Syrian Lebanese Commercial Bank Sal v Council Of The European Union: ECFI 4 Feb 2014

ECFI Foreign policy and security policy – Restrictive measures against Syria – Freezing of funds – Adaptation conclusions – time – Manifest error of assessment – Obligation to state reasons – Right to effective judicial protection – Rights of the defense

T-174/12, [2014] EUECJ T-174/12
Bailii
European

International

Updated: 01 December 2021; Ref: scu.522474

Ivleva v Yates: FD 4 Mar 2014

By an application Mrs Ivleva (formerly Yates) sought (i) recognition in this jurisdiction of a divorce granted in Ukraine in respect of her marriage to Mr Yates and (ii) the dismissal of divorce proceedings brought in this jurisdiction by Mr Yates.
Held: Justice to the husband required that recognition of the Ukrainian divorce be refused. Having regard to the nature of the proceedings and all the circumstances, the wife did not take reasonable steps to give the husband notice of the Ukrainian proceedings. ‘this conclusion does not represent any lack of comity between the two jurisdictions. In my view the approach to an application of this kind should not be governed exclusively by pragmatic considerations, although these will weigh heavily. The exercise of discretion must also be informed by a sense of basic fairness when considering the obtaining of an order that is of great importance to most people. Plain dealing must count for something, and it would be undesirable if a party who is fully participating in proceedings in one jurisdiction can unilaterally start proceedings in another and then expect recognition of a divorce effectively obtained in secret’

Peter Jackson J
[2014] EWHC 554 (Fam)
Bailii
Family Law Act 1986 45
Citing:
CitedDuhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .

Cited by:
CitedLiaw v Lee (Recognition of Divorce) FD 3-Jun-2015
The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 01 December 2021; Ref: scu.522289

Scher and Others v Policyholders Protection Board and Others Ackman v Same: HL 1 Sep 1993

The Court of Appeal had defined the expression ‘any liability . . under the terms of any policy’ in wide terms. An insurance policy is a UK one, if the obligations to be performed might have been part of a UK operation.
Lord Mustill criticised an attempt by the judge to construe a statute in a vacuum divorced from any proper factual basis.

Lord Mustill
Independent 16-Jul-1993, Times 16-Jul-1993, Gazette 01-Sep-1993, Gazette 19-Jan-1994, [1994] 2 AC 57
Policyholders Protection Act 1975 4(2), Insurance Companies Act 1982 96(1), Third Party (Rights Against Insurers) Act 1930
England and Wales
Cited by:
CitedAitken v Financial Services Compensation Scheme Limited SCS 30-May-2003
. .

Lists of cited by and citing cases may be incomplete.

Insurance, International

Updated: 30 November 2021; Ref: scu.89046

United Zinc and Chemical Co v Britt: 1922

There was no evidence of children being in the habit of going near the poisoned pool at issue. Speaking of trespassers, Holmes J said ‘the owner of the land would have owed no duty to remove even hidden danger; it would have been entitled to assume that they would obey the law and not trespass’

Holmes J
(1922) 258 US 268
United States
Cited by:
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .

Lists of cited by and citing cases may be incomplete.

Negligence, International

Updated: 29 November 2021; Ref: scu.181336

In re LC (Children): SC 15 Jan 2014

The test for determining whether a child was habitually resident in a place is whether there was some degree of integration by her (or him) in a social and family environment there, may the court, in making that determination in relation to an adolescent child who has resided, particularly if only for a short time, in a place under the care of one of her parents, have regard to her own state of mind during her period of residence there in relation to the nature and quality of that residence? In my view this is the principal question raised by these appeals.

Lady Hale, Deputy President, Lord Wilson, Lord Sumption, Lord Toulson, Lord Hodge
[2014] UKSC 1, [2014] Fam Law 408, [2014] 1 All ER 1181
Bailii
Hague Convention on the Civil Aspects of International Child Abduction 1980, Child Abduction and Custody Act 1985
England and Wales
Cited by:
CitedRe B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 28 November 2021; Ref: scu.519756

Kinderis v Kineriene: FD 18 Dec 2013

This is a public judgment to highlight a now chronic problem with regard to the provision of legal aid in cases of alleged international child abduction by a parent to this country. These are some of the most grave cases which come before our family courts. They may, and usually do, involve very serious issues indeed for both parents and for the child or children concerned.

Holman J
[2013] EWHC 4139 (Fam)
Bailii
England and Wales

Legal Aid, Children, International

Updated: 28 November 2021; Ref: scu.519685

Godfray v Godfray: PC 1865

It is not legitimate to import the principles of English law into Jersey law relating to property rights, even if in any case this could be done.

(1865) 3 Moo PC Privy Council Cases, 316
England and Wales
Cited by:
CitedSnell v Beadle (nee Silcock) PC 29-Jan-2001
(Jersey) The parties had entered into an agreement giving vehicular rights of way over B’s land. She alleged however that she had been misled into signing it. S sought to enforce it. Jersey law still depended upon the customary law of Normandy, and . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 28 November 2021; Ref: scu.182801

Council of The European Union vManufacturing Support and Procurement Kala Naft Co, Tehran: ECJ 28 Nov 2013

ECJ Appeal – Restrictive measures against the Islamic Republic of Iran with the aim of preventing nuclear proliferation – Measures directed against the Iranian oil and gas industry – Freezing of funds – Obligation to state reasons – Obligation to substantiate the measure

ECLI:EU:C:2013:776, [2013] EUECJ C-348/12
Bailii
European

International

Updated: 26 November 2021; Ref: scu.518754

In re Banque des Marchands de Moscou (Koupetschesky) (No 2): CA 1954

A Russian bank operated in Russia. It had no branch in England, but did have an account, in credit, with a bank in London. On December 15, 1917 the bank was nationalized by a decree of the soviet government. On December 16th 1917, two documents were signed, purporting to be orders from the Russian bank to the one in London directing it to pay to the order of O, a russian, andpound;10,000 in the one case and andpound;2000 in the other. The Russian bank was dissolved under a Russian degree in or about January 1918, and any liability of the banker to O was extinguished in Russian law. On May 30 1932 after the dissolution of the russian bank a winding up order in respect of it was made in England under the Companies act 1929 section 338. On September 21, 1932, O, being then domiciled in France, lodged a proof in the winding up in respect of an alleged that the andpound;12,000 being the aggregate of the two sums of andpound;10,000 and andpound;2000. No application for leave to serve a writ out of the jurisdiction for the purpose of recovering either of the two sums was made. O died and assets having come into the hands of the liquidator and the liquidator having rejected the proof on November 12 1952, O’s widow and administratrix applied to the court by summons dated December 3 1952, to reverse the liquidator’s decision.
Held: The debts of andpound;10,000 and andpound;2,000 were locally situate in Russia where the russian bank had resided, and even if the debts could have been recovered in England or by action instituted in england, that fact would not have made them locally situate in England ; and accordingly, the debts remained subject to the nationalisation and other degrees of the Soviet government, and the proof was rightly rejected.
A chose in action must be regarded as situated in a country where it is enforceable. A possibility of serving process out of the jurisdiction under Order 11 does not have the effect of altering the local situation of a chose in action so as to bring it within the jurisdiction.

Romer LJ
[1954] 2 All ER 746, [1954] 1 WLR 1108, 98 Sol Jo 557
England and Wales
Cited by:
CitedWight, Pilling, Mackey v Eckhardt Marine GmbH PC 14-May-2003
(Cayman Islands) An international bank went into liquidation in the Cayman Islands, with liabilities in Bangladesh. A new bank was created in Bangladesh, and the applicants sought to make the new bank liable, and through them the liquidators.
Banking, Insolvency, International

Updated: 25 November 2021; Ref: scu.183831

Macklin v Revenue and Customs: FTTTx 10 Oct 2013

FTTTx INCOME TAX – UK-USA Double Tax Agreement SI 2002/2848 – whether pension income from the World Bank’s retirement scheme was eligible for relief from UK income tax as income from a ‘pension scheme established in’ the USA for the purposes of the Agreement – articles 17(1)(b) and 3(1)(o) considered – held the scheme was not ‘established in’ the USA because it was not established under and in conformity with the USA’s tax legislation relating to pension schemes
PROCEDURE – whether an assessment to recover tax repaid on the now-disputed basis that the income was eligible for relief under the Agreement was competent – section 29 TMA considered – held the assessment was competent as a discovery assessment and that the conditions in both s.29(4) and s.29(5) were satisfied – appeal dismissed

[2013] UKFTT 554 (TC), [2014] SFTD 290, 16 ITL Rep 355
Bailii
England and Wales

Income Tax, International

Updated: 22 November 2021; Ref: scu.516906

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 accordingly justified in law.
Held: The law on aggression was not part of domestic law, and the defence available to the defendants required them to be seeking to prevent a crime under domestic law. The legality of the war in Iraq did not come into the issue: ‘Necessity is potentially a domestic defence to a domestic offence. We have already held that no domestic crime is engaged. The executive’s action in declaring and waging war is, in itself, a lawful exercise of its powers under the prerogative. The court will accordingly have to consider the extent to which necessity might afford a defence to the defendants in the light of their beliefs on that basis. The extent to which their beliefs as to the facts will enable the defendants to establish any of the elements of the defence, in particular the requirement that they should be so acting in relation to people for whom they could reasonably regard themselves as being responsible is not a question we are called upon to answer.’
Lord Bingham pointed to: ‘what has become an important democratic principle in this country: that it is for those representing the people of the country in Parliament, not the executive and not the judges, to decide what conduct should be treated as lying so far outside the bounds of what is acceptable in our society as to attract criminal penalties. One would need very compelling reasons for departing from that principle.’
Lord Hoffmann suggested that defence of justification required that the acts of the defendant: ‘must be considered in the context of a functioning state in which legal disputes can be peacefully submitted to the courts and dispute over what should be law or government policy can be submitted to the arbitrament of the democratic process. In such circumstances, the apprehension, however honest or reasonable, of acts which are thought to be unlawful or contrary to the public interest, cannot justify the commission of criminal acts and the issue of justification should be withdrawn from the jury.’

Lord Bingham of Cornhill, Lord Hoffmann, Lord Rodger of Earlsferry, Lord Carswell, Lord Mance
[2006] 2 CAR 9, [2002] 2 CAR 128, [2006] UKHL 16, Times 30-Mar-2006, [2006] 2 WLR 772, [2007] 1 AC 136, [2006] 2 Cr App Rep 9, [2006] 2 All ER 741, [2007] Crim LR 66
Bailii
Criminal Justice and Public Order Act 1994 68(2)
England and Wales
Citing:
CitedTriquet v Bath 1764
An English secretary to a foreign minister is privileged from arrests, though formerly a trader, and now under very suspicious circumstances. For a servant of a minister of a foreign country to claim protection against prosecution, it is not . .
Appeal fromAyliffe and others v Director of Public Prosecutions Admn 21-Apr-2005
The case concerned actions taken at military bases by way of protest against the Iraq war. Each raised questions arising from the prosecution of the appellants for offences of aggravated trespass. The defendants asserted, among other things, that . .
Appeal fromJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
CitedViveash v Becker 1814
A merchant who was resident in London took on additional duties as consul for a foreign government.
Held: the appointment was not sufficient to protect him from an action upon a mesne process. . .
CitedNovello v Toogood 29-Apr-1823
The defendant a British born subject was a music master and teacher of Italian, but was also employed in part as a chorister in the chapel of a foreign ambassador. He rented a large house, subletting parts. He resisted distraint on the premises for . .
CitedRegina v Commissioner of Police for The Metropolis, ex parte Rottman HL 16-May-2002
The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission . .
CitedHutchinson v Newbury Magistrates Court QBD 9-Oct-2000
The appellant’s conviction for criminal damage to a fence at the Atomic Weapons Establishment at Aldermaston was upheld by the Crown Court; and she appealed by way of case stated to the Divisional Court, maintaining that she had acted in order to . .
CitedDuke of Brunswick v The King of Hanover HL 31-Jul-1948
The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedTaylor v Best 1854
The defendant was a counsellor of a foreign legation, and was subject to the directions of the minister plenipotentiary. In the absence of the minister, he acted up as charge d’affaires. He sought the protection of the 1708 Act.
Held: A person . .
CitedNulyarimma v Thompson 1-Sep-1999
(Federal Court of Australia) The court rejected the automatic assimiliation of the international crime of genocide into national law.
Austlii CRIMINAL LAW – International crime of genocide – Meaning of . .
CitedJH 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 . .
CitedMagdalena Steam Navigation Company v Martin 1859
The defendant asserted that he was entitled to diplomatic privilege to protect him from an action here. He was public minister of a foreign state. He had been received by the Court and given formal accreditation. He had no real property in Britain. . .
CitedEmperor of Austria v Day and Kossuth 1861
The defendants had printed banknotes in London. Kossuth intended to use the notes in Hungary after overthrowing the Emperor of Austria by revolution. The Emperor obtained an injunction restraining the defendants from continuing to manufacture them. . .
CitedRegina v Keyn 13-Nov-1876
The court considered the significance of the existence of an academic consensus as to the meaning of an international convention. Cockburn CJ said: ‘even if entire unanimity had existed in respect of the important particulars to which I have . .
CitedIn re Piracy jure gentium PC 1934
Charges of piracy were brought against Chinese Nationals who had pursued and attacked a cargo junk. They were indicted in Hong Kong for the crime of piracy and found guilty subject to a question of law: ‘Whether an accused person may be convicted of . .
CitedChung Chi Cheung v The King PC 2-Dec-1938
Hong Kong.
Held: The applicant could not invoke any right under the rule of international law which placed upon a state a duty to receive its own national, because that rule was inconsistent with the domestic law. In modern times the idea of . .
CitedFormica Ltd v Export Credits Guarantee Department ComC 19-Oct-1994
A guarantor was entitled to see documents created by the company in chasing a debt. Procedure – specific discovery – common interest relied upon by applicant for discovery – insurance – documents brought into existence in furtherance of a common . .
CitedRe Sandrock and Others 1945
(British Military Court in Holland ) It was submitted that this military court was a court constituted under an Order in Council and was accordingly a domestic court applying English Law. . .
CitedRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
CitedTrendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
CitedJH Rayner (Mincing Lane) Ltd v Department of Trade and Industry 1989
. .
CitedRegina v Renouf CACD 1986
The defendant had used his car to chase some people who had assaulted him and had so manoeuvred his car as to prevent their escape. The statutory defence in the 1967 Act (‘a person may use such force as is reasonable in the circumstances . . in . .
CitedCase Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v United States) ICJ 1986
The prohibition on the use of force in article 2(4) of the United Nations Charter was accepted as jus cogens, a universally recognised principle of international law. . .
CitedSwales v Cox CA 1981
Police officers had entered a house in pursuit of a suspected burglar.
Held: It is a condition of any lawful breaking of premises that the person seeking entry has demanded and been refused entry by the occupier.
Donaldson LJ said: ‘it . .
CitedLegality of the Threat or Use of Nuclear Weapons (Request for Advice and Opinion by Un) ICJ 18-Jul-1996
The threat or actual use of nuclear weapons must only be in accordance with treaties, but if so was not unlawful. . .
CitedRegina v Hill and Hall CACD 1989
The defendants were separately tried for possession of an article with intent to damage property contrary to section 3. In each case the article in question was a hacksaw blade and it was the prosecution case that each of the applicants intended to . .
CitedRegina v Shayler CACD 28-Sep-2001
Duress as Defence not closely Defined
The defendant had been a member of MI5. He had signed the Official Secrets Act, but then disclosed various matters, including material obtained by interceptions under the Interception of Communications Act. He claimed that his disclosures were made . .
CitedRegina v Abdul-Hussain; Regina v Aboud; Regina v Hasan CACD 17-Dec-1998
The law of the defence of duress arising out of threat or circumstances is in need of urgent parliamentary clarification. Appeals were allowed where the defendants hijacked an airplane in order to escape deportation to a hostile country. ‘The . .
CitedRegina v Martin (Colin) CACD 29-Nov-1988
Defence of Necessity has a Place in Criminal Law
The defendant appealed against his conviction for driving whilst disqualified. He said he had felt obliged to drive his stepson to work because his stepson had overslept. His wife (who had suicidal tendencies) had been threatening suicide unless he . .

Cited by:
CitedGentle 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.
CitedRegina v F CACD 16-Feb-2007
The defendant was charged with offences for having been in possession of a document or record containing information of a kind ‘likely to be useful to a person committing or preparing an act of terrorism’. It was thought he was associated with a . .
CitedRegina v Ulcay CACD 19-Oct-2007
The defendant appealed against his conviction, saying that his counsel and solicitors had withdrawn at the last moment on the grounds of professional embarrassment, the defendant having altered his instructions. New lawyers were unwilling to assist . .
CitedGentle, 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 . .
CitedA, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .
CitedBancoult, 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 . .
CitedRegina v Barkshire and Others CACD 20-Jul-2011
Undervover police were agents provocateur
The defendants appealed against their convictions for aggravated trespass, saying that the police had infiltrated their environmental protest group, and that the undercover officer had acted as agent provocateur to entrap them into the offences. . .
CitedBauer and Others v The Director of Public Prosecutions Admn 22-Mar-2013
The appellants had entered Fortnum and Masons to demonstrate against tax avoidance. They appealed against convitions for aggravated trespass.
Held: The statutory question posed by s.68 is whether the prosecution can prove that the trespasser . .
CitedColl v Floreat Merchant Banking Ltd and Others QBD 3-Jun-2014
The court was asked whether it was possible to bring contempt proceedings against a solicitor for the breach of an undertaking other than one given to the court. The parties had been employee and employer. On the breakdown of that relationship, the . .
CitedLord 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 . .
CitedRichardson and Another v Director of Public Prosecutions SC 5-Feb-2014
The defendants had protested against the activities of a shop, by trespassing. They were said to have committed the offence of aggravated trespass under section 68 of the 1994 Act. They objected in part that this infringed their article 10 right of . .
EstablishedAl Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
CitedBancoult, 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.
CitedRoberts and Others v Regina CACD 6-Dec-2018
Sentencing of Political Protesters
The defendants appealed against sentences for causing a public nuisance. They had been protesting against fracking by climbing aboard a lorry and blocking a main road for several days.
Held: The appeals from immediate custodial sentences were . .
CitedNational Highways Ltd v Heyatawin and Others QBD 17-Nov-2021
The court considered allegations of contempt of court by protesters disobeying court injunctions.
Held: The allegations were variously proved, and indeed were largely uncontested. Sentences of imprisonment were imposed ranging up to 6 months: . .

Lists of cited by and citing cases may be incomplete.

Crime, International, Human Rights

Leading Case

Updated: 22 November 2021; Ref: scu.239745

Rex v Rose: 1946

(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents which had been stolen by a defecting clerk who was employed in the embassy and was handed over to the Canadian police.
Held: Rose’s claim that the stolen documents used against him were immune from use was rejected. The general rule was not absolute: it was subject to exceptions, and it could not be invoked by a Canadian citizen in litigation between his government and himself; nor when the documents revealed an abuse of diplomatic privilege by the foreign state which constituted a threat to the safety of the receiving state; nor in cases where no one connected with the foreign state or its embassy claimed any privilege for the documents. Such a claim ‘could not be admitted where the recognition of such immunity was inconsistent with the fundamental right of self-preservation belonging to a State or where the executive had impliedly refused to recognise such immunity.’
Bissonnette J said: ‘International law creates a presumption of law that documents coming from an embassy have a diplomatic character and that every court of justice must refuse to acknowledge jurisdiction or competence with regard to them.’
However: ‘To sum up, I believe that diplomatic immunity is relative; that the Courts must give effect to it and accord its advantage to every diplomatic agent who claims it; that the privilege of taking advantage of the immunity of a foreign State cannot be admitted for a Canadian citizen in litigation between his Government and himself, when he is not part of a diplomatic corps; to impose, through a judicial decision, immunity upon a State which does not claim any, would be casting a slur upon its dignity, its sovereignty, and, through a gesture as ungracious as unexpected, would elevate a simple suit to a degree of international importance and create, at least in theory, a diplomatic conflict contrary to the will of the executive power itself.’

Bissonnette J
Can Dig 1946 76 161, [1947] 3 DLR 618
Canada
Cited by:
DistinguishedFayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .
CitedBancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .
CitedBancoult, 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 . .
CitedBancoult, 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 . .

Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 20 November 2021; Ref: scu.653202

Fayed v Al-Tajir: CA 1987

The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the document could be used in court.
Held: The document enjoyed immunity from use, and the dispute was non-justiciable.

Kerr LJ
[1988] QB 712, [1987] 3 WLR 102, [1987] 2 All ER 396
England and Wales
Citing:
DistinguishedRex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .

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

Lists of cited by and citing cases may be incomplete.

Evidence, International

Updated: 20 November 2021; Ref: scu.653203

DL v EL (Hague Abduction Convention: effect of reversal of return order on appeal): FD 17 Jan 2013

F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K to be habitually resident in the UK, and that her bringing him here was not wrongful, being in pursuance of the court order.
Held: Return was refused. There is now no distinction to be drawn between the test according to our domestic law, the test expounded by the ECJ Court of Justice of the European Union in Proceedings brought by A (Case C-523/07 [2010] Fam 42 and Mercredi v Chaffe (cited above) and the autonomous law of the Hague Convention.
Sir Peter Singer compared the French and English texts of the judgment, which showed that the French text had almost throughout used ‘stabilite’ rather than permanence and in the one place where it did use ‘permanence’ it was as an alternative to ‘habituelle’.

Sir Peter Singer
[2013] EWHC 49 (Fam), [2013] Fam Law 521, [2013] 2 FLR 163
Bailii
Child Abduction and Custody Act 1985, 1980 Hague Convention on the Civil Aspects of International Child Abduction
England and Wales
Citing:
CitedMercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .

Cited by:
At First InstanceRe KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 20 November 2021; Ref: scu.515531

Iranian Offshore Engineering and Construction Co v Council af The European Union: ECFI 6 Sep 2013

ECJ Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Action for annulment – Time-limit for amendment of the form of order sought – Admissibility – Obligation to state reasons – Manifest error of assessment

Pelikanova P
T-110/12, [2013] EUECJ T-110/12
Bailii
European

International, Banking

Updated: 20 November 2021; Ref: scu.515166

Shearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2): HL 1988

Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the official archives of a diplomatic mission’. In the litigation which arose out of its insolvent collapse, the ITC sought to prevent the use in litigation of documents which it claimed were part of its official archives. document: had come into the possession of third parties which had either been stolen from ITC premises or illicitly copied there or obtained by bribery or deceit of its staff. The issue ultimately turned upon the actual or ostensible authority of those who had supplied documents in that category to third parties.
Held: The documents were supplied with the authority of the ITC.
Lord Bridge of Harwich considered articles 24 and 27.2 of the Vienna Convention, saying: ‘Mr Kentridge presented a forceful argument for the defendants based on the proposition that the only protection which the status of inviolability conferred by Article 24 of the Vienna Convention and Article 7(1) of the Order of 1972 affords is against executive or judicial action by the host state. Hence, it was submitted, even if a document was stolen, or otherwise obtained by improper means, from a diplomatic mission, inviolability could not be relied on to prevent the thief or other violator from putting it in evidence, but the mission would be driven to invoke some other ground of objection to its admissibility. I need not examine this argument at length. I reject it substantially for the reasons given by the Court of Appeal. The underlying purpose of the inviolability conferred is to protect the privacy of diplomatic communications. If that privacy is violated by a citizen, it would be wholly inimical to the underlying purpose that the judicial authorities of the host state should countenance the violation by permitting the violator, or anyone who receives the document from the violator, to make use of the document in judicial proceedings.’

Lord Bridge of Harwich
[1988] 1 WLR 16
Vienna Convention on Diplomatic Relations 24 27, International Tin Council (Immunities and Privileges) Order 1972
England and Wales
Citing:
At First InstanceMaclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

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

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Evidence

Updated: 19 November 2021; Ref: scu.510791

Maclaine Watson and Co Ltd v International Tin Council: ChD 1987

Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as ancillary to a Mareva injunction to a conclusion that it cannot be made except as ancillary to such an injunction.’

Millett J
[1987] 3 All ER 886, [1987] 1 WLR 1711
England and Wales
Cited by:
At ChD (Affirmed)Maclaine Watson and Co Ltd v International Tin Council CA 1988
The court asked the extent to which international law forms part of the law of this country. Nourse LJ said: ‘For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of . .
At First InstanceShearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2) HL 1988
Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the . .
See AlsoRe International Tin Council ChD 1987
An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 19 November 2021; Ref: scu.194458

Maclaine Watson and Co Ltd v International Tin Council: CA 1988

The court asked the extent to which international law forms part of the law of this country. Nourse LJ said: ‘For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of the law of this country. In all events if it can be shown there is an established rule which, first, is derived from one or more of the recognised sources of international law and secondly, has already been carried into English law by statute, judicial decision or ancient custom.’

Nourse LJ
[1988] 3 All ER 257, [1988] 3 WLR 1033
England and Wales
Citing:
At ChD (Affirmed)Maclaine Watson and Co Ltd v International Tin Council ChD 1987
Millett J said: ‘The ITC contend there is no jurisdiction to make such an order [an order for discovery of assets] in the absence of a Mareva injunction. It is, however, fallacious to reason from the fact that an order for discovery can be made as . .

Cited by:
Appeal from (affirmed)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 . .
CitedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 19 November 2021; Ref: scu.194459

Deutsche Bank Ag London Branch v Receivers Appointed By The Court and Others: ComC 24 Jul 2020

Rule on a dispute between the parties as to the declarations which should be made following the court’s judgment.

Teare J
[2020] EWHC 2051 (Comm)
Bailii
England and Wales
Citing:
CitedDeutsche Bank Ag London Branch v Receivers Appointed By The Court and Others ComC 2-Jul-2020
Parties disputed the headship of a foreign state (Venezuela), and to ownership of funds held by the bank for that state . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 19 November 2021; Ref: scu.652965

Commission v Finland (External Relations): ECJ 19 Nov 2009

ECJ Failure of a Member State to fulfil obligations Article 307, second paragraph, EC Failure to adopt appropriate steps to eliminate incompatibilities between the bilateral agreements concluded with third countries prior to accession of the Member State to the European Union and the EC Treaty Bilateral investment agreements concluded by the Republic of Finland with the Russian Federation, the Republic of Belarus, the People’s Republic of China, Malaysia, the Democratic Socialist Republic of Sri Lanka and the Republic of Uzbekistan

[2009] EUECJ C-118/07, C-118/07
Bailii
Citing:
OpinionCommission v Finland (External Relations) ECJ 10-Sep-2009
ECJ Opinion – Bilateral investment treaties Article 307 EC. . .

Lists of cited by and citing cases may be incomplete.

European, International

Updated: 19 November 2021; Ref: scu.514423

DL v EL: CA 16 Jul 2013

M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the court order M had acted lawfully, and the later reversal of that order did not work to make the removal unlawful. The court noted that the report in English of the Mercredi case included the word permanent as a condition of ‘habitual residence’, but the original word used in French was ‘stabilite’ which did not carry the same connotation.

Thorpe, Arden, Beatson LJJ
[2013] EWCA Civ 865, [2013] WLR(D) 285
Bailii, WLRD
Child Abduction and Custody Act 1985 Sch 1
England and Wales
Citing:
CitedMercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .

Cited by:
Appeal fromRe KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 17 November 2021; Ref: scu.513393

UST-Kamenogorsk Hydropower Plant Jsc v AES UST-Kamenogorsk Hydropower Plant Llp: SC 12 Jun 2013

Arrangements between the parties owners and operators of a power plant in Kazakhstan required disputes to be arbitrated in London under ICC Rules. That clause was governed by English law, and the remainder by Kazakh law. A ruling by the Supreme Kazakh Court declared the arbitration clause invalid. The contractor began arbitration proceedings in England for a declaration as to its validity. An injunction was granted prohibiting further proceedings in Kazakhstan. The owner appealed.
Held: The appeal failed. Courts in the UK have long held jurisdiction to restrain foreign proceedings brought in breach of an arbitration agreement.

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Toulson
[2013] UKSC 35, [2013] 2 Lloyd’s Rep 281, [2013] 1 WLR 1889, [2013] WLR(D) 232
Bailii, Bailii Summary
Arbitration Act 1996 9
England and Wales
Citing:
CitedWest Tankers Inc v Ras Riunione Adriatica Di Sicurta Spa and others (The Front Comor) HL 21-Feb-2007
A ship had foundered, and the owners disputed their insurance claim. The policy provided for arbitration in London, and one party sought an order to prevent the other commencing proceedings in another EU state in breach of the arbitration agreement. . .
CitedC v D CA 5-Dec-2007
The court considered an appeal under the Bermuda Form of international Liability Insurance which provided for arbitration in London subject to the internal laws of New York. The insurers threatened to challenge under US federal arbitration law in a . .
At first instanceAES Ust-Kamenogorsk Hydropower Plant Llp v Ust-Kamenogorsk Hydropower Plant Jsc ComC 16-Apr-2010
The parties contracte for works relating to a power plant. The applicable law was Khazak, but the agreement provided that any dispute between the parties was to be settled by arbitration in London. The claimant now sought an anti-suit injunction to . .
CitedVale Do Rio Doce Navegacao SA and another v Shanghai Bao Steel Ocean Shipping Co Ltd and Others QBD 14-Apr-2000
An arbitration process which sought to join parties who denied being part of the contract for arbitration could not itself decide the contractual power to enforce the arbitration. Accordingly the High Court had no jurisdiction either to apply the . .
CitedCetelem Sa v Roust Holdings Ltd CA 24-May-2005
The parties were engaged in arbitration proceedings. The claimant had sought and obtained an interim mandatory order intended to prevent the defendant dissipating its assets in anticipation of an adverse ruling. The defendant sought leave to appeal. . .
Appeal fromAES UST-Kamenogorsk Hydropower Plant Llp v UST-Kamenogorsk Hydropower Plant Jsc CA 27-May-2011
The parties disputed the right to prevent a foreign court action where the agreement required arbitration in London . .
CitedArsanovia Ltd and Others v Cruz City 1 Mauritius Holdings ComC 20-Dec-2012
. .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 12 November 2021; Ref: scu.510794

W v X (Jurisdiction In Matters of Parental Responsibility): ECJ 15 Feb 2017

Habitual Residence depends on child’s interests

ECJ Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction in matters of parental responsibility – Regulation (EC) No 2201/2003 – Articles 8 to 15 – Jurisdiction concerning maintenance obligations – Regulation (EC) No 4/2009 – Article 3(d) – Conflicting judgments given in the courts of different Member States – Child habitually resident in the Member State of residence of his mother – The courts of the father’s Member State of residence without jurisdiction to vary a decision that has become final which they adopted earlier concerning the residence of the child, maintenance obligations and contact arrangements

R. Silva de Lapuerta, P
[2017] WLR(D) 113, [2017] EUECJ C-499/15
Bailii, WLRD
Regulation (EC) No 2201/2003 8
European

Children, International

Updated: 11 November 2021; Ref: scu.579667

Banco Santander Totta Sa v Companhia De Carris De Ferro De Lisboa Sa and Others: ComC 4 Mar 2016

The parties, both Portuguese had entered into now disputed interest rate swap agreements which provided for them to be subject to English law and jurisdiction. The bank claimant sought to enforce the agreements, and the defendant argued that, neither party having a connection with England, the matter should be heard in Portugal.
Held: The request for the matter to be dealth with in Portugal failed. Not every aspect of the contract had Portuguese only elements, and article 3 could only be applied if all were.

Blair J
[2016] EWHC 465 (Comm), [2016] WLR(D) 125, [2016] 4 WLR 49
Bailii, WLRD
Convention 80/934/EEC 3(3)

Contract, International, Financial Services

Updated: 11 November 2021; Ref: scu.560753

Omar Othman (Abu Qatada) v The United Kingdom: ECHR 17 Jan 2012

The applicant resisted his proposed deportation to Jordan to face charges of terrorism. He complained was that his retrial in Jordan would amount to a flagrant denial of justice because of a number of factors including a very real risk that incriminating statements against him had been obtained by torture.
Held: His deportation to Jordan would be in violation of article 6. The court adopted the meaning to be given to the phrase ‘flagrant denial of justice’ in the partly dissenting opinion in Mamatkulov, which it said was a stringent test of unfairness: para 260. It was satisfied that the ill-treatment of the witnesses which was alleged amounted to torture. That meant that the two questions it had to consider were whether a real risk of the admission of that evidence was sufficient and, if so, whether a flagrant denial of justice would arise in the applicant’s case. It was conscious of the fact that the Grand Chamber did not find that the test had been met in Mamatkulov. But the applicant’s complaint was not of the general and unspecific kind that was made in that case. It was a sustained and well-founded attack on a State Security Court system that would try him in breach of one of the most fundamental norms of international justice, which was the prohibition on the use of evidence obtained by torture.
Lech Garlicki, P
[2012] ECHR 56, (2012) 32 BHRC 62, (2012) 55 EHRR 1, CE:ECHR:2012:0117JUD000813909
Bailii
European Convention on Human Rights 6
Human Rights
Citing:
See AlsoOmar Othman v The United Kingdom ECHR 26-May-2009
Statement of Facts. The applicant resisted deportation to Jordan to face trial on on terrorism related charges, saying that there was a real risk that the evidence to be presented against him would include evidence obtained by torture. . .
CitedMamatkulov And Askarov v Turkey ECHR 4-Feb-2005
Grand Chamber – while there may have been reasons for doubting whether the applicants would receive a fair trial, there was not sufficient information to show that any possible irregularities in the trial were liable to constitute a flagrant denial . .

Cited by:
CitedSecretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
At ECHROthman v Secretary of State for The Home Department SIAC 6-Feb-2012
Application for bail. . .
JudgmentOthman (Abu Qatada) v The United Kingdom ECHR 9-May-2012
(Press Release) Diplomatic assurances will protect Abu Qatada from torture but he cannot be deported to Jordan while there remains a real risk that evidence obtained by torture will be used against him. . .
At ECHROthman v Secretary of State for The Home Department SIAC 28-May-2012
SIAC (Deportation – Bail Application – Refused) The applicant was held in immigration detention pending a proposed deportation to his native Jordan to face retrial on terrorist charges. Having resisted his . .
At ECHROthman, Regina (on The Application of) v Special Immigration Appeals Commission (SIAC) and Others Admn 9-Aug-2012
The court gave its reasons for refusing the claimant’s applications for habeas corpus and permission to seek judicial review of his detention. He was detained pending deportation to Jordan. He resisted saying that if retried in Jordan, the evidence . .
At ECHROthman (Abu Qatada) v Secretary of State for The Home Department SIAC 12-Nov-2012
The applicant challenged his proposed deportation to Jordan to face perrorism related charges. He said that there was a real risk that the evidence used against him would have been obtained by torture.
Held: His appeal was allowed . .
At ECHROthman (Aka Abu Qatada) v Secretary of State for The Home Department CA 27-Mar-2013
The appellant sought the deportation of the respondent to his home country of Jordan to face trial on terrorism related charges. The respondent said that evidence against him would have been obtained by torture, and challenged re-assurances accepted . .
CitedKapri v The Lord Advocate (Representing The Government of The Republic of Albania) SC 10-Jul-2013
The Court was asked whether it would be compatible with the appellant’s Convention rights within the meaning of the Human Rights Act 1998 for the appellant, who is an Albanian national, to be extradited to Albania. On 7 April 2001, while he was in . .
CitedIsmail, Regina (on The Application of) v Secretary of State for The Home Department SC 6-Jul-2016
The claimant ha been involved in the management of a company operating a ferry in Egypt. The claimant had been acquitted in Egypt of criminal liability, but then convicted in his absence on appeal, after submissions made on his behalf were . .
CitedLord Advocate (Representing The Taiwanese Judicial Authorities) v Dean SC 28-Jun-2017
(Scotland) The respondent was to be extradited to Taiwan to serve the balance of a prison term. His appeal succeeded and the order quashed on the basis that his treatment in the Taiwanese prison system would infringe his human rights. The Lord . .

Lists of cited by and citing cases may be incomplete.

Human Rights, Criminal Practice, International

Leading Case

Updated: 11 November 2021; Ref: scu.465697

Dallah Estates and Tourism Holding Company v Ministry of Religious Affairs, Government Of Pakistan: CA 20 Jul 2009

The claimant sought to enforce an international arbitration award against the defendant in respect of the provision of accommodation for Hajj pilgrims. A without notice order had been made to allow its enforcement, but that had been set aside.
Held: When asked to review an arbitration award made internationally under the Convention, it was important for the court to establish which standard of proof had been applied in the arbitration proceedings. Here there had been no agreement as to the applicable law, and the tribunal had applied ‘those transnational general principles and usages which reflect the fundamental requirements of justice in international trade and the concept of good faith in business’. There is no provision in the Convention requiring a party wishing to challenge an award to make that challenge in the country in which the award was made, and the claimant had itself chosen London to seek to enforce the award. Any discretion to enforce an award despite a continuing objection must be a narrow one. The words of the section were intended to act as a limitation on such a power not to ennable one.

Ward LJ, Rix LJ, Moore-Bick LJ
[2009] EWCA Civ 755, Times 24-Aug-2009, [2009] 30 EG 67, [2009] 2 CLC 84, 125 Con LR 37, [2010] 1 All ER 592
Bailii
Arbitration Act 1996 101, New York Convention
England and Wales
Citing:
Appeal fromDallah Real Estate and Tourism Holding Company v Ministry of Religious Affairs, Government of Pakistan ComC 1-Aug-2008
The claimant had obtained an arbitration award, and a without notice order for its enforcement. The defendant applied for it to be set aside on the basis that no law had been agreed which would set the basis for the arbitration, and that the award . .
CitedSvenska Petroleum Exploration Ab v Lithuania and Another (No 2) CA 13-Nov-2006
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it . .
CitedYukos Oil Company v Dardana Ltd CA 18-Apr-2002
The claimant sought to enforce an arbitration award made in Sweden, even though it had yet to give its final adjudication on the defence under the New York Convention argued by the defendant.
Held: The Act cannot have been intended to give the . .
CitedKanoria and others v Guinness CA 21-Feb-2006
Lord Phillips CJ expressed his own doubts about whether section 103(2) gives the court a broad discretion to allow enforcement of an award where one of the grounds set out in that subsection has been established. . .
DistinguishedWatt (Formerly Carter) v Ahsan HL 21-Nov-2007
The claimant was a Pakistani member of the Labour Party. He had sought selection as parliamentary candidate, but allegations had been made about behaviour of members in the Pakistani community in his ward and the local party had been suspended. A . .
CitedSvenska Petroleum Exploration Ab v Government of the Republic of Lithuania and Another ComC 11-Jan-2005
The claimant sought enforcement of a final award. The Government of Lithuania had not attempted to challenge the tribunal’s first award in Denmark.
Held: Nigel Teare QC said that that, where a person has unsuccessfully contested the issue of . .
CitedPaklito Investment Ltd v Klockner East Asia Ltd 1993
(Hong Kong) The plaintiff sought to enforce a Chinese arbitration award. The other party said it had not been allowed to present its case and resisted enforcement.
Held: The defence succeeded. The court was still asked to to enforce it under . .
CitedChina Agribusiness Development Corporation v Balli Trading 1998
The plaintiff sought to enforce a Chinese award following an arbitration in which the arbitration rules current at the time when the dispute arose rather than the old rules current at the time of agreement had been applied.
Held: The court . .
CitedCarl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
CitedIPCO (Nigeria) Ltd v Nigerian National Petroleum Corporation ComC 27-Apr-2005
A Nigerian arbitration award between two Nigerian companies was first subject to proceedings in Nigeria to set aside the award and subsequently to enforcement proceedings in England.
Held: Gross J refused to consider immediate enforcement. He . .
CitedPeterson Farms Inc v C and M Farming Ltd ComC 4-Feb-2004
The claimant sought a declaration that an award made in an ICC arbitration was made without jurisdiction and void. . .
CitedPeterson Farms v C and M Farming Ltd and Another ComC 5-Sep-2003
. .

