court affirmed the judgment which had been given for C.
Held: It was irrelevant that D had not been part of a conspiracy. An . .
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 – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .
Cited – Regent Leisuretime Ltd and others v Skerrett and Another CA 4-Jul-2006
The court set aside a first stage wasted costs order made by the judge below against the solicitors Reynolds Porter Chamberlain. The judge had been given no indication of the costs claimed and did not have material on which he could form a view as . .
Cited – Zurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .
Cited – Manifest Shipping Co Ltd v Uni-Polaris Shipping Co Ltd and Others HL 23-Jan-2001
The claimant took out insurance on its fleet of ships (the Star Sea). It had been laid up in its off season. The ship’s safety certificates were renewed before it sailed. It was damaged by fire. The insurers asserted that the ship had been . .
Cited – Purton v Honnor 6-Feb-1798
The claim was for damages for vexatious ejectment. On ‘the court expressing themselves clearly of opinion on the authority of Savile v Roberts 1 Salk 13, that such an action was not maintainable’, counsel for the plaintiff declined to argue the . .
Cited – Sinclair v Eldred 19-Jun-1811
The plaintiff had been arrested on a bill of Middlesex, a device allowing civil proceedings to be commenced in the Court of King’s Bench (rather than the Common Pleas) under the fiction that a trespass had been committed in the County of Middlesex. . .
Cited – Churchill v Siggers 9-Jun-1854
Lord Campbell CJ explained the basis of tortious liability for bringing proceedings maliciously and without reasonable or probable cause: ‘To put into force the process of the law maliciously and without any reasonable or probable cause is wrongful; . .
Cited – Wiffen v Bailey and Romford Urban District Council CA 1915
Non-compliance with a Public Health Act 1875 notice did not necessarily and naturally involve damage to the defendant’s fair name.
Buckley LJ summarised the effect of the Quartz Hill case: ‘So the exception of civil proceedings, so far as they . .

Cited by:
See Also – 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. . .
See Also – Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
See Also – Willers v Joyce and Another Re: Gubay, Deceased ChD 23-May-2017
Defendants’ application to strike out elements of the claimants re-re-amended particulars of claim. . .
See Also – Willers v Joyce and Others ChD 12-Apr-2019
Application to determine the admissibility of evidence on which the applicant executors wish to rely in an application for costs against the respondents under s.51 of the Senior Courts Act 1981. The Contested Material comprises references made in . .
See Also – Willers v Joyce and Others ChD 8-Aug-2019
Claim for malicious prosecution and abuse of process . .
Cited – CXZ v ZXC QBD 26-Jun-2020
Malicious Prosecution needs court involvement
W had made false allegations against her husband of child sex abuse to police. He sued in malicious prosecution. She applied to strike out, and he replied saying that as a developing area of law a strike out was inappropriate.
Held: The claim . .
Cited – Gerrard and Another v Eurasian Natural Resources Corporation Ltd and Another QBD 27-Nov-2020
The claimants, a solicitor and his wife, sought damages in harassment and data protection, against a party to proceedings in which he was acting professionally, and against the investigative firm instructed by them. The defendants now requested the . .
Cited – James-Bowen and Others v Commissioner of Police of The Metropolis SC 25-Jul-2018
The Court was asked whether the Commissioner of Police of the Metropolis (‘the Commissioner’) owes a duty to her officers, in the conduct of proceedings against her based on their alleged misconduct, to take reasonable care to protect them from . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.567277