Cited by:
Appeal from.Dallah Real Estate and Tourism Holding Company v The Ministry of Religious Affairs, Government of Pakistan SC 3-Nov-2010
The claimant had achieved a judgment in arbitration proceedings abroad against the respondent foreign government regarding contracts providing services for the Holy Places in Saudi Arabia. The contract made no express provision for the nationality . .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 11 November 2021; Ref: scu.349086

Kensington International Ltd v Republic of Congo: CA 7 Nov 2007

The defendants appealed against orders requiring them to disclose documents in an action regarding the payment of bribes, saying that the requirement effectively required them to incriminate themselves.
Held: The appeal failed. The public interest required that those alleged to be in the possession of property belonging to a third party should be allowed to be obliged to divulge their whereabouts. The removal of the privilege against self incrimination could be ‘largely, if not entirely, balanced’ by the disclosed material being made inadmissible in criminal proceedings.
Moore-Bick LJ said that conduct involving dishonest abuse of a position (in which a person is expected to safeguard the financial interests of another person) with a view to gain for himself or another, or causing loss or risk of loss to another, could be described as deception of a kind, ‘since the wrongdoer deliberately deceives the person whose interests he is bound to safeguard by allowing him to believe in his trustworthiness while actively falsifying that belief’.
The question arose whether a person who commits a criminal offence of bribery also thereby commits an offence under section 328. It was argued that the giving of a bribe necessarily involves the briber entering into an arrangement which he knows facilitates the acquisition of criminal property by the recipient, since the bribe, once received, constitutes the latter’s benefit from criminal conduct. The argument was rejected. >br />Moore-Bick LJ said:
‘I accept that section 328 is of broad application, but in my view that seeks to stretch its scope too far. As section 340(3)(b) makes clear, the mental element of the offence includes knowledge or suspicion on the part of the defendant that the property in question is criminal property, but that cannot be the case until it has been acquired by means of criminal conduct. In order for an offence under section 328 to be committed, therefore, the arrangement into which the defendant enters, or in which he becomes involved, must be one which facilitates the acquisition, retention, use or control by another of property which has already become criminal property at the time when it becomes operative. That requirement is not satisfied if the only arrangement into which he enters is one by which the property in question first acquires its criminal character.’

May LJ, Carnwath LJ, Moore-Bick LJ
[2007] EWCA Civ 1128, Times 30-Nov-2007, [2008] 1 Lloyd’s Rep 161, [2007] 2 CLC 791, [2008] 1 All ER (Comm) 934, [2008] 1 WLR 1144, [2008] CP Rep 6
Bailii
Fraud Act 2006 13(1)(a), Proceeds of Crime Act 2002 328(1)
England and Wales
Citing:
See AlsoKensington International Ltd v Republic of The Congo ComC 16-Apr-2003
. .
See AlsoKensington International Ltd v Republic of the Congo CA 13-May-2003
The claimant had obtained judgment against the defendant for US$60m, and had sought a Mareva injunction against the defendant republic’s assets and against the assets of companies through which it operated in the UK. The claimant now appealed . .
See AlsoKensington International Ltd v Republic of the Congo; Glencore Energy UK Limited, Sphynx UK Limited, Sphynx (BDA) Limited, Africa Oil and Gas Corporation, Cotrade SA (Third Parties) ComC 28-Nov-2005
The claimant had taken an assignment of debts owed by the defendant, and obtained judgment in US$121m. They sought to enforce the judgment and obtained third party debt orders against the parties listed.
Held: Officers in the third party . .
See AlsoKensington International Ltd and Another v Republic Of the Congo ComC 26-May-2006
. .
See AlsoKensington International Ltd v Republic of Congo and Another ComC 20-Jul-2006
The claimant sought leave to cross examine an officer of the defendant in connection with his affidavit sworn in search order proceedings. The case had a history of deceit and dishonest oral evidence.
Held: Though such an order would be . .
See AlsoKensington International Ltd v Republic of the Congo ComC 13-Jul-2007
. .

Cited by:
CitedETI Euro Telecom International Nv v Republic of Bolivia and Another CA 28-Jul-2008
The parties were involved in an international investment dispute arbitration. An injunction had been sought to prevent repatriation of assets to Bolivia.
Held: The international system of arbitration was not subject to any national law and did . .
CitedCavell USA, Inc and Randall v Seaton Insurance Company etc CA 16-Dec-2009
The parties had settled terms for concluding business arrangements between them. The agreement released and referred all claims in law and in equity ‘save for fraud’ to the UK courts. The respondents now wanted to bring a case alleging breach of a . .
CitedPhillips v Mulcaire SC 24-May-2012
The claimant worked as personal assistant to a well known public relations company. She alleged that the defendant had intercepted telephone message given by and left for her. The court was asked first as to whether the information amounted to . .
CitedGH, Regina v SC 22-Apr-2015
Appeal against conviction for entering into an arrangement for the retention of criminal funds. The defendant said that at the time of the arrangement there were not yet any criminal funds in existence. A had set up websites intending to con . .

Lists of cited by and citing cases may be incomplete.

International, Human Rights, Crime

Leading Case

Updated: 11 November 2021; Ref: scu.260272

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 the United Kingdom – rather than the states who were its members and the parties to the international treaty – the ITC was the contracting party in the contracts it had entered into with the appellant companies. There was no basis for holding the member states liable for its debts, and, even if in international law any such basis had existed, there would have been no basis for enforcing such a liability in a United Kingdom court. If under international law the (unincorporated) treaty made the ITC the agent of its members when contracting, this too was a liability which a United Kingdom court could not enforce, if it could not be found in the 1972 Order. A claim for the appointment of a receiver over ITC’s assets, including any claims it might have under the treaty to be indemnified by its members in respect of its liabilities to the appellants, failed for similar reasons. An unincorporated treaty can create no rights or obligations in domestic law.
Lord Templeman stressed the inability of United Kingdom courts to enforce unincorporated ‘treaty rights and obligations conferred or imposed by agreement or by international law’ though it suggests such courts might look at an unincorporated treaty ‘for the purpose of resolving any ambiguity in the meaning and effect of the Order of 1972’.
Lord Oliver: ‘It is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. . . . That is the first of the underlying principles. The second is that, ‘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, as it is sometimes expressed, are not self-executing. Quite simply, 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 and obligations, it is irrelevant.’
However he recognised exceptions: ‘These propositions do not, however, involve as a corollary that the court must never look at or construe a treaty. ‘ and ‘it is well established that where a statute is enacted in order to give effect to the United Kingdom’s obligations under a treaty, the terms of the treaty may have to be considered and, if necessary, construed in order to resolve any ambiguity or obscurity as to the meaning or scope of the statue. Clearly, also, where parties have entered into a domestic contract in which they have chosen to incorporate the terms of the treaty, the court may be called upon to interpret the treaty for the purposes of ascertaining the rights and obligations of the parties under their contract’ and ‘Further cases in which the court may not only be empowered but required to adjudicate upon the meaning or scope of the terms of an international treaty arise where domestic legislation, although not incorporating the treaty, nevertheless requires, either expressly or by necessary implication, resort to be had to its terms for the purpose of construing the legislation . . . or the very rare case in which the exercise of the Royal Prerogative directly effects an extension or contraction of the jurisdiction without the constitutional need for internal legislation . . . ‘ and ‘It must be borne in mind, furthermore, that the conclusion of an international treaty and its terms are as much matters of fact as any other fact. That a treaty may be referred to where it is necessary to do so as part of the factual background against which a particular issue arises may seem a statement of the obvious. But it is, I think, necessary to stress that the purpose for which such reference can legitimately be made is purely an evidential one. Which states have become parties to a treaty and when and what the terms of the treaty are are questions of fact. The legal results which flow from it in international law, whether between the parties inter se or between the parties or any of them and outsiders, are not and they are not justiciable by municipal courts.’

Templeman and Oliver LL
[1989] 3 All ER 523
International Tin Council (Immunities and Privileges) Order 1972, International Organisations Act 1968
England and Wales
Citing:
Appeal from (affirmed)Maclaine Watson and Co Ltd v International Tin Council CA 1988
The court asked the extent to which international law forms part of the law of this country. Nourse LJ said: ‘For up to two and a half centuries it has been generally accepted amongst English judges and jurists that international law forms part of . .
Appeal from (affirmed)Maclaine Watson and Co Ltd v International Tin Council (No. 2) CA 1988
When the ITC did not satisfy an arbitral award made against it, the judgment creditor sought to discover where its assets could be found. Application to the Court was made under RSC 0.48 of the Supreme Court Act 1981 and under the Court’s inherent . .
CitedSecretary of State in Council of India v Kamachee Boye Sahab PC 9-Jul-1859
‘The transactions of independent states between each other are governed by other laws than those which municipal courts administer: such courts have neither the means of deciding what is right, nor the power of enforcing any decision which they may . .
CitedRustomjee v The Queen QBD 1876
The Sovereign acts ‘throughout the making of the treaty and in relation to each and every of its stipulations in her sovereign character, and by her own inherent authority; and, as in making the treaty, so in performing the treaty, she is beyond the . .
CitedZoernsch v Waldock CA 1964
A claim was lodged against a former president as well as the current secretary of the European Commission of Human Rights. The former president, Sir Humphrey Waldock, was under the 1960 Order entitled to ‘the like immunity from legal process as is . .
CitedPost Office v Estuary Radio Ltd CA 1968
On the proper inerpretation of the legislation, the extent of application of the legislative regime is determined by reference to the concept of the UK’s territorial waters as defined from time to time by the Crown. When the exercise of the Royal . .
CitedBlackburn v Attorney-General CA 10-May-1971
The complainant sought to argue that entry to Europe would be unlawful in that it involved surrender of the sovereignty of the Queen in Parliament. The respondent accepted that the Bill would involve some surrender of power, but that it was a lawful . .

Cited by:
CitedJH 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 . .
CitedIn 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 . .
AffirmedRegina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
AffirmedRegina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
CitedOccidental 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 . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

International, Company

Leading Case

Updated: 11 November 2021; Ref: scu.194460

AR v RN (Scotland): SC 22 May 2015

The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of International Child Abduction, as incorporated into the law of the United Kingdom by the Child Abduction and Custody Act 1985. The Inner House had concluded that Scotland had become the habitual residence of the children, and they should be returned to France.
Held: The Father’s appeal failed. The major characteristice of an habitual residence was not the degree of permanence, but rather the stability of that residence.

Lady Hale, Deputy President, Lord Clarke, Lord Wilson, Lord Reed, Lord Hughes
[2015] UKSC 35, [2015] 2 FCR 570, [2015] 2 FLR 503, 2015 Fam LR 54, [2015] 3 All ER 749, 2015 SLT 392, [2016] AC 760, [2015] Fam Law 777, 2015 GWD 17-289, 2015 SCLR 471, [2015] 2 WLR 1583, UKSC 2015/0048
Bailii, Bailii Summary, SC, SC Summary
Child Abduction and Custody Act 1985
Scotland
Citing:
Appeal fromAR, Re An Order Under The Child Abduction and Custody Act 1985 SCS 14-Nov-2014
(Extra Division, Inner House – Opinion of Lord Malcolm) – appeal in application for order of return of two children to their father in France. The partis disputed whether Scotland had become habitually resident in Scotland, and also whether the . .
CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
CitedRe KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
At Outer HouseIn Re AR (An Order Under The Child Abduction And Custody Act 1985) SCS 17-Jun-2014
The two girls were with their mother in Scotland. The father, living in France, sought their return to France:
Held: The court granted the father’s application. The Lord Ordinary: ‘After considering all the relevant evidence I am satisfied . .
CitedA (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
CitedMercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
CitedIn Re H (Children) (Custody Rights: Jurisdiction) CA 29-Jul-2014
The father appealed against refusal of an order requiring the mother of his children to return them to this country from Bangladesh.
Held: The appeal failed. There is no longer any rule that where two parents had parental responsibility for a . .
CitedC v M ECJ 9-Oct-2014
ECJ (Judgment) Urgent preliminary ruling procedure – Area of freedom, security and justice – Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Hague Convention of 25 October 1980 on the civil . .

Cited by:
CitedRe B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 11 November 2021; Ref: scu.547067

Buttes Oil and Gas Co v Hammer (No 3): HL 1982

The House considered a dispute between two Us oil companies about the right to exploit an oil field in the Gulf. Each claimed to have a concession granted by the ruler of a Gulf state. Each state claimed that the oil field was within its territorial waters. Both the UK and Iran had become involved in the dispute. There was extensive litigation between the two companies both in England and in the United States. In the English proceedings one of the oil companies (Occidental) alleged that there had been a fraudulent conspiracy between the other company (Buttes) and the Ruler of Sharjah (one of the Gulf states concerned) to deprive Occidental of its rights to exploit the oil field. Buttes applied to strike out the conspiracy claim.
Held: A court should not, as a matter of judicial restraint, adjudicate on the transactions of foreign States and, therefore, upon claims that might give rise to the possibility of embarrassment in the conduct of foreign relations or in respect of which there are no judicial or manageable standards by which the validity of such transactions can be judged. Lord Wilberforce said that the principle was ‘inherent in the very nature of the judicial process’, rather than an example of the exercise of judicial discretion, and ‘Leaving aside all possibility of embarrassment in our foreign relations . . there are . . no judicial or manageable standards by which to judge these issues, or to adopt another phrase . .the court will be in a judicial no-mans land . .’

Lord Wilberforce
[1982] AC 888, [1981] 3 All ER 616, [1981] 3 WLR 787
England and Wales
Citing:
Appeal fromButtes Oil and Gas Co v Hammer CA 1981
Reports made by employees to their employers or by agents to their principals are not privileged unless they satisfy, and are privileged if they are reports made for the purpose of being laid before the party’s legal adviser for the purpose of . .

Cited by:
CitedJeyaretnam v Mahmood 21-May-1992
For the purpose of an application to discharge an order for service on a defendant outside the jurisdiction, the court declined to evaluate allegations of lack of independence or impartiality in the defendant’s home country of Singapore on the . .
CitedAl-Koronky and Another v Time-Life Entertainment Group Ltd and Another CA 28-Jul-2006
The claimants sought damages after publication of articles alleging severe mistreatment of a servant. One defendant had settled and apologised, but the defendant publisher and author had persisted with the allegation. The claimants who lived in . .
CitedSkrine and Co (a Firm) and others v Euromoney Publications plc and others QBD 10-Nov-2000
The court was asked to strike out parts of a defemation pleading alleging that (i) the Malaysian Prime Minister had acted in a manner intended and/or calculated to interfere with the independent judiciary; (ii) Malaysian judges applied the law of . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International

Leading Case

Updated: 11 November 2021; Ref: scu.244090

Lexington Insurance Co v AGF Insurance Ltd: HL 30 Jul 2009

The respondent insurers had been held liable in Washington, and had been granted indemnity against the appellants by the Court of Appeal. The insurance contract had been under the law of Pennsylvania, but that of the re-insurance under the law of England and Wales.
Held: The claimant’s appeal succeeded. The re-insurance contract was governed by English law. If it was to be construed according to the law of another jurisdiction, that jurisdiction must have been capable of being identified at the time when the contract was made.

Lord Mance said: ‘a reinsurance is a separate contract, which may contain its own independent terms requiring to be satisfied before insurers can claim indemnity under it. To take an obvious example, the present reinsurance was not a perfectly proportional reinsurance, by virtue of the retention of $1,675,000. More fundamentally, even a perfectly proportional reinsurance is not an insurance against liability, still less against any liability which the reinsured may be held to incur under the insurance. ‘ and ‘ the reinsurance is an independent contract, with its own terms which fall to be construed under English law, and I see no basis for interpreting it as covering any liability which might subsequently be held to arise under the insurance in any State whose law might, after disputes had arisen under it and other separate insurances, be applied by reference to factors extraneous to the particular insurance to which alone the reinsurance related It follows that there is no basis for construing the two contracts as back to back in the present situation.’ and
‘under English law, a contract has a meaning which is to be ascertained at the time when it is concluded, having regard to its background and the surrounding circumstances within the parties’ knowledge at that time. ‘

Lord Phillips of Worth Matravers, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood, Lord Mance and Lord Collins of Mapesbury
[2009] UKHL 40, Times 13-Aug-2009, [2009] Bus LR 1452, [2009] 2 Lloyd’s Rep 508, [2010] 1 AC 180, [2009] 4 All ER 909, [2009] Lloyd’s Rep IR 675, [2009] 3 WLR 575, [2010] Env LR D1
Bailii
England and Wales
Citing:
CitedBritish Dominions General Insurance Co Ltd v Duder KBD 1915
The court was asked whether the insurers, having settled the owners’ claim for a constructive total loss at 66 per cent. of the sum insured could recover 100 per cent. from their re-insurers. Bailhache J. held that they could, with the result that . .
CitedForsikringsaktieselskapt Vesta v Butcher HL 1988
A contract of insurance and a facultative reinsurance, under which part of the original risk was reinsured, contained warranties in identical terms.
Held: The warranty in the reinsurance policy, which was governed by English law, should be . .
CitedForsikringsaktieselskabet National (of Copenhagen) v Attorney-General HL 1925
Viscount Cave LC said that ‘by a contract of reinsurance the reinsuring party insures the original insuring party against the original loss.’ . .
CitedGroupama Navigation Et Transports; Continent Sa; Mutuelles Du Mans; Zurich International France SA and Gie Generali Transports (Bodies Corporate) v V Catatumbo Seguros (a Body Corporate) CA 20-Jul-2000
. .
CitedJohn Knight, William Ware And Others Against Faith And Another 23-Sep-1850
A ship, insured in 1000l. for a year ending 23rd September, was stranded, got off, and brought into the harbour of Sta. Cruz, on September 16th. She remained there with her crew on board till the middle of October, and, during that time, was pumped; . .
CitedMunicipal Mutual Insurance Limited v Sea Insurance Company Limited and Others CA 26-Mar-1998
The unifying event in an aggregation clause in an insurance policy was expressed in very general terms: ‘all occurrences of a series consequent on or attributable to one source or original cause.’
Held: As long as one could find any act, event . .
CitedHill and Others v Mercantile and General Reinsurance Co Plc; Berry and Others v Same HL 15-Aug-1996
Liability under reinsurance was not invalidated by a compromise including other claims. The parties to reinsurance contracts could set their own ways of proving the loss within a contract. A Full Reinsurance Clause is not binding in respect of any . .
CitedRe London Marine Insurance Association 1869
. .
CitedJoyce v Realm Marine Insurance Co 1872
The insurance covered (inter alia) cargo from ports in West Africa with outward cargo to be considered homeward interest 24 hours after the ship’s arrival at her first port of discharge. The reinsurance was at and from West African ports ‘to . .
CitedBalfour v Beaumont 1984
. .
CitedYouell and Others v Bland Welch and Co Ltd and Others CA 1992
The court considered whether an underwiter’s slip was admissible when construing the policy which followed.
Held: Staughton LJ said: ‘It is now, in my view, somewhat old-fashioned to approach such a problem armed with the parol evidence rule, . .
CitedBolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
CitedWhitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd CA 1969
The parties, one in England and one in Scotland agreed to perform certain actions in Scotland. Any dispute was to be settled by arbitration, but it was not said whether this would be in England or Scotland. The curial law of arbitration would decide . .
CitedCompagnie Tunisienne de Navigation SA v Compagnie d’Armement Maritime SA HL 1970
The court considered what was the proper law of the contract. The inquiry must always be to discover the law with which the contract has the closest and most real connection. The mere fact that arbitration was to be in London did not mean that what . .
CitedWhitworth Street Estates (Manchester) Ltd v James Miller and Partners Ltd HL 1970
The parties disagreed as to the curial law of an arbitration agreement. The proper law of the building contract and the arbitration agreement was English but the reference was conducted in Scotland.
Held: Evidence of behaviour after a contract . .
CitedThe Iran Vojdan 1984
Electric cable was carried on an Iranian flagged vessel from Hamburg to Dubai. The plaintiff consignees, alleging that the cargo was damaged, commenced proceedings against the shipowners in the English courts. The defendants sought a stay on saying . .
CitedAmin Rasheed Shipping Corp v Kuwait Insurance Co HL 1983
A claimant must show good reason why service on a foreign defendant should be permitted. This head of jurisdiction was an exorbitant jurisdiction, one which, under general English conflict rules, an English court would not recognise as possessed by . .
CitedCharter Reinsurance Co Ltd v Fagan and Others HL 24-May-1996
The re-insurers appealed against a finding that they were liable to make payment under a contract which required them to pay ‘sums actually paid.’ They said that the company having become insolvent, no payment would in fact be made.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Insurance, International

Updated: 11 November 2021; Ref: scu.368927

K v K: FD 29 Jul 2016

Costs of enforcement Order

The parties, mother and father, had divorced in Russia, and an order was made or the residence of their daughter with F, with contact for M. After coming to England, M obtained an order to enforce the first order. The court now considerd liability for costs.

MacDonald J
[2016] EWHC 2002 (Fam), [2016] WLR(D) 474
Bailii, WLRD
England and Wales

Children, International, Costs

Updated: 11 November 2021; Ref: scu.569168

Financial Services Authority (FSA) and Others v AMRO International Sa and Another: CA 24 Feb 2010

The FSA appealed against an order refusing its request for inquiries and production of accounting records by the defendant accountants to satisfy a request issued by the US Securities and Exchange Commission.
Held: The FSA had properly assessed the request, considering the seriousness of the allegations, and the strong public interest in mutual assistance. Such co-operation was part of the statutory purpose of the FSA. There was no error in the appointment of the investigators, and the requirement for production of documents was properly made.

Sir Anthony May, President, Lord Justice Stanley Burnton and Lord Justice Jackson
[2010] EWCA Civ 123
Bailii, Times
Financial Services and Markets Act 2000 171 172 354(1)
England and Wales
Citing:
Appeal fromAMRO International Sa and Another, Regina (On the Application of) v The Financial Services Authority and Others Admn 25-Aug-2009
. .
CitedColt Industries v Sarlie (No. 2) CA 1966
Lord Denning MR discussed the status of a foreign judgment whilst under appeal: ‘The appeal itself does not render it not final and conclusive, nor should the possibility of leave to appeal. It seems to me that the proper test is this : is the . .
CitedTajik Aluminium Plant (Tadaz) v Hydro Aluminium As and others CA 24-Oct-2005
Application for leave to appeal against refusal to grant witness orders to attend arbitration. The respondent had argued that the request was too vague and broad.
Held: Moore-Bick LJ said: ‘In order to answer the question raised in this case I . .
CitedIn re Asbestos Insurance Coverage HL 1985
A London insurance brokerage company had been ordered to produce documents pursuant to a letter of request issued by a Californian court in proceedings brought by manufacturers of asbestos against their insurers. The 1975 Act empowered the court to . .

Lists of cited by and citing cases may be incomplete.

Financial Services, International

Updated: 11 November 2021; Ref: scu.401791

CH v GLS: FD 28 Nov 2019

Application under The Hague Convention and Brussels II Revised for the summary return of the parties’ daughter, A, aged four, to Spain.

[2019] EWHC 3842 (Fam), [2020] 4 WLR 74
Bailii
England and Wales

Children, International

Updated: 11 November 2021; Ref: scu.648692

Bank Mellat v HM Treasury: QBD 11 Jun 2010

The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of the shares, the figure was 20% and soon to be reduced to 15%. It said that it should have been given an opportunity to make representations before the order was made, that the order had been made without fulfilling the require,ents and that it breached its human rights.
Held: The claim failed. The objective of the Order might not be met if by being forewarned, a subject might take steps to evade its effect. Section 63 provides a means by which the bank is afforded a reasonable opportunity of effectively challenging the measures contained in the Order.
Whilst Article 6 applied to the proceedings, it could could not apply before any proceedings commenced (Micallef). In the alternative, a hybrid procedure involving executive decision making can be compatible with Article 6(1), and the procedure for determining the bank’s civil rights in this case is hybrid: an executive decision affirmed by Parliament, subject to later challenge before a Court.
As to the substantial objection, the test was as to whether the respondent reasonably believed that Iran is developing Nuclear Weapons, and that such a development threatened the national interests of the UK. In this case: ‘the objective of the Order – to inhibit the development of nuclear weapons by Iran – is sufficiently important to justify interfering with property rights. The measure – excluding the bank from the financial sector in the United Kingdom – is rationally connected to it. To produce or facilitate the production of nuclear weapons, Iran needs to import uranium, centrifuges and, no doubt, a host of other materials, from abroad. To do so, it must pay for them. To pay for them, it will require, or at least find convenient, to use banking facilities, in particular the issuing and confirmation of letters of credit. An Iranian importer of such material is likely to turn to an Iranian bank with an international presence, to issue letters of credit. Cutting off one such bank from one of the principal financial markets in which such business may be transacted is clearly rationally connected to the inhibition of the development of nuclear weapons.’
Justice required that in this case, the some at least of the evidence evidence be put before the court and that it had to be dealt with by a Closed Material Procedure. Part of the judgment was handed down as a closed judgment not available publicly or to the bank.

Mitting J
[2010] EWHC 1332 (QB), [2010] WLR (D) 148
Bailii, WLRD
Financial Restrictions (Iran) Order 2009 (SI 2009 No 2725), Counter-Terrorism Act 2008, European Convention on Human Rights 6
England and Wales
Citing:
See AlsoBank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
CitedCooper v The Board of Works For The Wandsworth Destrict 21-Apr-1863
Where a land-owner owner had failed to give proper notice to the Board, the Board had, under the 1855 Act, power to demolish any building he had erected and recover the cost from him. The plaintiff said that the Board had used that power without . .
CitedRegina 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’, . .
CitedJokela v Finland ECHR 21-May-2002
Hudoc Judgment (Merits and just satisfaction) Violation of P1-1; No violation of Art. 6-1 with regard to witnesses; No violation of Art. 6-1 with regard to reasons for decision; Pecuniary damage – financial . .
CitedBAPIO Action Ltd and Another, Regina (on the Application of) v Secretary of State for the Home Department and Another CA 9-Nov-2007
The action group appealed against refusal of a judicial review of guidelines as to the employment of non-EU doctors, saying that they were in effect immigration rules and issuable only under the 1971 Act. The court had said that since the guidance . .
AppliedMicallef v Malta ECHR 15-Oct-2009
‘The Court reiterates that for Article 6(1) in its ‘civil’ limb to be applicable, there must be a dispute over a ‘civil right’ which can be said, at least on arguable grounds, to be recognised under domestic law’
Preliminary proceedings or . .
CitedWright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedBX v Secretary of State for The Home Department CA 4-May-2010
The applicant was subject to a non-derogating control order. The court was asked (1) whether a ‘controlled person’ to whom the Secretary of State has given notice of modification under section 7(2)(d) and (8)(c) 2005 Act, may seek to challenge or . .
CitedSporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
CitedJames 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 . .
CitedHuang 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 . .
CitedDe 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 . .
CitedBosphorus Hava Yollari Turizm ve Ticaretas v Minister for Transport, Energy and Communications and others ECJ 30-Jul-1996
ECJ (Judgment) Article 8 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, which provides that ‘all vessels, freight vehicles, rolling stock . .

Cited by:
Appeal fromBank Mellat v HM Treasury CA 13-Jan-2011
Under the 2009 Order, the appellant Bank’s UK operations had been shut down. It appealed against the Order, but the respondent had brought evidence, closed save to the respondent, and the order had been confirmed.
Held: The bank’s appeal . .
At first instanceBank 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 . .
At first instanceBank Mellat v Her Majesty’s Treasury (No 1) SC 19-Jun-2013
Closed Material before Supreme Court
Under the 2009 order, the appellant Bank had been effectively shut down as to its operations within the UK. It sought to use the appeal procedure, and now objected to the use of closed material procedure. The Supreme Court asked itself whether it . .

Lists of cited by and citing cases may be incomplete.

Banking, International, Human Rights

Updated: 10 November 2021; Ref: scu.416753

People’s Mojahedin Organization of Iran v Council (Common Foreign and Security Policy): ECFI 23 Oct 2008

Europa Common foreign and security policy ‘ – Restrictive measures directed against certain persons and entities with a view to combating terrorism – Freezing of funds – Actions for annulment – Rights of the defence – Statement of reasons Judicial review.

T-256/07, [2008] EUECJ T-256/07
Bailii
European

International, Crime

Updated: 10 November 2021; Ref: scu.277847

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 subject to human trafficking. They appealed against dismissal of their claims under section 31 the 1964 Act, the respondents being Saudi diplomats. The EAT had rejected the claims to privilege.
Held: The appeal and cross appeal were rejected. The President of the EAT was right to uphold the respondents’ claim to immunity in answer to the claim made by Ms Reyes. The employment of a domestic servant was undertaking ‘professional or commercial activity within the exception. The international law obligations in relation to diplomatic immunity are not incompatible with article 6 of the ECHR. The ECHR must be interpreted so far as possible in conformity with other rules of international law . . on the true interpretation of article 31(1)(c) of the 1961 Convention, diplomatic immunity is not excluded in relation to claims for compensation by domestic workers who have been trafficked.

Lord Dyson MR, Arden, Llloyd Jones LJJ
[2015] EWCA Civ 32, [2016] 1 WLR 1785, [2016] 2 All ER 136, [2017] ICR 42, [2015] WLR(D) 75, [2015] IRLR 289, [2015] ICR 931
Bailii, WLRD
Diplomatic Privileges Act 1964, Vienna Convention on Diplomatic Relations 1961 31(1)(c), European Convention on Human Rights 6
England and Wales
Citing:
CitedFothergill 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 . .
CitedHolland v Lampen-Wolfe HL 20-Jul-2000
The US established a base at Menwith Hill in Yorkshire, and provided educational services through its staff to staff families. The claimant a teacher employed at the base alleged that a report on her was defamatory. The defendant relied on state . .
CitedMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
CitedRantsev v Cyprus And Russia ECHR 7-Jan-2010
A Russian woman, aged 20, had gone to work as an artiste in a cabaret in Cyprus. Three weeks later she was found dead in a street.
Held: The Court upheld her father’s complaint that Cyprus was in breach of article 4 in that its regime for the . .
CitedCudak v Lithuania ECHR 23-Mar-2010
Grand Chamber – The applicant alleged that there had been a violation of her right of access to a court, as guaranteed by Article 6-1 of the Convention.
The applicant was a secretary and switchboard operator employed in the Polish embassy in . .
CitedSabeh El Leil v France ECHR 29-Jun-2011
Grand Chamber – The applicant alleged that he had been deprived of his right of access to a court as a result of the immunity from jurisdiction upheld by the domestic courts.
This was a claim for unfair dismissal, brought before the French . .
CitedAl-Dulimi and Montana Management Inc v Switzerland ECHR 23-Jul-2012
ECHR Information note – Article 6-1
Access to court
Sanctions imposed on applicants on basis of UN Security Council resolutions: communicated
The first applicant is an Iraqi national who lives . .
CitedNada v Switzerland ECHR 12-Sep-2012
Grand Chamber – Mr Nada alleged that the ban on entering or transiting through Switzerland, which had been imposed on him as a result of the addition of his name to the list annexed to the FederalTaliban Ordinance, had breached his right to liberty . .
CitedAl-Dulimi and Montana Management Inc v Switzerland ECHR 26-Nov-2013
The applicants alleged, in particular, that the confiscation of their assets had been ordered in the absence of any procedure complying with Article 6 of the Convention.
Held: There had been a violation despite the fact that Switzerland was . .
CitedHounga v Allen and Another SC 30-Jul-2014
The appellant, of Nigerian origin had been brought here at the age of 14 with false identity papers, and was put to work caring for the respondent’s children. In 2008 she was dismissed and ejected from the house. She brought proceedings alleging . .
CitedTabion v Mufti 1996
(4th Circuit – United States) The appellant worked for two years as a domestic servant in the home of the respondent diplomats. The appellant brought proceedings claiming damages for breach of the terms of her contract of employment. In response to . .
Appeal fromAl-Malki and Another v Reyes and Another (Jurisdictional Points) EAT 4-Oct-2013
EAT JURISDICTIONAL POINTS
Two domestic workers, employed one after the other by the First Respondent, a diplomat, and Second Respondent, his wife, (the appellants in this appeal) asserted they had been . .

Cited by:
At CAReyes 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: . .

Lists of cited by and citing cases may be incomplete.

Employment, International, Human Rights, News

Updated: 10 November 2021; Ref: scu.542264

Re E (Children) (Abduction: Custody Appeal): SC 10 Jun 2011

Two children were born in Norway to a British mother (M) and Norwegian father (F). Having lived in Norway, M brought them to England to stay, but without F’s knowledge or consent. M replied to his application for their return that the children would be at risk if returned, alleging psychological abuse by F. She argued that article 13(b) of the 1980 convention should be applied against the background of article 3.1 of 1989 Convention so as to make the welfare of the children paramount. M appealed against rejection of her claim.
Held: The appeal failed. The court considered the interaction of the Hague Covention on Child Abduction and the Human Rights Convention after the decision in Neulinger in which the Grand Chamber had given preference to the latter. Both the Hague Convention and the Brussels II revised Regulation have been devised with the best interests of children generally, and of the individual children involved in such proceedings, as a primary consideration. The 1980 Convention set out to serve children’s interests with a summary remedy to allow their return to their home country where the matter could be looked at fully. It did so by making certain assumptions, though with safeguards. The Neulinger case appeared now to invite consideration of the circumstances before a child’s return, but a gloss had since been provided that ‘the logic of the Hague Convention is that a child who has been abducted should be returned to the jurisdiction best-placed to protect his interests and welfare, and it is only there that his situation should be reviewed in full.’ In the light of this and the judge’s findings that M and the children would receive protection in Norway, the appeal was rejected.
The exceptions required to resists summary return should be applied strictly and without further judicial gloss.
‘the whole of the Hague Convention is designed for the benefit of children, not of adults. The best interests, not only of children generally, but also of any individual child involved are a primary concern in the Hague Convention process. We agree with the Strasbourg court that in this connection their best interests have two aspects: to be reunited with their parents as soon as possible, so that one does not gain an unfair advantage over the other through the passage of time; and to be brought up in a ‘sound environment’, in which they are not at risk of harm. The Hague Convention is designed to strike a fair balance between those two interests. If it is correctly applied it is most unlikely that there will be any breach of article 8 or other Convention rights unless other factors supervene. Neulinger does not require a departure from the normal summary process, provided that the decision is not arbitrary or mechanical. The exceptions to the obligation to return are by their very nature restricted in their scope. They do not need any extra interpretation or gloss.’
Baroness Hale and Lord Wilson observed: ‘The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre-empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left-behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come.’

Lord Hope, Deputy President, Lord Walker, Lady Hale, Lord Kerr, Lord Wilson
[2011] UKSC 27, UKSC 2011/0084, [2011] 2 WLR 1326, [2011] 2 FCR 419, [2012] 1 AC 144, [2011] Fam Law 919
Bailii, Bailii Summary, SC Summary, SC
United Nations Convention on the Rights of the Child 1989, Hague Convention on the Civil Aspects of International Child Abduction 1980, European Convention on Human Rights 8, Child Abduction and Custody Act 1985
England and Wales
Citing:
CitedTB v JB (Formerly J H) (Abduction: Grave Risk of Harm) CA 19-Dec-2000
The father appealed against rejection of his claim for the return of his three children to New Zealand. . .
Appeal FromEliassen and Another v Eliassen and Others CA 1-Apr-2011
M (British) and F (Norwegian) had their two daughters in Norway. M removed them to England saying that she feared F’s alleged psychological abuse of the children. She now appealed against an order for their return arguing that the exception to the . .
CitedIn re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
CitedZH (Tanzania) v Secretary of State for The Home Department SC 1-Feb-2011
The respondent had arrived and claimed asylum. Three claims were rejected, two of which were fraudulent. She had two children by a UK citizen, and if deported the result would be (the father being unsuitable) that the children would have to return . .
CitedRe M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
CitedNeulinger 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 . .
CitedMaumousseau and Washington v France ECHR 6-Dec-2007
The child’s mother (M) complained that the effective operation of the Hague Convention, in ordering the return of the applicant’s daughter to her habitual residence in the United States, M having taken her to France for the holidays and refused to . .
CitedDaniela Lipkowsky And India Dawn McCormack v Germany ECHR 18-Jan-2011
. .
CitedMiranda Van Den Berg And Noa Sarri v The Netherlands ECHR 2-Nov-2010
A mother was complaining that the Dutch courts had ordered the return of her daughter and had rejected her case under article 13b. . .
CitedRaban v Romania ECHR 26-Oct-2010
The father complained that the Romanian courts had not ordered the return of his daughter when in his view they should have done. . .

Cited by:
CitedCastle and Others v Commissioner of Police for The Metropolis Admn 8-Sep-2011
The claimants, all under 17 years old, took a peaceful part in a substantial but disorderly demonstration in London. The police decided to contain the section of crowd which included the claimants. The claimants said that the containment of children . .
CitedRe S (A Child) SC 14-Mar-2012
The mother appealed against an order confirmed by the Court of Appeal for the return of her child to Australia. The mother and father had cohabited in Sydney, before M returned with S without F’s consent or the permission of an Australian court. The . .
CitedRe C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .

Lists of cited by and citing cases may be incomplete.

Children, Human Rights, International

Updated: 10 November 2021; Ref: scu.440571

Hurtado v California: 1884

Common Law Not Written in Stone

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

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

Lists of cited by and citing cases may be incomplete.

Constitutional, International

Leading Case

Updated: 09 November 2021; Ref: scu.235926

The Health Service Executive of Ireland v PA and Others: CoP 3 Jun 2015

hsen_paCoP201506

The HSE sought orders under s.63 of and Schedule 3 to the 2005 Act recognising and enforcing orders by the Irish High Court for the detention of three young persons (‘PA’, ‘PB’, and ‘PC’) at a special unit known in Northampton.
Held: On an application to for confirmation of a compulsory psychiatric placement under Schedule 3 to the 2005 Act the court should itself carry out a review in oder to be satisfied that an order would comply with the Convention and so in that (i) the Winterwerp criteria were met and (ii) that the individual’ would have an effective right to regular reviews of the detention and to challenge it in court if necessary.

Baker J
[2015] EWCOP 38, [2015] WLR(D) 243
Bailii, WLRD
Mental Capacity Act 2005 63 Sch 3, European Convention on Human Rights , Hague Convention on the International Protection of Adults 2000 1 3
Citing:
CitedWinterwerp v The Netherlands ECHR 24-Oct-1979
A Dutch national detained in hospital complained that his detention had divested him of his capacity to administer his property, and thus there had been determination of his civil rights and obligations without the guarantee of a judicial procedure. . .
CitedJO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .

Lists of cited by and citing cases may be incomplete.

International, Children, Health, Human Rights

Updated: 09 November 2021; Ref: scu.548027

Joint Stock Company (Aeroflot-Russian Airlines) v Berezovsky and Another: CA 16 Jan 2014

The appellant had judgments obtained in Russia against the respondent. It now appealed against a refusal of enforcement of those judgments based upon the ground that there was a complete defence to the recognition and enforcement of the judgments namely public policy, by reason of the ‘finality principle’.
Held: Summary judgment was inapplicable. Substantial issues required to be decided involving conflicting expert evidence as to Russian Law, and these could only be decided at a full trial.