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.
Held: (Baroness Hale of Richmond DPSC, and Lord Kerr of Tonaghmore JSC dissenting) The application failed. It was however common ground that the question now before the court was not whether the majority were correct but whether the issue should be re-opened, and: ‘There is no probability, likelihood or prospect (and, for completeness, in my view also no real possibility) that a court would have seen or would see, in the process of preparation, re-drafting and finalisation of the stage 2B report and in the associated material which can now be seen to have existed, anything which could, would or should have caused the Secretary of State to doubt the General Conclusions, or which made it irrational or otherwise unjustifiable to act on them in June 2004. On that basis, the application to set aside the House of Lords’ judgment by reference to the Rashid and other documents disclosed late must fail.’
Lord Kerr, dissenting, said: ‘If the Rashid documents had been before the House of Lords, the following matters would have had to be squarely confronted: ‘despite the claims for their independence, the consultants had been told in unequivocal terms what the government hoped would be the outcome of their report;
the draft report had to be submitted to BIOT officials who had the opportunity to approve or require amendment of its contents;
much of the science of the report (although not that relating to climatic changes) had been severely criticised by Dr Sheppard;
many of the criticisms of the report by Mr Jenness had been endorsed by Dr Sheppard (even though he was also extremely critical of Mr Jenness);
most importantly, the draft report’s central findings in relation to climate change, couched in conditional terms, had been altered to provide a firm prediction that such changes would take place.
In my view, the collective effect of these revelations is that the appeal might well have been decided differently. The passages from the speeches of the majority which have been quoted earlier, for perfectly understandable reasons, bear no trace of reservation or doubt as to the anticipated consequences of any attempt to resettle the islands. If the members of the House of Lords knew that much of the science of the report was considered to be suspect by the scientist retained by the FCO; that the consultants had been given a clear indication of what the government hoped the report would deliver; that the changes to the conclusions of the preliminary study (which were known) proved to be a mild herald of the more radical changes to the Phase 2B report; that the Chagos Islands were not in an active cyclone belt and that this had a direct bearing on the predictions contained in the report, is it likely that the speeches of the majority concerning the anticipated consequences of an attempt to resettle would have been expressed in such emphatic terms? In my judgment it is not. And if the majority felt compelled, as it surely would, to recognise the lack of certainty in some of the central predictions, is it likely that they would have been prepared to hold as rational a decision to completely deny the Chagossians the right to return to their homeland, simply because a failure to do so would give rise to a campaign that the government should fund resettlement, when it had already been held that they were under no obligation to do so? In my opinion, it is at least distinctly possible that a different view would have been taken by the majority and that the outcome of the appeal would have been different. I would therefore grant the application to re-open the appeal.’
Lord Kerr cited with approval the following summary: ‘A defendant public authority and its lawyers owe a vital duty to make full and fair disclosure of relevant material. That should include (1) due diligence in investigating what material is available; (2) disclosure which is relevant or assists the claimant, including on some as yet unpleaded ground; and (3) disclosure at the permission stage if permission is resisted. . . A main reason why disclosure is not ordered in judicial review is because courts trust public authorities to discharge this self-policing duty, which is why such anxious concern is expressed where it transpires that they have not done so (Fordham, Judicial Review, 6th ed, 2012, p125).’
Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Kerr, Lord Clarke
[2016] WLR(D) 344, [2016] UKSC 35, [2017] AC 300, [2016] HRLR 16, [2016] 3 WLR 157, UKSC 2015/0021
Bailii, Bailii Summary, WLRD, SC, SC Summary
British Indian Ocean Territory (Constitution) Order 2004 9
England and Wales
Citing:
Reconsidered – 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 – 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 . .
Applied – 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 . .
Cited – 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 . .
Evidence emerged – 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 . .
Cited – 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 – Feakins and Another v Department for Environment, Food and Rural Affairs CA 8-Jun-2006
The claimants sought to re-open their appeal saying that the respondent department had failed properly to describe the workings of the clawback scheme under which its claim had been made.
Held: A DEFRA official had provided materially . .
Cited – Bain v The Queen PC 16-Mar-2009
(New Zealand) The defendant had at a previous Privy Council appeal had his conviction for murder overturned. He now challenged the order for a retrial, saying that subsequent disclosures made this unfair.
Held: The order was refused. The . .
Cited – 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 – 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 . .
At CA – 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 . .
Cited – Regina v Secretary of State for the Foreign and Commonwealth Office and Another, ex parte Bancoult Admn 3-Nov-2000
The applicant sought judicial review of an ordinance made by the commissioner for the British Indian Ocean Territory. An issue was raised whether the High Court in London had jurisdiction to entertain the proceedings and grant relief.
Held: . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Cited – Regina v Inland Revenue Commissioners, ex parte MFK Underwriting Agents Ltd CA 1990
Legitimate Expectation once created not withdrawn
The claimant said that a change of practice by the Revenue was contrary to a legitimate expectation.
Held: The Inland Revenue could not withdraw from a representation if it would cause: substantial unfairness to the applicant; if the . .
Cited – Regina v Ministry of Defence ex parte Smith; ex parte Grady CA 3-Nov-1995
Four appellants challenged the policy of the ministry to discharge homosexuals from the armed services.
Held: Where a measure affects fundamental rights or has profoundly intrusive effects, the courts will anxiously scrutinise the decision to . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Edwards and Another, Regina (on The Application of) v Environment Agency and Others SC 15-Dec-2010
Clarification was sought of the costs principles applicable on an application to the House of Lords. The paying party said that it was a requirement of the 1998 Convention under which the application fell, that a remedy should not be available only . .