Toulson L, Arden, Kitchin LJJ
[2014] EWCA Civ 20
Bailii
England and Wales
Citing:
CitedNouvion v Freeman HL 1889
A judgment of a court of competent jurisdiction may be final and binding, even though a right of appeal to a superior court remains open.
Lord Herschell stated on the question of finality or conclusiveness of a foreign judgment: ‘in order to . .
CitedHenderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
CitedCarl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
CitedJohnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
CitedRyabykh v Russia ECHR 24-Jul-2003
The entrenched rights of a litigant would be illusory if a judicial decision by an independent body which had become final and binding could thereafter be quashed by a higher court on the application of a state official. A departure from that . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 09 November 2021; Ref: scu.519786

In re O (Children): CA 16 Feb 2011

The family had Nigerian nationality, but the father also had US nationality. After the split, M wanted to live with the children in Nigeria, and F wanted them with him in the US. On M’s visit to the UK from Nigeria with the children, the father began child abduction proceedings which had kept M and the two daughters in London. M conceded that the habitual residence had been in the US, but claimed acquiescence. The court found acquiescence, but even so ordered their return to the US for their courts to make final decisions. M appealed.
Held: M’s appeal succeeded, and the children could return to Nigeria with her. The judge had erred in applying a hierarchy to the tests applicable under the Convention, and as to the judge’s reliance on the adaptability of the children because of their young age, ‘the divergence of judicial opinion about this only serves to show that cases such as this one cannot be determined by a generalised approach and that, as Re M makes very clear, the individual circumstances of the particular child are what matter and must be examined and weighed in the balance when exercising a discretion under the Hague Convention as to whether to return a child. ‘

Wilson, Pitchford, Black LLJ
[2011] EWCA Civ 128, [2011] Fam Law 452, [2011] 1 FCR 363
Bailii
Hague Convention on the Civil Aspects of International Child Abduction 1980
England and Wales
Citing:
CitedPiglowska v Piglowski HL 24-Jun-1999
No Presumption of House for both Parties
When looking to the needs of parties in a divorce, there is no presumption that both parties are to be left able to purchase alternative homes. The order of sub-clauses in the Act implies nothing as to their relative importance. Courts should be . .
CitedRS v KS (Abduction: Wrongful Retention) FD 26-Jun-2009
In considering an international abduction of a four year old child by a parent Macur J said that disruption to the living arrangements of such a young child ‘would have more far reaching consequences and adverse impact than in the case of an older . .
AppliedRe M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Citedin Re B (Appeal: Lack of Reasons) CA 2003
Thorpe LJ considered the standard requirfed of a judgment: ‘For my part, I would say that the essential test is: does the judgment sufficiently explain what the judge has found and what he has concluded as well as the process of reasoning by which . .
CitedCannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 09 November 2021; Ref: scu.429629

Stratton Oakmont Inc v Prodigy Services Co: 1995

(New York) The defendant computer network company held itself out as having editorial control over notes posted on its bulletin board, imposed content guidelines on its users by prescreening notes for offensive language, and permitted board leaders to delete notes that did not meet guideline requirements.
Held: It was liable to be sued as ‘publisher’ of defamatory statements posted on its bulletin board. Ain J said: ‘A computerised database is the functional equivalent of a more traditional news vendor, and the inconsistent application of a lower standard of liability to an electronic news distributor such as CompuServe than that which is applied to a public library, book store, or newstand would impose an undue burden on the free flow of information.’ and ‘That such control is not complete and is enforced both as early as the notes arrive and as late as a complaint is made, does not minimise or eviscerate the simple fact that PRODIGY has uniquely arrogated to itself the role of determining what is proper for its members to post and read on its bulletin boards. Based on the foregoing, this Court is compelled to conclude that for the purposes of plaintiffs’ claims in this action, PRODIGY is a publisher rather than a distributor’

Ain J
(1995) 23 Media L Rep 1794, (1995) 63 US Law Week 2765, [1995] NY Misc Lexis 229
United States
Citing:
CitedCubby Inc v CompuServe Inc 1991
(United States) Leisure DJ said: ‘CompuServe develops and provides computer-related products and services, including CompuServe Information Service (‘CIS’), an on-line general information service or ‘electronic library’ that subscribers may access . .

Cited by:
CitedBunt v Tilley and others QBD 10-Mar-2006
bunt_tilleyQBD2006
The claimant sought damages in defamation in respect of statements made on internet bulletin boards. He pursued the operators of the bulletin boards, and the court now considered the liability of the Internet Service Providers whose systems had . .
CitedGodfrey v Demon Internet Limited QBD 26-Mar-1999
An Internet Service Provider who was re-distributing Usenet postings it had received, to its users in general, remained a publisher at common law, even though he was not such within the definitions of the Act, and it was therefore liable in . .

Lists of cited by and citing cases may be incomplete.

Defamation

Leading Case

Updated: 09 November 2021; Ref: scu.277104

Al-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence: Admn 19 Dec 2008

The two applicants had been detained by the armed forces in Iraq suspected of murder. They sought release before being transferred to the civilian authorities for trial saying that the trials would not be fair. The respondent denied that the applicants were within the jurisdiction of the court for this purpose, but merely being held at the request of the Iraqi authorities.
Held: The claim failed. In the earlier leading cases, the applicants had been held when there was no other lawful authority, and therefore the detention could only be by and for the occupying force. In these caes however the arrests had been made when there as a lawful authority requiring assistance. There was an obligation to bring the claimants before the courts of Iraq. However the claimants did fall within the jurisdiction of the United Kingdom for the purposes of article 1, and ‘the claimants are at present in the physical custody of the British forces and that their transfer to the custody of the Iraqi court would be an act attributable to the United Kingdom, not to Iraq.’ The Soering principle applied to any transfer even though it was a transfer within the same territory, and ‘the Convention is qualified in its application by the United Kingdom’s obligation under public international law to comply with the request of the Iraqi court to transfer the claimants into the custody of the court; . . if, however, the claimants would be exposed to such ill-treatment on transfer as to provide a justification in international law for declining to transfer them, the United Kingdom cannot then rely on its international law obligation as qualifying the application of the Convention.’ The court however rejected the claim that a fair trial would not be provided, but noted that there had been no re-assurance that the death penalty might not be applied, and therefore a transfer would infringe the claimant’s article 13 rights. This however did not amount to an obligation on the UK not to comply with its international obligations.

Richards LJ, Silber J
[2008] EWHC 3098 (Admin)
Bailii
European Convention on Human Rights 1 13
England and Wales
Citing:
CitedSoering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
CitedDrozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
CitedBankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
CitedEM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
CitedAl-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
CitedSecretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
AppliedGentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
CitedRegina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
CitedRegina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
CitedSaadi 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 . .
CitedOthman (Abu Qatada) (Jordan) v Secretary of State for the Home Department CA 9-Apr-2008
The claimant appealed an order for his deportation back to Jordan, saying that if returned there was a real risk that he would face a trial based on evidence obtained by torture.
Held: The appeal succeeded. A foreign national could not be . .
See AlsoAl-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .

Cited by:
See AlsoAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 22-Dec-2008
. .
Appeal fromAl-Saadoon and Another, Regina (on the Application of) v Secretary of State for Defence CA 21-Jan-2009
The claimants had been detained on the request of the Iraqi criminal court in a detention facility run by the UK armed forces. They complained of their proposed transfer to an Iraqi facility in anticipation of facing trial for murder, for which if . .
At High CourtAl-Saadoon and Mufdhi v The United Kingdom ECHR 2-Mar-2009
The claimant Iraqi nationals complained of their long term detention by British forces in Iraq, and of their transfer to the Iraqi authorities for trial for murder.
Held: The transfer was a breach of the applicants’ rights. The Iraqis had . .
See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 17-Mar-2015
Leggatt J explained the idea of enforced disappearance: ‘a concept recognised in international law and . . a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state . .
See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 26-Jun-2015
Reasons for orders following a case management hearing to review whether there are steps which the court should now be taking to procure compliance by the Secretary of State for Defence with the duty of the UK under articles 2 and 3 of the European . .
See AlsoAl-Saadoon and Others v Secretary of State for Defence Admn 7-Apr-2016
The court considered the extent of the state’s obligations to investigate allegations of unlawful killing and ill-treatment of civilians by British soldiers in Iraq between 2003 and 2009. It follows a hearing to consider three issues: i) Whether the . .
See AlsoAl-Saadoon and Others v The Secretary of State for Defence and Others CA 9-Sep-2016
. .

Lists of cited by and citing cases may be incomplete.

Armed Forces, International, Human Rights, Crime

Updated: 09 November 2021; Ref: scu.278991

Cox v Ergo Versicherung Ag: CA 25 Jun 2012

The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There is no difficulty in identifying the critical issues on this appeal for the purpose of ascertaining by which law they are to be determined. They are, first, the head of damages recoverable by the appellant, and, secondly, the assessment or quantification of those damages. It is well established that the former is a matter of substantive law and so governed by the applicable law . . and the latter is regarded, under conflict of law rules, as procedural and so governed by the law of the forum.’ To the extent that the judge said that the level of damages were to be assessed according to German law, he was incorrect. However there was no form of damages in England equivalent to the basis on which damages would be recoverable in Germany, and the court having to find such a method had only been referred to the way it was done in Germany, and that could be used as a starting point at least. It would be wrong also to extend the head of damges so as to make it equivalent to a Fatal Accidents award in England.

Maurice Kay, VP, Etherton LJJ, Dame Janet Smith
[2012] EWCA Civ 854
Bailii
Fatal Accidents Act 1976, Private International Law (Miscellaneous Provisions) Act 1995, Regulation EC No 864/2007, Directive 2000/26/EC 3
England and Wales
Citing:
CitedWelsh Ambulance Services NHS Trust and Another v Williams CA 15-Feb-2008
The court considered the essential philosophy underwriting the 1976 Act. Smith LJ said: ‘nothing that a dependant (or for that matter anyone else) could do after death could either increase or decrease the dependency. The dependency is fixed at the . .
CitedDavidsson v Hill CA 1901
Ships collided at sea. The negligent crew were aboard the British ship. A crew member on the Norwegian ship died in the collision, and his family sued here.
Held: The family had a right of action against the defendant owners of the British . .
CitedParry v Cleaver HL 5-Feb-1969
PI Damages not Reduced for Own Pension
The plaintiff policeman was disabled by the negligence of the defendant and received a disablement pension. Part had been contributed by himself and part by his employer.
Held: The plaintiff’s appeal succeeded. Damages for personal injury were . .
CitedThe Esso Malaysia 1974
A Russian seaman died as the result of a collision in international waters between two foreign registered vessels. His family sought to claim here.
Held: The benefit of the Fatal Accidents Acts can, in principle, be claimed by a foreigner. The . .
CitedArab Monetary Fund v Hashim 11-Oct-1994
In cases under the 1978 Act the court does not ask whether, under some rule of English private international law to be found independently of that Act, the contribution claim is to be determined by reference to the 1978 Act. Rather, the court asks . .
CitedMacmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) CA 2-Nov-1995
The question of ownership of a company is to be decided according to law of country where the company is incorporated. Conflict of laws rules are to be used to look to the issue in the case not the cause of action.
Staughton LJ said: ‘In any . .
CitedRoerig v Valiant Trawlers Ltd CA 28-Jan-2002
The claimant who was Dutch, was a widow of a fisherman who had died at sea. The question on appeal was ‘in assessing damages for loss of dependency should benefits resulting from the loss be deducted from the damages?’ The claimant’s position under . .
CitedMaher and Another v Groupama Grand Est CA 12-Nov-2009
Two English claimants respectively suffered injury in a French road accident. They brought claims for damages against the French insurer of the other driver. Judgment on liability was entered by consent. There were issues as to the assessment of . .
CitedHarding v Wealands HL 5-Jul-2006
Claim in UK for Accident in Australia
The claimant had been a passenger in a car driven by his now partner. They had an accident in New South Wales. The car was insured in Australia. He sought leave to sue in England and Wales because Australian law would limit the damages.
Held: . .
CitedCookson v Knowles HL 24-May-1978
The House described the approach to the calculation of damages for a dependency under the Fatal Accidents Acts.
Held: The multipliers in Fatal Accidents Act cases should be calculated from the date of death.
Sections 3 and 4 mark a . .
CitedKuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
Appeal fromCox v Ergo Versicherung Ag and Another QBD 28-Oct-2011
The deceased died in a road traffic accident whilst serving in the Armed forces in Germany. The driver was insured under German law. The widow now claimed damages in England. She had entered a new relationship.
Held: The object of section 844 . .

Cited by:
Appeal fromCox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
See AlsoCox v Ergo Versicherung Ag and Another CA 19-Jul-2012
The deceased army officer had been injured in a road traffic accident in Germany. His widow brought proceedings in the UK, anticipating a better damages award than might be available in Germany. She had assigned certain elements of her claim to the . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury, International

Updated: 09 November 2021; Ref: scu.460854

M, Regina (on the Application of) v Her Majestys Treasury: HL 30 Apr 2008

The House referred to the ECJ a question about the implementation of UN resolutions imposing sanctions on Al-Qa’ida.

Lord Bingham of Cornhill, Lord Hoffmann, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Brown of Eaton-under-Heywood
[2008] UKHL 26, [2008] 2 All ER 1097, [2008] 2 CMLR 51
Bailii, HL
Council Regulation (EC) No 881/2002
England and Wales
Citing:
At First InstanceM and others v HM Treasury Admn 22-Sep-2006
The claimants sought payment of benefits. They would otherwise have been entitled, and were not suspected themselves, but were family members of persons listed as suspected terrorists under the Resolution, and had been denied benefits acordingly. . .
Appeal fromM and Others, Regina (on the Application Of) v Revenue and Customs and others CA 6-Mar-2007
The applicants complained that though none of them was suspected of terrorist activity, their finances had been restricted because of their family connections with Osama Bin Laden. . .

Cited by:
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
At HLM (FC) and Others v Her Majesty’s Treasury (Common Foreign And Security Policy) ECJ 14-Jan-2010
Europa Restrictive measures directed against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban Prohibition of making funds available for the benefit of persons and . .
At HLM (FC) and Others (Common Foreign And Security Policy) ECJ 29-Apr-2010
Control of Funds of Terrorist Associates
ECJ Common foreign and security policy – Restrictive measures taken against persons and entities associated with Usama bin Laden, the Al-Qaeda network and the Taliban – Freezing of funds and economic resources – . .

Lists of cited by and citing cases may be incomplete.

European, International, Criminal Practice

Updated: 09 November 2021; Ref: scu.267373

Anderson v City of Bessemer City, North Carolina: 19 Mar 1985

United States Supreme Court – The court explained some considerations for the deference to be given by an appellate court to findings of fact made by a lower court: ‘The rationale for deference to the original finder of fact is not limited to the superiority of the trial judge’s position to make determinations of credibility. The trial judge’s major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judge’s efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be ‘the ‘main event’ . . rather than a ‘tryout on the road.’ . . For these reasons, review of factual findings under the clearly erroneous standard – with its deference to the trier of fact – is the rule, not the exception.’

470 US 564 (1985), 53 USLW 4314, [1985] USSC 57, 105 SCt 1504, 84 L Ed 2d 518
USSC
United States
Cited by:
CitedMcGraddie v McGraddie and Another (Scotland) SC 31-Jul-2013
The parties were father and son, living at first in the US. On the son’s wife becoming seriously ill, the son returned to Scotland. The father advanced a substantal sum for the purchase of a property to live in, but the son put the properties in his . .
CitedDB v Chief Constable of Police Service of Northern Ireland SC 1-Feb-2017
The appellant said that the police Service of Northern Ireland had failed properly to police the ‘flags protest’ in 2012 and 2013. The issue was not as to the care and effort taken, but an alleged misunderstanding of their powers.
Held: Treacy . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.540458

McGrath and others v Riddell and others: HL 9 Apr 2008

(Orse In Re HIH Casualty and General Insurance Ltd)
HIH, an Australian Insurance company, became insolvent. An order was sought for the collection and remission of it assets in England under a letter of request from the Australia Court.
Held: Once it was accepted that an English court may order the liquidator here to remit funds to a foreign liquidator, it was clear that that foreign liquidator would apply the local rules for distribution: ‘the court had jurisdiction at common law, under its established practice of giving directions to ancillary liquidators, to direct remittal of the English assets, notwithstanding any differences between the English and foreign systems of distribution. These differences are relevant only to discretion.’
Lord Hoffmann (with whom Lord Walker was in full agreement) said that remission could be ordered at common law. He referred to a ‘general principle of private international law that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceedings in the court of the bankrupt’s domicile which receives worldwide recognition and it should apply universally to all the bankrupt’s assets.’ this was ‘a principle rather than a rule . . heavily qualified by exceptions on pragmatic grounds.’ and ‘The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross-border insolvency law since the 18th century. That principle requires the English courts, so far as is consistent with justice and UK public policy, co-operate with the courts in the country of the principal liquidation to ensure that all the company’s assets are distributed to its creditors under as single system of distribution.’
Lord Scott, whilst agreeing that it is desirable as a general proposition that there should be one universally applicable scheme of distribution of the assets of an insolvent company, did not agree with Lord Hoffmann that the court had power to remit the assets to Australia other than pursuant to the statutory power.
Lord Neuberger’s speech was to the same effect in this regard.
Lord Phillips agreed that it was in accordance with international comity and the principle of universalism that the assets should be remitted to Australia pursuant to the statutory power but did not stray into the ‘controversial area’ of whether, in the absence of statutory jurisdiction, the same result could have been reached under a discretion available under the common law

Lord Hoffmann, Lord Phillips of Worth Matravers, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Neuberger of Abbotsbury
Times 09-Apr-2008, [2008] UKHL 21, [2008] 1 WLR 852, [2008] BPIR 581, [2008] Lloyd’s Rep IR 756, [2008] BCC 349, [2008] 3 All ER 869, [2008] Bus LR 905
Bailii, HL
Insolvency Act 1986 426
England and Wales
Citing:
CitedRe Matheson Brothers Ltd 1884
The court appointed a provisional liquidator to protect the English assets of a New Zealand company which was being wound up in New Zealand. Kay J said: ‘[What] is the effect of the winding up order which it is said has been made in New Zealand? . .
CitedRe International Tin Council ChD 1987
An order for the winding up of a foreign company operates universally, applies to all the foreign company’s assets and brings into play the full panoply of powers and duties under the Insolvency Act 1986 like any other winding up order. Millett J . .
Appeal fromMcGrath and Honey v McMahon and Others, Re HIH Casualty and General Insurance Ltd and others CA 9-Jun-2006
The insurance company was to be wound up. It operated internationally but was registered in Australia. The Australian liquidator now sought an order for the transfer of assets held here to Australia.
Held: It was inevitable that cross border . .
CitedCambridge Gas Transport Corp v Official Committee of Unsecured Creditors (of Navigator Holdings Plc and Others) PC 16-May-2006
(Isle of Man) A scheme of arrangement was proposed for a company with involvement in several jurisdictions. An order in New York sought assistance in the vesting of shares and assets in the Isle of Man in the creditors committee. Cambridge was a . .
CitedIn the Matter of Drax Holdings Limited and in the Matter of InPower Limited ChD 17-Nov-2003
A company incorporated in Jersey comes within the Act for the purposes of the section. An English court has jurisdiction to wind up a foreign company if it has assets here or some other sufficient connection with this country. . .
CitedRe Bank of Credit and Commerce International SA (No 10) ChD 1997
An English court has power in an ancillary liquidation (provisional or final) to authorise the English liquidators to transmit the English assets to the principal liquidators in the company’s home country. The bases for this are the principles of . .
CitedForster v Wilson 1843
English law regards insolvency set off as a way of achieving substantial justice between the parties. . .
CitedRe Dallhold Estates (UK) Pty Ltd ChD 1992
The court discussed the the receipt and acceptance of a letter of request: ‘The scheme of subsection (5) appears to me to be this. The first step is to identify the matters specified in the request. Secondly, the domestic court should ask itself . .
CitedEngland v Smith CA 8-Dec-1999
A liquidator of an Australian company sought damages from a ‘world-wide’ company Arthur Andersen’ and sought in particular to examine a partner in the UK. Examination was at first refused since an English court would not make a similar order. That . .
CitedRe Paramount Airways Ltd (In Administration) CA 8-Apr-1992
It was said that there had been a transction at an undervalue within section 238. It was given effect by a transfer to a bank in Jersey, from which recovery was no sought. The bank claimed that the section did not have extra-territorial effect.
CitedIn re English, Scottish and Australian Chartered Bank 1893
Vaughan Williams J said: ‘One knows that where there is a liquidation of one concern the general principle is – ascertain what is the domicile of the company in liquidation; let the court of the country of domicile act as the principal court to . .
CitedAyerst (Inspector of Taxes) v C and K (Construction) Ltd HL 1976
A resolution or order for winding up of a company divests it of the beneficial interest in its assets. They become a fund which the company thereafter holds in trust to discharge its liabilities. Where a company is wound up in this country, its . .
CitedRe Suidair International Airways Ltd 1951
Insolvency law may enable the court to apply a foreign law. Wynn-Parry J said: ‘It appears to me that the simple principle is that this court sits to administer the assets of the South African company which are within its [i.e. the English court’s] . .

Cited by:
CitedGlobal Distressed Alpha Fund 1 Ltd Partnership v Pt Bakrie Investindo ComC 17-Feb-2011
Action on an instrument of guarantee.
Held: judgment for the Claimant in respect of the principal sum of US$2m. and such interest payments as were due. . .

Lists of cited by and citing cases may be incomplete.

Insolvency, International

Leading Case

Updated: 02 November 2021; Ref: scu.266540

Salomon v Customs and Excise Commissioners: CA 1966

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

Diplock LJ, Lord Denning MR
[1967] 2 QB 116, [1966] 2 All ER 340, [1966] 2 Lloyds Rep 460, [1966] 3 WLR 36
Convention on the Valuation of Goods for Customs Purposes of December 15, 1950
England and Wales
Cited by:
CitedRegina v F CACD 16-Feb-2007
The defendant was charged with offences for having been in possession of a document or record containing information of a kind ‘likely to be useful to a person committing or preparing an act of terrorism’. It was thought he was associated with a . .
CitedAdams, 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. . .
CitedThe 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.
CitedReferences (Bills) By The Attorney General and The Advocate General for Scotland – United Nations Convention On The Rights of The Child and European Charter of Local Self-Government SC 6-Oct-2021
Scots Bills were Outwith Parliament’s Competence
The AG questioned the constitutionaliity of Bills designed to give effect to two treaties to which the UK is a signatory, and passed by the Scottish Parliament as to the care of children.
Held: The laws had effect also outside Scotland . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.248851

In re J (a Minor) (Abduction: Custody rights): HL 1 Jul 1990

On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia but who, not having been married to the mother, had at that time no rights of custody in relation to the child. So the mother’s removal of him was not wrongful within the meaning of the 1980 Convention. On 12 April 1990, however, an Australian judge conferred rights of custody on the father. The House was asked whether a child had ceased to be habitually resident in Western Australia when his mother took him away with the settled intention of living in England.
Held: Habitual residence is a question of fact, to be decided in the light of all the circumstances.
Lord Brandon of Oakbrook said: ‘In considering this issue it seems to me to be helpful to deal first with a number of preliminary points. The first point is that the expression ‘habitually resident,’ as used in article 3 of the Convention, is nowhere defined. It follows, I think, that the expression is not to be treated as a term of art with some special meaning, but is rather to be understood according to the ordinary and natural meaning of the two words which it contains. The second point is that the question whether a person is or is not habitually resident in a specified country is a question of fact to be decided by reference to all the circumstances of any particular case. The third point is that there is a significant difference between a person ceasing to be habitually resident in country A, and his subsequently becoming habitually resident in country B. A person may cease to be habitually resident in country A in a single day if he or she leaves it with a settled intention not to return to it but to take up long-term residence in country B instead. Such a person cannot, however, become habitually resident in country B in a single day. An appreciable period of time and a settled intention will be necessary to enable him or her to become so. During that appreciable period of time the person will have ceased to be habitually resident in country A but not yet have become habitually resident in country B. The fourth point is that, where a child of J.’s age is in the sole lawful custody of the mother, his situation with regard to habitual residence will necessarily be the same as hers.’

Lord Brandon of Oakbrook, Lord Donaldson of Lymington MR
[1990] 2 AC 562, Times 31-Jul-1990, [2005] 3 WLR 14, [1990] 2 All ER 449
Child Abduction and Custody Act 1985
England and Wales
Citing:
Appeal fromC v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .

Cited by:
AppliedIn Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
CitedNessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
CitedRe J (A Child), Re (Child returned abroad: Convention Rights); (Custody Rights: Jurisdiction) HL 16-Jun-2005
The parents had married under shariah law. They left the US to return to the father’s home country Saudi Arabia. They parted, and the mother brought their son to England against the father’s wishes and in breach of an agreement. The father sought . .
CitedIn re K (Children) CA 27-Jul-2005
The mother appealed an order that her younger son be placed in care and freed for adoption. Hers and her children’s lives had been chaotic. Nevertheless she complained that she had not been given the opportunity to demonstrate her ability to care . .
CitedCollins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
CitedW v F FD 4-Apr-2007
Application by father for summary return of son to the USA. The mother said that the father had consented to his removal and acquiesced in his stay here.
Held: The mother had a settled intention to remain in the US when she first arrived, but . .
CitedRe KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
CitedA v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening) SC 9-Sep-2013
Acquisition of Habitual Residence
Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member . .
CitedRe B (A Child) SC 3-Feb-2016
Habitual Residence of Child not lost
(Orse In re B (A Child) (Reunite International Child Abduction Centre intervening)) The Court considered the notion of habitual residence. The British girl with same sex parents had been taken to Pakistan, and her mother here sought her return. The . .
CitedRe C (Children) SC 14-Feb-2018
‘This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction. It raises general questions relating to:
(1) the place which the habitual residence of the child occupies in the scheme of that Convention, and . .
CitedIn Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 02 November 2021; Ref: scu.182951

Gorgeous Beauty Ltd v Liu and Others: ChD 22 Sep 2014

The claimant company was owned by members of a family and was formed to take ownership of land in Taiwan. The family members disputed whether property was held for the company or in trust for one particular family member.
Held: Fraud being alleged the court must exert particular caution before finding that allegations were established. ‘Taking everything into consideration, the conclusion I have come to is that the preponderance of the evidence supports Gorgeous Beauty’s case on each of the sub-issues which make up the key factual issue. I therefore conclude that the Longtan Property was purchased for the benefit of YSC’s shareholders, not for the benefit of William Liu, and that the Declaration of Trust was made without the consent of the majority of the shareholders in Gorgeous Beauty.’ Allowing the application of the law of Seychelles where appropriate, an award was made in the terms requested by the claimant.

Arnold J
[2014] EWHC 2952 (Ch)
Bailii
England and Wales
Cited by:
Main JudgmentGorgeous Beauty Ltd v Liu and Others (Costs) ChD 2-Oct-2014
. .

Lists of cited by and citing cases may be incomplete.

Trusts, International, Torts – Other

Updated: 02 November 2021; Ref: scu.537221

Canada Trust Company and others v Stolzenberg and others (2): CA 29 Oct 1997

The court looked at questions relating to domicile and jurisdiction; standard of proof, date to be determined and duties before service.
Held: The court is endeavouring to find an imprecise concept which reflects that the plaintiff must properly satisfy the court that it is right to take jurisdiction. That may involve considering matters which go both to jurisdiction and to the matter to be argued, e.g. the existence of a contract. ‘The question before the court should be decided on affidavits from both sides and without full discovery and/or cross-examination . . [The] ‘good arguable case’ test, although obviously applicable to the ex parte stage becomes of most significance at the inter partes stage. In the interlocutory context: ‘Good arguable case’ reflects that one side has a much better argument on the material available. It is the concept which the phrase reflects on which it is important to concentrate, i.e. of the court being satisfied or as satisfied as it can be having regard to the limitations which an interlocutory process imposes that factors exist which allows the court to take jurisdiction. It is a threshold below ‘ proved on a balance of probabilities but higher than ‘ serious question to be tried ‘good arguable case ‘ is a concept with some degree of flexibility depending on the issue.’

Waller, Nourse, Pill LJJ
Times 10-Nov-1997, [1997] EWCA Civ 2592, [1998] 1 WLR 547, [1998] 1 All ER 318
Bailii
Civil Jurisdiction and Judgments Act 1982
England and Wales
Citing:
See AlsoCanada Trust Company and others v Stolzenberg and others CA 28-Apr-1997
(Oral judgment, Millett LJ) The question was whether it is a proper exercise of discretion to refuse to make an order for the production of documents at an interlocutory hearing on the sole ground that they are wanted in order to establish the . .

Cited by:
CitedStaines v Walsh, Howard ChD 14-Mar-2003
The claimant sought an account from the defendant share broker for the proceeds of share transactions. The defendant said the matter should be tried in Hong Kong.
Held: The claimant must show a good arguable case. Here there was evidence to . .
CitedMazur Media Limited and Another v Mazur Media Gmbh in Others ChD 8-Jul-2004
Proceedings were brought in England. The respondents sought a stay, saying the company was subject to insolvency proceedings in Germany.
Held: Our domestic insolvency law was not applicable to foreign proceedings, and so could not be used to . .
Appeal fromCanada Trust Co and Others v Stolzenberg and Others (No 2) HL 12-Oct-2000
The plaintiffs alleged the involvement of the defendant in a conspiracy to defraud. He had been domiciled in England, but had moved to Germany. He denied that the UK court had jurisdiction. The court of appeal said that jurisdiction was determined . .
CitedSawyer v Atari Interactive Inc ChD 1-Nov-2005
The claimant owned the copyright in several successful computer games. He had granted licenses for the use of the software, which licences were assigned to the defendants. Disputes arose as to the calculation of royalty payments, and the claimant . .
See AlsoThe Canada Trust Co and Others v Stolzenberg and Others ChD 10-Nov-1997
A foreign resident defendant failing to comply with an order for discovery should be barred from defending after having been given notice. . .
See AlsoCanada Trust Co and Others v Stolzenberg and Others (No 4) CA 14-May-1998
When appealing against fully argued refusal of jurisdiction, parties may not bring in additional evidence at that appeal save in exceptional circumstances. . .
CitedAshton Investments Ltd. and Another v OJSC Russian Aluminium (Rusal) and others ComC 18-Oct-2006
The claimants sought damages for breach of confidence saying that the defendants had hacked into their computer systems via the internet to seek privileged information in the course of litigation. The defendants denied this and said the courts had . .
CitedFiona Trust Holding Corp and others v Privalov and others ComC 21-May-2007
Allegations were made of different varieties of fraud. Applications were made for freezing orders. . .
CitedVarsani v Relfo Ltd CA 27-May-2010
The defendant appealed against refusal of a declaration that the court had no jurisdiction to hear the claim. He said that he lived in Kenya, and the claimant had failed first to apply for leave to serve out of the jurisdiction. The claimant had . .
ApprovedBols Distilleries VB (T/A As Bols Royal Distilleries) and Another v Superior Yacht Services Ltd PC 11-Oct-2006
(Gilbraltar) The parties disputed the management contract for a racing yacht, and also the juridiction of the Supreme Court of Gibraltar to hear the case. Bols said that under regulation 2(1) Gibraltar had no jurisdiction.
Held: The English . .
CitedWilliams v Central Bank of Nigeria QBD 24-Jan-2012
The claimant asserted involvement by the defendant bank in a fraud perpetrated against him. Jurisdiction had already been admitted for one trust , and now the claimant sought to add two further claims.
Held: ‘None of the gateways to English . .
CitedFour Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.142991

Drouot assurances v Consolidated metallurgical industries and others: ECJ 19 May 1998

(Judgment) Where proceedings were brought in two member states, the second proceedings should not be automatically stayed where there was a difference in the actions such as an additional cause of action in the second claim. Lis alibi pendens is not appropriate in such a case. Cases which in fact involved different parties (ship owner and insurer) could be treated as the same for purposes of the convention only if the interests of the differing parties were genuinely identical.

Times 10-Jun-1998, Gazette 09-Sep-1998, C-351/96, ECJ/Cfi Bulletin 14/98, 7, [1998] EUECJ C-351/96
Bailii
Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters 1968

International, European

Leading Case

Updated: 02 November 2021; Ref: scu.161977

Upjohn Company v United States: 13 Jan 1981

Worldlii United States Supreme Court – When the General Counsel for petitioner pharmaceutical manufacturing corporation (hereafter petitioner) was informed that one of its foreign subsidiaries had made questionable payments to foreign government officials in order to secure government business, an internal investigation of such payments was initiated. As part of this investigation, petitioner’s attorneys sent a questionnaire to all foreign managers seeking detailed information concerning such payments, and the responses were returned to the General Counsel. The General Counsel and outside counsel also interviewed the recipients of the questionnaire and other company officers and employees. Subsequently, based on a report voluntarily submitted by petitioner disclosing the questionable payments, the Internal Revenue Service (IRS) began an investigation to determine the tax consequences of such payments and issued a summons pursuant to 26 U.S.C. ss 7602 demanding production of, inter alia, the questionnaires and the memoranda and notes of the interviews. Petitioner refused to produce the documents on the grounds that they were protected from disclosure by the attorney-client privilege and constituted the work product of attorneys prepared in anticipation of litigation. The United States then filed a petition in Federal District Court seeking enforcement of the summons. That court adopted the Magistrate’s recommendation that the summons should be enforced, the Magistrate having concluded, inter alia, that the attorney-client privilege had been waived and that the Government had made a sufficient showing of necessity to overcome the protection of the work-product doctrine. The Court of Appeals rejected the Magistrate’s finding of a waiver of the attorney-client privilege, but held that under the so-called ‘control group test’ the privilege did not apply ‘[t]o the extent that the communications were made by officers and agents not responsible for directing [petitioner’s] actions in response to legal advice . . for the simple reason that the communications were not the ‘client’s.’ ‘ The court also held that the work-product doctrine did not apply to IRS summonses.
Held:
1. The communications by petitioner’s employees to counsel are covered by the attorney-client privilege insofar as the responses to the questionnaires and any notes reflecting responses to interview questions are concerned.
(a) The control group test overlooks the fact that such privilege exists to protect not only the giving of professional advice to those who can act on it but also the giving of information to the lawyer to enable him to give sound and informed advice. While in the case of the individual client the provider of information and the person who acts on the lawyer’s advice are one and the same, in the corporate context it will frequently be employees beyond the control group (as defined by the Court of Appeals) who will possess the information needed by the corporation’s lawyers. Middle-level – and indeed lower-level employees can, by actions within the scope of their employment, embroil the corporation in serious legal difficulties, and it is only natural that these employees would have the relevant information needed by corporate counsel if he is adequately to advise the client with respect to such actual or potential difficulties.
(b) The control group test thus frustrates the very purpose of the attorney-client privilege by discouraging the communication of relevant information by employees of the client corporation to attorneys seeking to render legal advice to the client. The attorney’s advice will also frequently be more significant to noncontrol employees than to those who officially sanction the advice, and the control group test makes it more difficult to convey full and frank legal advice to the employees who will put into effect the client corporation’s policy.
(c) The narrow scope given the attorney-client privilege by the Court of Appeals not only makes it difficult for corporate attorneys to formulate sound advice when their client is faced with a specific legal problem but also threatens to limit the valuable efforts of corporate counsel to ensure their client’s compliance with the law.
(d) Here, the communications at issue were made by petitioner’s employees to counsel for petitioner acting as such, at the direction of corporate superiors in order to secure legal advice from counsel. Information not available from upper-echelon management was needed to supply a basis for legal advice concerning compliance with securities and tax laws, foreign laws, currency regulations, duties to shareholders, and potential litigation in each of these areas. The communications concerned matters within the scope of the employees’ corporate duties, and the employees themselves were sufficiently aware that they were being questioned in order that the corporation could obtain legal advice
2. The work-product doctrine applies to IRS summonses.
(a) The obligation imposed by a tax summons remains subject to the traditional privileges and limitations, and nothing in the language or legislative history of the IRS summons provisions suggests an intent on the part of Congress to preclude application of the work-product doctrine.
(b) The Magistrate applied the wrong standard when he concluded that the Government had made a sufficient showing of necessity to overcome the protections of the work-product doctrine. The notes and memoranda sought by the Government constitute work product based on oral statements. If they reveal communications, they are protected by the attorney-client privilege. To the extent they do not reveal communications they reveal attorneys’ mental processes in evaluating the communications. As Federal Rule of Civil Procedure 26, which accords special protection from disclosure to work product revealing an attorney’s mental processes, and Hickman v. Taylor, [1947] USSC 5; 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451, make clear, such work product cannot be disclosed simply on a showing of substantial need or inability to obtain the equivalent without undue hardship.

Justice Rehnqist
[1981] USSC 7, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584
Worldlii
Cited by:
CitedPrudential 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 . .

Lists of cited by and citing cases may be incomplete.

International, Legal Professions

Updated: 02 November 2021; Ref: scu.470876

Servaas Incorporated v Rafidain Bank and Others: ComC 14 Dec 2010

The claimant had supplied a factory to Iraq, but remained unpaid. Assets had been frozen in the respondent Iraqi bank, and with the new government, the liquidators were to pay assets to a fund who were, in turn to discharge debts pro rata. The appellant sought a third party debt order, but the respondent relied on section 13(4), saying that the buying in of the debts was a sovereign, and not a commercial, act, and it had certified it as such.
Held: The request was refused.
Arnold J said: ‘In my judgment SerVaas has no real prospect of successfully rebutting the presumption created by the Certificate for the reasons given by counsel for Iraq. In my view SerVaas’s argument wrongly conflates the transactions by which Iraq acquired the debts that are the subject of the Admitted Claims with the intended use of those assets. Iraq is not presently using those assets, but intends to pay the dividends on them to the DFI. That property is not being used to provide finance to Iraq, and it is immaterial that that property was acquired by means of bonds in the cases where the consideration took the form of bonds. Nor is the property being used or intended to be used for transactions ‘otherwise than in the exercise of sovereign authority’. Iraq has decided to transfer the distributions to the DFI in the exercise of its sovereign authority, albeit constrained in this respect by Resolution 1483, for the purposes set out in the resolution. I therefore conclude that Iraq’s Admitted Claims are entitled to immunity from execution by virtue of section 13(2)(b) of the 1978 Act.’

Arnold J
[2010] EWHC 3287 (Ch)
State Immunity Act 1978 13(4)
England and Wales
Citing:
See AlsoServaas Inc v Rafidain Bank and Others ChD 14-Dec-2010
Application for third party debt order. . .

Cited by:
At Commercial CourtServaas Incorporated v Rafidain Bank and Others CA 3-Nov-2011
A commercial debt due to the claimant from the former Iraqi government, and for which judgment had been obtained in France, had been bought from receivers by the new Iraqi Development fund. The appellants sought to secure their judgment in full by a . .
At Commercial CourtSerVaas Incorporated v Rafidian Bank and Others SC 17-Aug-2012
The appellant had contracted to construct a factory in Iraq. On the imposition of sanctions, the respondent bank’s assets were frozen. The appellant sought to recover the sums due to it, and obtained judgment in France. After the fall of Hussain, . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International, Commercial

Updated: 02 November 2021; Ref: scu.427223

Rubin and Another v Eurofinance Sa and Others: SC 24 Oct 2012

The Court was asked ‘whether, and if so, in what circumstances, an order or judgment of a foreign court . . in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue, will be recognised and enforced in England. The appeals also raise the question whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the Cross-Border Insolvency Regulations 2006 . . which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia.’
Held: In Rubin, the appeal succeeded (Lord Clarke dissenting); there should not be special rules for avoidance judgments. The appeal in New Cap failed, since the Syndicate had submitted to the Australian jurisdiction.
A court in one jurisdiction may give a judgment in personam which is a proper basis for recognition and enforcement where the defendant (i) was present in the foreign court when the proceedings were instituted; or (ii) was a claimant, or had counterclaimed, in the foreign proceedings; or (iii) submitted to the jurisdiction of that foreign court by voluntarily appearing in the proceedings; or (iv) had agreed to submit to the jurisdiction of the foreign court before the proceedings began.
However the interests of univeraslity of insolvency were not sufficient to give them more liberal enforcement than in other matters, since this would inevitably lead to further complications. Any change would require parliamentary action.