Lists of cited by and citing cases may be incomplete.
Updated: 08 August 2021; Ref: scu.566209

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 return to the British Indian Ocean Territory Chagos Islands) which was removed by the order, thus exiling them. The respondent had said that it was their intention to secure the return of the applicant to the islands.
Held: The immigration order created an offence to return to the islands without a permit, and it was clear that no permits would be issued. The test of irrationality was to be judged as regards the interests of the islanders. By that standard: section 9 of the Order was irrational on public law grounds and must be quashed for this reason.
Hooper, Cresswell LJJ
[2006] EWHC 1038 (Admin), Times 23-May-2006, [2006] ACD 81
Bailii
British Indian Ocean Territory (Constitution) Order 2004, British Indian Ocean Territory (Immigration) Order 2004
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: . .
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 – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Cited – Trustees Executors and Agency Co Ltd v Federal Comr of Taxation 1933
(High Court of Australia) The court considered the power to create laws for the colonies: ‘The correct general principle is . . whether the law in question can be truly described as being for the peace, order and good government of the Dominion . .
Cited – Zabrovsky v The General Officer Commanding Palestine PC 4-Dec-1946
Mr Zabrovsky’s son, Arie Ben Eliezer, a Palestinian citizen, was detained under emergency powers regulations. He was issued with an order requiring him to leave Palestine. He was then transported to a military detention camp in Eritrea. At the time, . .
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 – Co-operative Committee on Japanese Canadians v Attorney General for Canada PC 1947
Orders in Council were made by the Governor in Canada under the authority of The War Measures Act. One authorised the Minister of Labour to make orders for the deportation to Japan of a specified group of persons aged 16 or over who were resident in . .
Cited – Associated Provincial Picture Houses Ltd v Wednesbury Corporation CA 10-Nov-1947
Administrative Discretion to be Used Reasonably
The applicant challenged the manner of decision making as to the conditions which had been attached to its licence to open the cinema on Sundays. It had not been allowed to admit children under 15 years of age. The statute provided no appeal . .

Cited by:
Appeal from – Secretary of State for the Foreign and Commonwealth Affairs v Bancoult, Regina (on the Application of) CA 23-May-2007
The claimant was a Chagos Islander removed in 1970 to make way for a US airbase. The court had ordered that the islanders be allowed to return, but the appellant had passed an Order in Council effectively reversing the position, and now appealed a . .
At first instance – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) 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 . .
Appeal from – 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 . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 25-Jul-2012
The claimant sought in advance permission to cross examine two civil servants at a forthcoming judicial review. Documents had been leaked and widely published suggesting that the decision now to be challenged had been taken for improper purposes. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 21-Nov-2012
Reasons for decision allowing re-amendment of claim and requiring production of documents by a non-party. . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
See Also – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
Cited – Barclay and Another, Regina (on The Application of) v Secretary of State for Justice and Others SC 22-Oct-2014
Constitutional Status of Chanel Islands considered
The Court was asked as to the role, if any, of the courts of England and Wales (including the Supreme Court) in the legislative process of one of the Channel Islands. It raised fundamental questions about the constitutional relationship between the . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.241651

Attorney General and Another v Great Eastern Railway Company: HL 27 May 1880

An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly provided for in any of the Acts incorporating the companies.
Held: The contract was not ultra vires, but was warranted by the Acts. Powers conferred by statute are taken to include, by implication, a right to take any steps which are reasonably necessary to achieve the statutory purpose: ‘whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorised, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.’
Lord Selborne LC said: The doctrine of ultra vires ‘ought to be reasonably, and not unreasonably, understood and applied, and that whatever may fairly be regarded as incidental to, or consequential upon, those things which the Legislature has authorized, ought not (unless expressly prohibited) to be held, by judicial construction, to be ultra vires.’ Lord Blackburn: ‘where there is an Act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited . . those things which are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited.’
Lord Watson said: ‘I cannot doubt that the principle by which this House in Ashbury tested the power of a joint stock company registered with limited liability under the Companies Act 1862, applies with equal force to the case of a company incorporated by Act of Parliament.’
Lord Blackburn said: ‘where there is an act of Parliament creating a corporation for a particular purpose, and giving it powers for that particular purpose, what it does not expressly or impliedly authorise is to be taken to be prohibited’ and ‘those things that are incident to, and may reasonably and properly be done under the main purpose, though they may not be literally within it, would not be prohibited’.
Lord Selborne LC said: ‘the question in this case is whether, under the Acts of Parliament to which your Lordships’ attention has been called, the Respondent company is authorized and empowered to let for hire to the Southend Company locomotive power and rolling stock. The company claims to be so entitled. The Master of the Rolls and Lord Justice Baggallay thought that it was not so authorized; but Lords Justices James and Bramwell thought otherwise, and they discharged the order for an injunction which the Master of the Rolls had made. The present appeal ta your Lordships is from that decision.
Lord Blackburn explained the position as follows: ‘… where there is an Act of Parliament creating a corporation for a particular purpose, in giving it powers for that particular purpose, what it does not expressly or impliedly authorize is to be taken to be prohibited. .’
Lord Blackburn, Lord Watson, Lord Selborne LC
[1880] UKHL 2, (1880) 5 AC 473, (1880) 5 App Cas 473
Bailii
England and Wales
Citing:
Cited – Ashbury Railway Carriage and Iron Co v Riche HL 1875
A company created under the Act is not created a corporation with inherent common law rights. The memorandum was the company’s charter which could not be departed from save so far as permitted by s12. A contract made by the directors upon a matter . .

Cited by:
Cited – In Re Northern Ireland Human Rights Commission Northern Ireland HL 20-Jun-2002
The coroner intended to hold an inquest into the deaths on the Omagh bombing. The Commission sought the right to be involved on the basis that human rights of interest to it might arise, and the coroner refused, saying that they had no standing to . .
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 – Ward v Commissioner of Police for the Metropolis and others HL 5-May-2005
The claimant had been taken under warrant to a mental hospital, but was found not to be suffering any mental illness. She complained that the arrest was unlawful, since the police officer had not been accompanied by the people named on the warrant. . .
Cited – Attorney General v British Museum ChD 27-May-2005
The trustees brought a claim against the Attorney-General seeking clarification of their duties and powers to return objects which were part of the collection in law, but where a moral duty might exist to return it to a former owner. Here drawings . .
Cited – Roberts v Parole Board HL 7-Jul-2005
Balancing Rights of Prisoner and Society
The appellant had been convicted of the murder of three police officers in 1966. His tariff of thirty years had now long expired. He complained that material put before the Parole Board reviewing has case had not been disclosed to him.
Held: . .
Cited – Looe Fuels Ltd., Regina (on the Application of) v Looe Harbour Commissioners Admn 27-Apr-2007
The claimants sought judicial review of a decision of the defendant harbour masters themselves to install and sell from the harbour all fule for use by boats using it, saying that they had no power to operate such an enterprise.
Held: Whilst . .
Cited – Egan v Basildon Borough Council QBD 26-Sep-2011
The claimant sought a injunction to restrain the defendant council from executing enforcement notices regarding the use of the claimant’s land for residence by several traveller families. He argued that the council had failed to state its exact . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.464871