Lord Walker, Lord Mance, Lord Clarke, Lord Sumption, Lord Collins
[2012] UKSC 46, [2012] 3 WLR 1019, [2012] 2 Lloyd’s Rep 615, [2012] WLR(D) 285, [2012] 2 BCLC 682, UKSC 2010/0184, [2013] Bus LR 1, [2013] BCC 1, [2013] 1 All ER 521, [2012] BPIR 1204, [2013] 1 All ER (Comm) 513, [2013] 1 AC 236
Bailii, Bailii Summary, SC Summary, SC, WLRD
Insolvency Act 1986 426, Cross-Border Insolvency Regulations 2006
England and Wales
Citing:
CitedWilliams v Jones 22-Jan-1845
An action of debt lies upon a judgment of a county court. And the declaration need not state that the defendant resided within the jurisdiction of the county court, or was liable to be summoned to that court for the debt ; it is enough to state that . .
CitedGodard v Gray 1870
A judgment in personam of a foreign court of competent jurisdiction cannot be questioned by the parties on the merits when recognition or enforcement of the judgment is sought in England, notwithstanding that it may have been wrong either in fact or . .
CitedSolomons v Ross 1764
A firm in Amsterdam was declared bankrupt and assignees were appointed. An English creditor brought garnishee proceedings in London to attach andpound;1200 owing to the Dutch firm.
Held: The court decreed that the bankruptcy had vested all the . .
CitedGalbraith v Grimshaw and Baxter HL 2-Jan-1910
Where a Scottish sequestration occurred shortly after an English garnishee order nisi, the judgment creditor prevailed over the trustee in bankruptcy, although the result would have been different if both the attachment and the bankruptcy had . .
CitedAdams v Cape Industries plc CA 2-Jan-1990
Proper Use of Corporate Entity to Protect Owner
The defendant was an English company and head of a group engaged in mining asbestos in South Africa. A wholly owned English subsidiary was the worldwide marketing body, which protested the jurisdiction of the United States Federal District Court in . .
At First InstanceIn re New Cap Reinsurance Corporation Ltd ChD 15-Mar-2011
. .
Appeal fromNew Cap Reinsurance Corporation Ltd and Another v Grant and Others CA 9-Aug-2011
The court was asked whether Mr Gibbons, liquidator of New Cap Reinsurance Corporation Ltd (New Cap), could enforce in England an order which provided, among other things, for the payment of sums of money by the Defendants to New Cap, which he . .
At First InstanceRubin and Another v Eurofinance Sa and Others ChD 31-Jul-2009
. .
CitedOwens Bank Ltd v Bracco and Another (No2) HL 17-Jun-1992
The bank had obtained judgment in St Vincent to recover a loan. It now sought to register the judgment here for enforcement. The defendant wanted to argue that the judgment had been obtained by fraud, and to resist registration of the judgment. The . .
CitedGalbraith v Grimshaw and Baxter CA 1910
A garnishee order nisi does not operate as a transfer of the property in the debt, but it is an equitable charge on it, and the garnishee cannot pay the debt to any one but the garnishor without incurring the risk of having to pay it over again to . .

Cited by:
CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Insolvency, International

Leading Case

Updated: 02 November 2021; Ref: scu.465185

Shergill and Others v Khaira and Others: SC 11 Jun 2014

The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay.
Held: The appeal was allowed. The matter was justiciable and should be allowed to go to a hearing. The dispute related to the ownership, possession or control of property held on trust. It may have been within the power of the trustees to agree to the clauses in the disputed documents, and were unable to challenge its validity, deriving their own status from it.
The Court referred to a type of foreign act of state under the head of non-justiciability which it said ‘refers to a case where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter’ (even though it would otherwise be within the English courts’ jurisdiction under, for example, the Brussels Regulation and Lugano Convention or the rules of court). Lord Oliver of Aylmerton went on to say that such cases ‘generally fall into one of two categories’:
(i) The first was where the issue was ‘beyond the constitutional competence assigned to the courts under our conception of the separation of powers’, of which the ‘paradigm cases are the non-justiciability of certain transactions of foreign states and of proceedings in Parliament’. The distinctive feature of such cases was that ‘once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable’. Buttes Gas falls into this category.
(ii) The second category was of cases not involving private legal rights or obligations or reviewable matters of public policy, and included ‘issues of international law which engage no private right of the claimant or reviewable question of public law’. Such issues were not justiciable in the abstract, but ‘must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable’. Examples of this second category, where no private right or reviewable question of public law was engaged, are Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56, where the Nabob was seeking to sue for an account due under an international treaty, and JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, where the House of Lords stated that it is ‘axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law’

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
[2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, UKSC 2012/0234, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243
Bailii, Bailii Summary, WLRD, SC Summary, SC
England and Wales
Citing:
Appeal fromKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
CitedCraigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .
CitedIn re Orphan Working School and Alexandra Orphanage’s Contract 1912
An established trust had collected subscriptions over many years, ptting those subscriptions wth other funds derived from the sale of one school property for the purchase of another. That property in turn came to be sold, and questions arose as to . .
CitedAttorney-General v Mathieson CA 1907
The Rev John Wilkinson, ran charities in Stoke Newington in London, including ‘the Mildmay Mission to the Jews’. He was given received andpound;1350 from ‘a lady’ locally who suggested that the money be used for a convalescent home. He pointed out . .
CitedUnderhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .
CitedButtes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
CitedJeeves v Imperial Foods Ltd, Pension Scheme ChD 27-Jan-1986
Walton J explained that there may be many ‘occasions in law in which a fund is held on trust, but at the particular point there is no final definitive trust deed’. He went on to say that ‘it may very well be that . . a person who had contributed to . .
CitedPrebble 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 . .
CitedHamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
CitedCampaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
CitedBruker v Marcovitz 14-Dec-2007
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – . .
CitedAl-Haq, Regina (On the Application of) v Secretary Of State for Foreign and Commonwealth Affairs Admn 27-Jul-2009
The claimant sought a declaration that the UK was in breach of its international obligations. The claimant was a non-governmental human rights organisation based in Palestine. The respondent argued that the issue was beyond the court’s jurisdiction, . .
CitedBarker v O’Gorman ChD 1971
The plaintiff sought to challenge to a proposed union between the Methodist Church and the Church of England on the ground that the Methodist Conference had no power to vary the doctrinal standards of the former church. . .
CitedRegina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
CitedSyndicat Northcrest v Amselem 30-Jun-2004
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs . .
CitedGentle, 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 . .
CitedLong v Lord Bishop of Cape Town PC 13-Feb-1863
After constitutional government had been granted to a colony, the Crown, by letters patent appointing a bishop, could no longer grant any coercive ecclesiastical jurisdiction to him. The church could be nothing more than a voluntary association.
CA CostsKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

Cited by:
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
At SCKhaira and Others v Shergill and Others ChD 23-Mar-2016
. .
At SCShergill and Others v Khaira and Others ChD 3-Mar-2017
The court considered the identification of one of the ancient Sikh gurus in order to ascertain the rights of current gurdwaras . .
At SCKhaira and Others v Shergill and Others CA 27-Oct-2017
‘This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to . .
CitedMiller, 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 . .
CitedCherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .

Lists of cited by and citing cases may be incomplete.

Trusts, International

Leading Case

Updated: 02 November 2021; Ref: scu.526418

Kuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5): HL 16 May 2002

After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim lay for the four planes destroyed by Allies’ action, but the Iraqi airline was responsible for the other six. It was legitimate for an English court to have regard to the content of international law in deciding whether to recognise a foreign law. The Iraqi action was a clear breach of international law. The planes had been converted. That it had been done originally by the Iraqi state was no effective defence. Every person through whose hands goods passed in a series of conversions was himself guilty of conversion. Conversion of goods is so various that a precise definition is nigh impossible. The features of the tort are threefold. First the defendant’s conduct was inconsistent with the rights of the owner (or other person entitled to possession). Second, the conduct was deliberate, not accidental. Third, the conduct was so extensive an encroachment on the rights of the owner as to exclude him from use and possession of the goods. The contrast is with lesser acts of interference.
Hoffmann L said: ‘There is no uniform causal requirement for liability in tort. Instead, there are varying causal requirements, depending upon the basis and purpose of liability. One cannot separate questions of liability from questions of causation . . the question of causation is decided by applying the rules which lay down the causal requirements for that form of liability to the facts of the case.’
Lord Nichols discussed the identification of losses flowing from a tort, saying: ‘How, then does one identify a plaintiff’s ‘true loss’ in cases of tort? This question has generated a vast amount of legal literature. I take as my starting point the commonly accepted approach that the extent of a defendant’s liability for the plaintiff’s loss calls for a twofold inquiry: whether the wrongful conduct causally contributed to the loss and, if it did, what is the extent of the loss for which the defendant ought to be held liable. The first of these inquiries, widely undertaken as a simple ‘but for’ test, is predominately a factual inquiry. The application of this test in cases of conversion is the matter now under consideration. I shall return to this in a moment.
The second inquiry, although this is not always openly acknowledged by the courts, involves a value judgment (‘ought to be held liable’). Written large the second inquiry concerns the extent of the loss for which the defendant ought fairly or reasonably or justly to be held liable (the epithets are unchangeable). To adapt the language of Jane Stapleton in her article ‘Unpacking ‘Causation” in Relating to Responsibility, ed Cane and Gardner (2001), p 168, the inquiry is whether the plaintiff’s harm or loss should be within the scope of the defendant’s liability, given the reasons why the law has recognised the cause of action in question. The law has to set a limit to the causally connected losses for which a defendant is to be held responsible. In the ordinary language of lawyers, losses outside the limit may bear one of several labels. They may be described as too remote because the wrongful conduct was not a substantial or proximate cause or because the loss was the product of an intervening cause. The defendants’ responsibility may be excluded because the plaintiff failed to mitigate his loss. Familiar principles, such as foreseeability, assist in promoting some consistency of general approach. These are guidelines, some more helpful than others, but they are never more than this.’

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hoffmann, Lord Hope of Craighead and Lord Scott of Foscote
Times 21-May-2002, [2002] 2 WLR 1353, [2002] 2 AC 883, [2002] UKHL 19
House of Lords, Bailii
Torts (Interference with Goods) Act 1977 11(3)
England and Wales
Citing:
CitedButtes Gas and Oil Co v Hammer (No 3) HL 1981
In a defamation action, issues arose as to two conflicting oil concessions which neighbouring states in the Arabian Gulf had granted over their territorial and offshore waters. The foreign relations of the United Kingdom and Iran were also involved . .
CitedOppenheimer v Cattermole (Inspector of Taxes) HL 5-Feb-1975
HL Income tax, Schedule D – Foreign possessions – Double taxation relief – German government pension for past services – Paid to British subject of German origin – Whether German nationality deemed to be retained . .
Appeal fromKuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-Nov-2000
If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in . .
See AlsoKuwait Airways Corporation v Iraqi Airways Company and Another (No 2) HL 8-Feb-2001
Where a party sought to allege that a decision of the House had been obtained by the other party having presented perjured evidence, the correct remedy was not to petition the House direct for this purpose. Such a case would involve investigation of . .

Cited by:
CitedMarcq v Christe Manson and Woods (t/a Christies) QBD 29-Oct-2002
The claimant sought damages for conversion from the respondent auctioneers as bailees. The painting had been registered as stolen. It failed to achieve its reserve and had been returned.
Held: It was for a bailee to prove that he had acted in . .
CitedCoflexip Sacoflexip Stena Offshore Limited v Stolt Offshore Limitedstolt Offshore Limited Stolt Offshore A/S CA 13-Mar-2003
In proceedings already heard the defendant had been found liable for patent infringement, and damages remained to be assessed. They claimed for loss of profits and royalties, and for damages through dilution of the market. The claimants said that to . .
CitedPeer International Corporation Southern Music Publishing Company Inc Peermusic (UK) Limited v Termidor Music Publishers Limited Termidor Musikverlag Gmbh and Co Kg -And-Editoria Musical De Cuba CA 30-Jul-2003
Peer sought declarations that they were the owners, or licensees, of the UK copyright in musical works composed by Cuban nationals, relying on assignments in writing by the composers and in some instances by their heirs. The defendants claimed under . .
FollowedLoftus-Brigham and Another v London Borough of Ealing CA 28-Oct-2003
The claimants sought to recover for damages caused to their house foundations by trees growing nearby which were the responsibility of the defendants. The defendants replied that the damages was caused in part by roots from virgina creeper and . .
CitedFairchild 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 . .
CitedJones and Milling, Olditch and Pritchard, and Richards v Gloucestershire Crown Prosecution Service CACD 21-Jul-2004
The court considered the extent to which the defendants in the proceedings can rely on their beliefs as to the unlawfulness of the United Kingdom’s actions in preparing for, declaring, and waging war in Iraq in 2003 in a defence to a charge of . .
CitedChester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
CitedOBG Ltd OBG (Plant and Transport Hire) Ltd v Raymond International Ltd; OBG Ltd v Allen CA 9-Feb-2005
The defendants had wrongfully appointed receivers of the claimant, who then came into the business and terminated contracts undertaken by the business. The claimant asserted that their actions amounted to a wrongful interference in their contracts . .
CitedBorders (UK) Ltd and others v Commissioner of Police of the Metropolis and Another CA 3-Mar-2005
The second defendant had received large numbers of stolen books and sold them from his stall. An application for compensation was made at his trial. Compensatory and exemplary damages were sought, but the court had to consider how to estimate the . .
CitedKuwait Airways Corporation v Iraqi Airways Company (No 6) CA 16-Mar-2005
The defendant company appealed against an order allowing inspection of documents for which litigation privilege had been claimed. It was said that the defendants had been involved in perjury in previous proceedings between the parties.
Held: . .
CitedVision Golf v Weightmans (a Firm) ChD 26-Jul-2005
The defendant solicitors were joint tortfeasors, having failed to make an application to court in a timely fashion, when it might have succeeded. It defended the claim saying that had the claimant issued proceedings against a second firm that firm . .
CitedVision Golf Ltd v Weightmans (A Firm) ChD 26-Jul-2005
A lease had been forfeited. The defendant firm of solicitors had negligently failed to apply for relief. They argued that that failure had in fact caused no loss to the claimants, since they would have lost the lease anyway.
Held: The ‘but . .
CitedA 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 . .
CitedAl-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
CitedScheps v Fine Art Logistic Ltd QBD 16-Mar-2007
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum . .
CitedScheps v Fine Art Logistic Ltd QBD 16-Mar-2007
The claimant bought fine art sculptures by Anish Kapoor at auction. They were stored by the defendant who when called upon to deliver them, said they had possibly been thrown away as rubbish. The defendant sought to limit its liability to the sum . .
CitedWhite v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
CitedSpencer v Wincanton Holdings Ltd (Wincanton Logistics Ltd) CA 21-Dec-2009
The claimant suffered injury for which he sought compensation from his employers. He later had to have his leg amputated as a consequence, but then through his own inadvertence suffered further injury to his other leg and a complete loss of . .
CitedChubb Fire Ltd v The Vicar of Spalding and Churchwardens and Church Council of The Church of St Mary and St Nicholas, Spalding CA 20-Aug-2010
The appellants had supplied a dry powder extinguisher to the church. Vandals discharged the extinguisher, requiring substantial sums to be spent cleaning the dust. The church’s insurers sought to recover the costs saying that the appellant should . .
CitedLumba (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 . .
CitedThe Rugby Football Union v Viagogo Ltd QBD 30-Mar-2011
The claimant objected to the resale through the defendant of tickets to matches held at the Twickenham Stadium. The tickets contained terms disallowing resales at prices over the face value. They sought orders for the disclosure of the names of the . .
CitedAziz v Lim QBD 5-Apr-2012
The claimant sought damages in an alleged conversion of valuable jewelry by the defendants. The defendant said that she had sold them with the consent of the claimant and used the proceeds to pay, as directed, the claimant’s gambling debts.
CitedCox v Ergo Versicherung Ag CA 25-Jun-2012
The deceased member of the armed forces had died in a road traffic accident in Germany. The parties didputed whether the principles governing the calculation of damages were those in the 1976 Act and UK law, or under German law.
Held: ‘There . .
CitedCox v Ergo Versicherung Ag SC 2-Apr-2014
The deceased army officer serving in Germany died while cycling when hit by a driver insured under German law. His widow, the claimant, being domiciled in England brought her action here, claiming for bereavement and loss of dependency. The Court . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, International, Damages

Leading Case

Updated: 02 November 2021; Ref: scu.170323

JS (Sri Lanka), Regina (on The Application of) v Secretary of State for The Home Department: SC 17 Mar 2010

The asylum seeker was accused of complicity in war crimes in Sri Lanka. He had worked as an intelligence officer but his cover had been broken and he fled to the UK. It was said that he was excluded from protection as an asylum seeker.
Held: The Home Secretary’s appeal failed. Article 28 is to the Rome Statute of the International Criminal Court should now be the starting point for considering whether an applicant is disqualified from asylum by virtue of article 1F(a), adopting also the constituents of criminal liability set out by Toulson LJ in the CA. On the facts the Home Secretary’s judgement could not be supported. The organisation was not predominantly terrorist as had been described, but the nature of the organisation itself is only one of the relevant factors in play and it is best to avoid looking for a ‘presumption’ of individual liability, ‘rebuttable’ or not, and ‘Whether the organisation in question is promoting government which would be ‘authoritarian in character’ or is intent on establishing ‘a parliamentary, democratic mode of government’ is quite simply nothing to the point in deciding whether or not somebody is guilty of war crimes. War crimes are war crimes however benevolent and estimable may be the long-term aims of those concerned. And actions which would not otherwise constitute war crimes do not become so merely because they are taken pursuant to policies abhorrent to western liberal democracies.’
The language of the international statute in referring to modes of complicity in war crimes was wider than were similar provisions in domestic criminal codes: ‘article 1F disqualifies those who make ‘a substantial contribution to’ the crime, knowing that their acts or omissions will facilitate it.’
Lord Brown recorded that: ‘It is common ground between the parties (i) that there can only be one true interpretation of article 1F(a), an autonomous meaning to be found in international rather than domestic law; (ii) that the international instruments referred to in the article are those existing when disqualification is being considered, not merely those extant at the date of the Convention; (iii) that because of the serious consequences of exclusion for the person concerned the article must be interpreted restrictively and used cautiously; and (iv) that more than mere membership of an organisation is necessary to bring an individual within the article’s disqualifying provisions.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 15, UKSC 2009/0121, [2010] WLR (D) 79, [2010] 2 WLR 766, [2011] 1 AC 184
Bailii, Bailii Summary, SC Summary, SC, WLRD
Refugee or Person in Need of International Protection (Qualification) Regulations 2006 (SI 2006/2525), Qualification Directive (2004/83/EC) 12(2)(a), Convention relating to the Status of Refugees done at Geneva on 28 July 1951 1F(a), Protocol relating to the Status of Refugees done at New York on 31 January 1967 (the, Rome Statute of the International Criminal Court 28
England and Wales
Citing:
CriticisedIG (Indra Gurung) (Exclusion, Risk, Maoists) Nepal CG (Starred) IAT 14-Oct-2002
The Tribunal gave guidance to adjudicators on the proper approach to the Refugee Convention’s Exclusion Clauses at Art 1F. The claimant had been a film star but was said to have become involved in a Maoist movement said to be involved in terrorism. . .
Appeal fromJS (Sri Lanka), Regina (on the Application of) v Secretary Of State for the Home Department CA 30-Apr-2009
Joint Enterprise Liability – War Crimes accusation
The applicant appealed against an order for his removal. He was accused of complicity in war crimes.
Held: To find an asylum seeker to be subject to the Rome statute so as to exclude him from protection it had to be shown that there had been a . .
CitedAl-Sirri v Secretary of State for the Home Department and Another CA 18-Mar-2009
The applicant appealed against rejection of his asylum claim on the basis of his alleged involvement in acts of terrorism. He had been set to face trial but the charges were dropped for insufficient evidence.
Held: Sedley LJ considered the . .
CitedKJ (Sri Lanka) v Secretary of State for the Home Department CA 2-Apr-2009
The asylum claimant was a Tamil whose surveying and reconnaissance work in support of LTTE military operations enabled that group more accurately to target the Sri Lankan forces. The appellant was never involved in any conflict causing injury or . .

Cited by:
CitedAl-Sirri v Secretary of State for The Home Department SC 21-Nov-2012
The appellants had been refused refugee status on the ground that they were suspected of having been guilty of terrorist acts. They said that the definition of terrorism applied within the UK was wider than that in the Convention which contained the . .
CitedVB and Others v Westminster Magistrates SC 5-Nov-2014
Extraditions to follow normal open justice rules
Application was made by Rwanda for the extradition of four individuals to face crimes said to have been committed during their civil war. Witnesses were prepared to give evidence but only in private and not being seen by the representatives of . .

Lists of cited by and citing cases may be incomplete.

Immigration, International

Updated: 01 November 2021; Ref: scu.403312

Yemgas Fzco and Others v Superior Pescadores Sa: CA 24 Feb 2016

The court considered the limitation on a shipowner’s liability, and how this had been implemented by Belgium.
Held: Given the absence of any evidence as to how Belgium had implemented the Hague Visby Rules, the court went on the basis that it was similar to the way it had been implemented in the UK. The English rules provided that the Rules had the force of statute. The matter was therefore subject to those rules, nd liability limited accordingly.