Independent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another: PC 3 Feb 2005

(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, the result of the change would be that the protections presently guaranteed by the constitution would remain in place, but would no longer be guaranteed, and the change was unlawful. Certain provisions are to be more deeply entrenched. Guarantees of the independence and security of the judiciary are entrenched. The result of the alteration would mean that later amendments to the new court system might be allowed and that independence of the judiciary undermined. The original Referendum Act did not therefore purport to amend the constitution, and was valid: ‘There is a difference in principle between requiring a referendum as part of the legislative process and requiring a referendum which is no more than advisory. The result of the referendum in the latter case imposes no obligation on the legislature.’
[2005] UKPC 3, [2005] 2 AC 356, [2005] 2 WLR 923
PC, Bailii
England and Wales
Citing:
Cited – Attorney General of Australia v The Queen and the Boilermakers’ Society of Australia; Kirby v The Queen and Boilermakers’ Society of Australia PC 1957
When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if . .
Cited – Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
Cited – Kariapper v Wijesinha PC 1967
The legislation at issue imposed ‘civil disabilities’ on Members of Parliament against whom allegations of bribery had been sustained, including the loss of their seats in Parliament. The question arose whether they had been punished.
Held: . .
Cited – Attorney General for Alberta v Attorney General for Canada PC 1947
The Board considered the severability of statutory provisions viewed for constitutionality: ‘The real question is whether what remains is so inextricably bound up with the part declared invalid that what remains cannot independently survive or, as . .

Cited by:
Cited – The Prime Minister of Belize, The Attorney General of Belize v Vellos, Dawson and Others PC 24-Mar-2010
(Belize) Challenge was made to an Act removing certain constititutional rights which Act was passed without a referendum. The Act amending the constitution to require further amendments to follow a referendum did not itself follow the constitutional . .

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

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 signed by the Secretary of State amending primary legislation, are not necessarily the law, but are rather assertions of the executive’s belief as to what the law is. The 2001 Regulations belatedly purported to apply the 1998 Directive, by amending the 1949 Act but ‘So many, so detailed are the amendments that it is like a sculptor crafting a cat out of a dog. ‘ The philosophies of the 1949 Act and of the Directives are not the same. As to the 1972 Act, ‘section 2(2) combined with section 2(4) is an instance of what is sometimes known as a ‘King Henry VIII clause’ . . It is a power granted by Parliament to the Executive to make subordinate legislation which itself counts as if it were primary legislation.’ and ‘Now, is that a paradox? For Parliament is supposed to be supreme . . Therefore, when Parliament has enacted a King Henry VIII clause, by what right do the courts apply a restrictive interpretation? How is it that any doubts must be resolved against the Executive, seeing that Parliament has said that the Executive can make law as if it were Parliament itself? I believe it all depends on what it means to say that Parliament is supreme and on what Parliament is actually taken to have claimed. At bottom, all effective constitutions depend on legitimacy. In the United Kingdom the pre-eminent source of legitimacy is Parliament – what is called the Queen in Parliament – and that has been taken to be so for 350 years at least. Because of that fact it would be extraordinarily difficult to overthrow our constitution by force, yet it is one of immense flexibility and on the whole it has served to protect fundamental rights.’ Could s2(2) of the 1972 Act be used to implement a provision which went beyond what was required by European law? It was essentially a practical section, not one intended to allow the executive substantial extra powers, and ‘section 2(2)(b) does not enable the Executive to make secondary legislation, with the potential to amend or repeal even an Act of Parliament, and to achieve a result not required by a Community obligation, just because its purpose is in some way related to or arises out of that obligation. ‘ The Regulations were ultra vires to the extent that they went beyond the Directive. It was not for the courts to make substitutional legislation. Never has the ECJ suggested that a derogation can somehow be implemented so as to bring about results contrary to Community law.
Peter Prescott QC
[2005] EWHC 210 (Ch), Times 10-Mar-2005
Bailii
Registered Designs Act 1949 8(5), Directive 98/71/EC of 13 October 1998 on the legal protection of designs, Registered Designs Regulations 2001, European Communities Act 1972 2
England and Wales
Citing:
Cited – Ipswich Clothworkers’ Case; Ipswich Taylors v Sherring 1614
The king’s power to create corporations and to order trade did not include a power to make a monopoly, for that is to take away free trade which is the birthright of every subject. A trader creating a new invention could be granted a charter by the . .
Cited – East India Co v Sandys (or Sands); The Case of Monopolies 1602
It is the nature of a patent to enable persons acting as a corporation ‘to enjoy and apply to trade all the privileges derived from being a body corporate. . .
Cited – The British Broadcasting Corporation v Johns (HM Inspector of Taxes) CA 5-Mar-1964
The BBC claimed to be exempt from income tax. It claimed crown immunity as an emanation of the crown. The court had to decide whether the BBC was subject to judicial review.
Held: It is not a statutory creature; it does not exercise statutory . .
Cited – McKiernon v Secretary of State for Social Security CA 26-Oct-1989
A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination . .
Cited – Regina v Secretary of State for Social Security, Ex parte Britnell (Alan) HL 1991
The applicant claimed and was paid benefits. There was later determined to have been an overpayment. A sum was recovered by deductions, but then he was granted only supplementary allowance. No deductions could be made from that, but the respondent . .
Cited – Thoburn v Sunderland City Council etc Admn 18-Feb-2002
Various shopkeepers appealed convictions for breach of regulations requiring food sold by weight to be described in metric amounts. They claimed that the Regulations made under the 1985 Act, to the extent that they were inconsistent with it . .
Cited – Regina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
Cited – Flaminio Costa v ENEL (Procedure) ECJ 15-Jul-1964
‘The transfer by the states from their domestic legal system to the Community legal system of their rights and obligations arising under the Treaty carries with it a permanent limitation of their sovereign rights, against which a subsequent . .
Cited – Anisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
All Public Law Challenges are For a 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 – 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 – Hayward v Cammell Laird Shipbuilders Ltd (No. 2) HL 1988
A woman complained that she was not being paid as much as male colleagues who were doing work of equal value. An Act of Parliament had made certain provisions in that regard. Later, that Act had been amended for the purpose of complying with . .
Cited – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
Cited – Commission v United Kingdom (Judgment) ECJ 8-Jun-1994
ECJ Despite the limited character of the harmonization of rules in respect of collective redundancies which Directive 75/129 was intended to bring about, national rules which, by not providing for a system for . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .
Cited – Addison v Denholm Ship Management (UK) Ltd EAT 1997
An issue before the EAT was whether regulations made under section 2(2) of the 1972 Act applied to the crew of a floating hotel/ship in the North Sea.
Held: According to European law the UK could choose whether or not to apply employment . .
Cited – Attorney General and Another v Great Eastern Railway Company HL 27-May-1880
An Act of Parliament authorised a company to construct a railway. Two other companies combined and contracted with the first to supply rolling stock. An injunction was brought to try to restrain this, saying that such a contract was not explicitly . .
Cited – Regina v Secretary of State for Trade and Industry ex parte Orange Personal Communications Ltd and Another Admn 25-Oct-2000
Once rights by way of licences had been granted to a party by virtue of a statute, an amendment to those licences required the Secretary to be explicit with Parliament when altering the licences. The Act provided clear rules for making amendments to . .
Cited – Perth and Kinross Council v Tony Donaldson and 14 Others Newtown Construction Scotland Ltd Meldru EAT 30-Oct-2003
EAT Transfer of Undertakings – Acquired rights directive
The European Acquired rights directive sought to protect the rights of employees on the a transfer of a business to another employer. It was . .
Cited – Betts and others v Brintel Helicopters Ltd and KLM Era Helicopters (UK) Ltd CA 26-Mar-1997
There was no transfer of undertaking where only the employees and no other assets of the business had been transferred. . .
Cited – 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 . .
Cited – Daymond v South West Water Authority HL 1976
A statutory instrument required a rating authority to collect a charge referable to sewerage services ‘from every person who is liable to pay the general rate in respect of a hereditament’. A householder whose property was not connected to a sewer . .
Cited – Panagiotis Markopoulos and Others v Ypourgos Anaptyxis and Soma Orkoton Elegkton. ECJ 7-Oct-2004
The ECJ considered the interpretation of Article 15 of a directive (84/253/EEC) concerning who could be allowed to audit companies’ annual accounts, intended to harmonise the national laws of the member states and to require that none but approved . .
See Also – Oakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .

Cited by:
See Also – Oakley Inc v Animal Ltd. and others PatC 16-Mar-2005
. .
Appeal from – Oakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.222796

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.
Lord Bingham of Cornhill, Lord Hoffmann, Lord Hope of Craighead, Lord Carswell, Lord Brown of Eaton-under-Heywood
[2006] UKPC 20, [2006] 1 WLR 3343
Bailii
England and Wales
Cited by:
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 – Loughlin, Re Application for Judicial Review SC 18-Oct-2017
The court was asked as to the circumstances in which sentences passed on offenders who have given assistance to prosecuting authorities should be referred back to the sentencing court under section 74 of the Serious Organised Crime and Police Act . .
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, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.241470

Carnduff v Inspector Rock and Chief Constable West Midlands Police: CA 11 May 2001

The claimant was a police informer. Over several years he had given and been paid for information. He claimed that on one occasion he had given information which had led to the arrest of a major criminal, but the police denied that any information from him had formed a significant element in his arrest. They did not pay him, and he claimed in contract. The claim was struck out on the basis that it was embarrassing or abusive under rule 3.4, and he appealed.
Held: The appeal was dismissed. No court could investigate such a claim without becoming involved in examining in detail delicate and sensitive issues which would transfer the business of investigating and catching serious criminals into the public glare. It would, in this case, but not necessarily in every such case, be against public policy to allow that public investigation. The action should be stayed because no disclosure could be made of relevant documents in such a way as to enable the action to be properly determined.
Laws LJ said: ‘It seems to me that these matters cannot be litigated consistently with the public interest; and if that is so there is a plain jurisdiction to strike out the claim as embarrassing or abusive under CPR r3.4. See what is involved. If the disputes which they generate were to be resolved fairly by reference to the relevant evidence – and there is no other legitimate judicial means of proceedings – the court would be required to examine in detail the operational methods of the police as they related to the particular investigation in question.’ and ‘it is to my mind inevitable that the court’s duty would be to hold that the public interest in withholding the evidence about it outweighed the countervailing public interest in having the claim litigated on the available relevant evidence. In reality such a position could only be avoided if the police made comprehensive admissions which absolved the court from the duty to enter into any of these issues. But a case which can only be justly tried if one side holds up its hands cannot, in truth, be justly tried at all.’
Lord Justice Waller, Lord Justice Laws And Lord Justice Jonathan Parker
Times 30-May-2001, Gazette 21-Jun-2001, [2001] EWCA Civ 680, [2001] 1 WLR 1786
Bailii
Civil Procedure Rules 3.4
England and Wales
Cited by:
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .
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 – Carnduff v The United Kingdom ECHR 10-Feb-2004
Admissibility – The applicant is a registered police informer. He commenced an action seeking to recover payment for information that he supplied to the West Midlands police. . .
Cited – ‘Laurence’ v Commissioners of Police for the Metropolis CA 13-Feb-2006
The claimant had been a police informer. He considered that he and his family had not been properly protected against the risks he incurred. . .
Cited – Haralambous v St Albans Crown Court and Another Admn 22-Apr-2016
This judicial review raised for express decision whether a person whose premises have been searched and whose property seized under a search warrant must have enough information grounding the warrant to judge its lawfulness and the retention of the . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – 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, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.78909