Longmore, Tomlinson, McCombe LJJ
[2016] EWCA Civ 101, [2016] WLR(D) 97
Bailii, WLRD
Carriage of Goods by Sea Act 1971
England and Wales

Transport, International, Damages

Updated: 02 November 2021; Ref: scu.560238

Embassy of Brazil v De Castro Cerqueira: EAT 28 Mar 2014

EAT Jurisdictional Points : State Immunity – An employee at the Brazilian Embassy in London was dismissed having reached the age of 70. He contended that he had been unfairly dismissed and that the dismissal constituted unlawful jurisdiction on the grounds of age. The claim form was served in accordance with the provisions of section 12(1) of the State Immunity Act 1978, that is by being transmitted via the Foreign and Commonwealth Office to the Ministry of Foreign Affairs in Brasilia. The Embassy contended that that service was ineffective as it was not a form of service provided for under Brazilian law. The Employment Appeal Tribunal held that Parliament did not intend to provide for a method of service in a State which involved the doing of something in that State which was contrary to the law of that State. Contrary to law in this sense meant that the act was prohibited under the law of the State concerned. The Embassy accepted that there was no evidence that service at the Ministry of Foreign Affairs was prohibited by the law of Brazil. In those circumstances, service in accordance with the provisions of section 12(1) was effective service for the purposes of the law of England and Wales (even if it would not have been effective for the law of Brazil). Consequently, the claim in the present case had been validly served.

Lewis J
[2014] UKEAT 0456 – 13 – 2803
Bailii
State Immunity Act 1978 12(1)
England and Wales

Employment, International

Updated: 02 November 2021; Ref: scu.523367

Bristow, Regina (on The Application of) v Secretary of State for Justice and Another: Admn 16 Oct 2013

Release date for prisoner convicted abroad and repatriated.

Lord Justice Moses
[2013] EWHC 3094 (Admin)
Bailii
Repatriation of Prisoners Act 1984
England and Wales
Cited by:
CitedStott, Regina (on The Application of) v Secretary of State for Justice SC 28-Nov-2018
Extended Determinate Sentence created Other Status
The prisoner was subject to an extended determinate sentence (21 years plus 4) for 10 offences of rape. He complained that as such he would only be eligible for parole after serving two thirds of his sentence rather than one third, and said that . .

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, International, Human Rights

Updated: 01 November 2021; Ref: scu.516541

Al-Juffali v Estrada: CA 22 Mar 2016

The appellant husband appealed agains the refusal of the court to strike out the claim for financiall relief requested on the ground that the appellant had diplomatic immunity as Permanent Representative of St Lucia to the International Maritime Organisation.

Lord Dyson MR, King LJ, Hamblen LJ
[2016] EWCA Civ 176, [2016] WLR(D) 163, [2017] 1 FLR 702, [2016] 2 FCR 477, [2016] Fam Law 673, [2017] Fam 35, [2016] 3 WLR 243, [2017] 1 All ER 790
Bailii, WLRD
Matrimonial and Family Proceedings Act 1984
England and Wales

Family, International

Updated: 01 November 2021; Ref: scu.561201

In Re H (Children) (Custody Rights: Jurisdiction): CA 29 Jul 2014

The father appealed against refusal of an order requiring the mother of his children to return them to this country from Bangladesh.
Held: The appeal failed. There is no longer any rule that where two parents had parental responsibility for a child, neither could unilaterally change the child’s habitual residence. The proper approach was a factual inquiry particular to the circumstances of each case. Where the issue related to removal of children to a country outside the EU, jurisdiction to determine an application for their return remained with the courts of England and Wales.

Richards, Black, Vos LJJ
[2014] EWCA Civ 1101, [2014] WLR(D) 343, [2015] 1 FLR 1132, [2014] 3 FCR 405, [2015] 1 WLR 863, [2014] Fam Law 1523
Bailii, WLRD
England and Wales
Cited by:
CitedAR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.535399

NML Capital Ltd v Argentina: SC 6 Jul 2011

The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets in the UK. They argued that the terms of issue waived state immunity.
Held: The appeal succeeded. The respondent, under section 31 of the 1982 Act had submitted to the jurisdiction and had waived immunity by its actions. The doctrine of state immunity had over many years come to be restricted, and the 1978 Act now contained a complete statement of the law. Immunity remains, but does not attach to a sovereign authority’s commercial activities.
The phrase ‘proceedings relating to a commercial transaction’ was to be given a broad rather than narrow meaning.

Lord Phillips, President Lord Walker Lord Mance Lord Collins Lord Clarke
[2011] UKSC 31, UKSC 2010/0040
Bailii, Bailii Summary, SC Summary, SC
Civil Jurisdiction and Judgments Act 1982, State Immunity Act 1978, Civil Procedure Rules 6.20(9)
England and Wales
Citing:
Appeal FromRepublic of Argentina v NML Capital Ltd CA 4-Feb-2010
The appellant republic appealed against an order allowing the enforcement against it of a judgment obtained in the US by the claimant. There is no treaty between the US and the UK for the mutual recognition and enforcement of judgments, and an . .
At First InstanceNML Capital Ltd v The Republic of Argentina ComC 29-Jan-2009
The defendant state sought to prevent the company enforcing a judgment entered against it in the USA.
Held: Where the judgment was properly obtained, a claim of sovereign immunity would not operate to allow avoidance of an enforcement of the . .
CitedThe Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
CitedMighell v Sultan of Johore CA 1-Dec-1893
In 1885 the Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
Held: The Sultan was entitled to immunity even though up to the time of suit ‘he has perfectly . .
CitedDuff Development Co v Kelantan Government HL 1924
Lord Sumner suggested that in the absence of a clear statement of the position from the Government, the court might be entitled to decide whether a defendat had the benefit of state immunity for itself on the basis of the evidence before it.
A . .
CitedCompania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
CitedKahan v Pakistan Federation 1951
State immunity can only be lost by a submission to the jurisdiction when it was invoked, and not by an earlier act. . .
CitedRahimtoola v Nizam of Hyderabad CA 1957
The court considered the doctrine of state immunity. Lord Denning MR said: ‘If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should . .
CitedTrendtex Trading Corporation v Central Bank of Nigeria CA 1977
The court considered the developing international jurisdiction over commercial activities of state bodies which might enjoy state immunity, and sought to ascertain whether or not the Central Bank of Nigeria was entitled to immunity from suit.
CitedThai-Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies 1975
Lord Denning said: ‘a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a . .
CitedAIC Limited v The Federal Government of Nigeria, the Attorney General of the Federation of Nigeria QBD 13-Jun-2003
AIC had used the 1920 Act to register a judgment obtained in Nigeria against the Nigerian Government. The underlying matter was a commercial transaction. Nigeria applied to set the registration aside, saying that registration was an adjudicative act . .
CitedSvenska Petroleum Exploration Ab v Lithuania and Another (No 2) ComC 4-Nov-2005
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not. . .
ApprovedSvenska Petroleum Exploration Ab v Lithuania and Another (No 2) CA 13-Nov-2006
The defendant state could not now claim state immunity to avoid enforcement of an arbitration award, having agreed to the reference to arbitration in writing.
Held: A person against whom an award has been made is not bound to challenge it . .
To be confined to its factsParker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .
CitedHolland v Leslie CA 1894
Leave to serve out of the jurisdiction had been granted in relation to a bill of exchange which had been erroneously described in the statement of claim indorsed on the writ.
Held: The Court upheld the order giving leave to amend the writ.
CitedMetall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
CitedRe Jogia (A Bankrupt) 1988
Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to . .
CitedWhite and others v Vandervell Trustees Ltd. (No. 2), Re Vandervell’s Trusts (No 2) CA 3-Jul-1974
Lord Denning MR described the modern practice concerning pleadings: ‘It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has . .
CitedWaterhouse v Reid 1938
The court has no power to make orders against persons outside its territorial jurisdiction unless authorised by statute and that there is no inherent extra-territorial jurisdiction. . .
CitedBeck v Value Capital Ltd (No 2) 1974
The plaintiffs had obtained leave to serve proceedings out of the jurisdiction. They then sought to add a claim and argued that once an additional cause of action was shown to be generically within the scope of Order 11, that was an end of the . .
CitedBastone and Firminger Ltd v Nasima Enterprises (Nigeria) Ltd and Others ComC 20-May-1996
Banking – collecting banker – remitting banker – privity of contract Banking – remitting bank – right to damages – other than indemnity by customer Conflict of laws – RSC Order 11 r.1(1)(f) – ‘damage sustained within the jurisdiction’ – meaning . .
CitedDonohue v Armco Inc and others HL 13-Dec-2001
The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
CitedMasri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
CitedTwycross v Dreyfus CA 1877
State immunity is not to be got around by suing the employees of the state. Here, the only possible case was against the state itself.
Sir George Jessel MR said: ‘the municipal law of this country does not enable the tribunals of this country . .
CitedUGS Finance Ltd v National Mortgage Bank of Greece CA 1964
Pearson LJ said: ‘As to the question of ‘fundamental breach’, there is a rule of construction that normally an exemption or exclusion clause or similar provision in the contract should be construed as not applying to a situation created by a . .
CitedAK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
CitedCarl Zeiss Stiftung v Rayner and Keeler Ltd (No 2) HL 1966
An agency had to be proved in a search to identify an entity which the law recognised (a) existed and (b) was legally responsible for the acts in issue in the proceedings. The House was asked whether the fact that an issue had already been . .
CitedDonegal International Ltd v Zambia and Another ComC 15-Feb-2007
Claim under settlement agreement. . .
MentionedColt Telecom Group Plc, In the Matter of the Insolvency Act 1986 ChD 20-Dec-2002
. .
MentionedBritish Wagon Co Ltd v Gray 1896
. .
CitedNational Bank of Greece SA v Westminster Bank Executor and Trustee Co (Channel Islands) Ltd 1971
. .
CitedYemshaw 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 . .
CitedHighberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) ChD 25-Nov-2002
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of . .
CitedFitzpatrick 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 . .
CitedMacaulay (Tweeds) Ltd v Independent Harris Tweed Producers Ltd 1961
The court considered an allegation of non-disclosure in the case of an application to serve proceedings abroad: ‘If the judge is satisfied that there was no intention to deceive and the mis-statement is not grossly negligent, he may think it better . .
CitedRoberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
CitedPlaya Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
CitedKuwait Oil Co (KSC) v Idemitsu Tankers KK, The Hida Maru CA 1981
. .
CitedHelby v Rafferty CA 1979
The court declined to hold that a man who had lived with a woman tenant for five years before her death were part of the same family because they had deliberately opted to retain their formal independence and they had not been recognised as being . .

Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 01 November 2021; Ref: scu.441502

Forsyth, Regina v, Regina v Mabey: SC 23 Feb 2011

The defendants were to face trial on charges of making funds available to Iraq in breach of the 2000 Order. They said that the 2000 Order was ultra vires and ineffective, not having been made ‘forthwith’ after the UN resolution it was based upon, but some ten years later.
Held: The appeal failed. The comparison with the case of Ahmed was inappropriate. The mischief complained of was quite different, and it was not necessary to go behind the terms of the 1946 Act: ‘Security Council Resolutions are not simply one-off measures requiring immediate implementation by member states and then receding into history, and that situations can develop in the course of their subsequent enforcement which call for further measures to be taken, sometimes with considerable urgency, to meet emerging problems. It would be not merely inappropriate as a matter of construction but regrettable as a matter of fact were this court now to stultify the power conferred under the 1946 Act by confining its exercise within an artificially restricted time-frame.’

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lady Hale, Lord Brown
UKSC 2010/0227, UKSC 2010/0226, [2011] UKSC 9, [2011] Lloyd’s Rep FC 232, [2011] 2 All ER 165, [2011] 2 WLR 277, [2011] 2 AC 69
Bailii Summary, SC Summary, SC, Bailii
Iraq (United Nations Sanctions) Order 2000 3(a) 11(4), United Nations Act 1946 1
England and Wales
Citing:
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedRegina v Secretary of State for the Home Department, Ex Parte Pierson HL 21-May-1997
The Home Secretary may not later extend the tariff for a lifer after it had been set by an earlier Home Secretary merely to satisfy needs of retribution and deterrence. ‘A power conferred by Parliament in general terms is not to be taken to . .
CitedRegina 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 . .

Lists of cited by and citing cases may be incomplete.

Crime, International

Updated: 01 November 2021; Ref: scu.429723

Collector of Stamp Revenue v Arrowtown Assets Ltd: 4 Dec 2003

(Hong Kong Final Court of Appeal) The court was asked as to the accounting treatment of interests incurred in the development for the purpose of generating the profits, and therefore whether the relevant Ordinance prohibited the capitalisation of interest for the purpose of computing the taxpayer’s assessable profits and allowable deductions.
Held: Where schemes involve intermediate transactions inserted for the sole purpose of tax avoidance, it is quite likely that a purposive interpretation will result in such steps being disregarded for fiscal purposes. But not always.
The resolution of that question depended on the proper accountancy treatment of capitalised interest.
Ribeiro PJ said: ‘The . . preferable, view is that the Ramsay principle does not espouse any specialised principle of statutory construction applicable to tax legislation, whatever its language, but continues to assert the need to apply orthodox methods of purposive interpretation to the facts viewed realistically. In common with Lord Hoffman in MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd [2003] 1 AC 311 . . I am of the view that Lord Brightman’s formulation in not a principle of construction, but, as stated above, a decision that the Court is entitled, for fiscal purposes, to disregard intermediate steps having no commercial purpose as a consequence of an orthodox exercise of purposive statutory construction.’ and ‘Accordingly, the driving principle in the Ramsay line of cases continues to involve a general rule of statutory construction and an unblinkered approach to the analysis of the facts. The ultimate question is whether the relevant statutory provisions, construed purposively, were intended to apply to the transaction, viewed realistically.’
Lord Millett NPJ said: ‘Both profits and losses therefore must be ascertained in accordance with the ordinary principles of commercial accounting as modified to conform with the Ordinance. Where the taxpayer’s financial statements are correctly drawn in accordance with the ordinary principles of commercial accounting and in conformity with the Ordinance, no further modifications are required or permitted. Where the taxpayer may properly draw its financial statements on either of two alternative bases, the Commissioner is both entitled and bound to ascertain the assessable profits on whichever basis the taxpayer has chosen to adopt. He is bound to do so because he has no power to alter the basis on which the taxpayer has drawn its financial statements unless it is inconsistent with a provision of the Ordinance. But he is also entitled to do so, with the result that the taxpayer is effectively bound by its own choice, not because of any estoppel, but because it is the Commissioner’s function to make the assessment and for the taxpayer to show that it is wrong.’ and . .
‘the subject is to be taxed by the legislature and not by the courts’.

Ribeiro PJ, Lord Millett NPJ
(2003) 6 ITLR 454, [2003] HKCFA 52, [2004] 1 HKLRD 77, (2003) 6 HKCFAR 517, ACV 4/2003
Hklii
England and Wales
Citing:
RestatedW T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
CitedMacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .

Cited by:
CitedBarclays Mercantile Business Finance Ltd v Mawson (HM Inspector of Taxes) HL 25-Nov-2004
The company had paid substantial sums out in establishing a gas pipeline, and claimed those sums against its tax as capital allowances. The transaction involved a sale and leaseback arrangement which the special commissioners had found to be a . .
CitedCampbell v Inland Revenue Commissioners SCIT 6-Jul-2004
SCIT INCOME TAX – Anti-Avoidance – Relevant discounted security – Loss on gift to wife – Subscription for security and gift part of scheme to produce loss – Avoidance not the Appellant’s sole purpose in . .
CitedUBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
CitedUber Bv and Others v Aslam and Others SC 19-Feb-2021
Smartphone App Contractors were as Workers
The court was asked whether the employment tribunal was entitled to find that drivers whose work was arranged through Uber’s smartphone application work for Uber under workers’ contracts and so qualify for the national minimum wage, paid annual . .

Lists of cited by and citing cases may be incomplete.

International, Taxes Management, Stamp Duty

Leading Case

Updated: 01 November 2021; Ref: scu.220504

Quazi v Quazi: HL 1979

The husband had pronounced a talaq in Pakistan, in accordance with the 1961 Muslim Family Ordinance. The question was whether the English court had jurisdiction on the wife’s petition to dissolve the marriage and make consequential orders relating to a house in Wimbledon in which the wife was living with their son and which belonged to the husband, and to make provision for their financial support.
Held: The talaq was to be recognised under the 1971 Act. Consequently there was no subsisting marriage and no power in the English court to make financial provision. If the legislative purpose of a statute is such that a statutory series should be read ejusdem generis, so be it: the rule is helpful. But, if it is not, the rule is more likely to defeat than to fulfil the purpose of the statute. The rule like many other rules of statutory construction, is a useful servant but a bad master.
Lord Diplock said that the framework of compulsory registration, backed by penal sanctions, and the fact that without performance of the Regulations the Talaq did not take effect, amounted to proceedings.
Lord Scarman rejected W’s submission that other proceedings required to be if not judicial at least quasi judicial, advised a more liberal approach, saying that that the Act (and the Convention from which it derived) must be construed broadly so that the proceedings test is met by any act or acts officially recognised as leading to the divorce in the country in which it was obtained and itself recognised by the law of that country as an effective divorce.
Lord Salmon construed the phrase ‘other proceedings’ widely as ‘any proceedings other than judicial proceedings’ provided they were effective, as required by the Act, under the laws of the country in which they were obtained.

Lord Scarman, Lord Fraser, Lord Diplock, Lord Salmon
[1979] 3 All ER 897 HL(E), [1979] 3 WLR 833, [1980] AC 744
Recognition of Divorces and Legal Separations Act 1971
England and Wales
Cited by:
CitedBristol Airport Plc and Another v Powdrill and Others CA 21-Dec-1989
An airline company went into administration. The airport seized two airplanes. The administrators claimed they were property within the administration, could not be seized without a court order, and the court should exercise its discretion not to . .
CitedRegina v Westminster City Council ex parte A, London Borough of Lambeth ex parte X and similar CA 17-Feb-1997
This was an appeal from orders of certiorari quashing the decisions of three local authorities refusing to provide accommodation for the respondents, four asylum seekers, whose applications for asylum were presently being considered by the Secretary . .
CitedAgbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
CitedH v S FD 18-Nov-2011
The court was asked whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the Sharia Court is entitled to be afforded recognition . .
CitedHewitson v Hewitson CA 6-Oct-1994
W (former) had obtained leave ex parte to seek financial relief, and the former H now requested that that leave be set aside. H and W had been divorced in California. W had signed a ante-nuptial agreement. W was now resident here. H argued that . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family, International

Leading Case

Updated: 01 November 2021; Ref: scu.181065

Ministry of Defence v Iraqi Civilians: SC 12 May 2016

Iraqi citizens claimed to have suffered unlawful detention and/or physical maltreatment from British armed forces in Iraq between 2003 and 2009. The claims were brought in tort in England against the Ministry of Defence, but the torts were governed by Iraqi law. Under the 1984 Act where a claim is brought in England but governed by foreign law, the English courts are to apply the foreign law of limitation. In many of these cases the action was begun more than three years after the relevant claimant became aware of the injury and the person who caused it, and was therefore time-barred under article 232 of the Iraqi Civil Code.
Held: The appeal failed.
‘The real question is whether it is legally relevant when the claimants have brought proceedings in England what impediments might have prevented similar proceedings in Iraq. The judge, as I have observed, regarded that as depending on the territorial ambit of article 435 as a matter of Iraqi law. On that footing it is obvious that a procedural time-bar arising under Iraqi law applied only in Iraq. But in my opinion, this was not a question of Iraqi law but of English law. In English proceedings, the relevant law is the Foreign Limitation Periods Act. Where the cause of action is governed by a foreign law, the Act requires an English court to ascertain the relevant rules of the foreign law of limitation and then to apply it to proceedings in England. Because the foreign law of limitation will have been designed for foreign proceedings, that necessarily involves a process of transposition. There may be facts which the foreign law of limitation would treat as relevant to foreign proceedings but which are irrelevant to proceedings in England.’
and ‘ The claimants’ submission, if accepted, would mean that there was no limitation period at all affecting the present proceedings in England, by reason of a consideration (CPA Order 17) which had no relevance to English proceedings because it has no application outside Iraq and has never impeded resort to the English court. The main argument advanced in support of it was that an English court applying the Act of 1984 must give effect to the whole of the relevant Iraqi law of limitation, and not just to part of it. This point was reinforced by reference to section 2 of the Act of 1984. Section 2(1) disapplies the relevant foreign law of limitation so far as its application would conflict with English public policy, and section 2(3) disapplies it so far as it suspends the running of time on account of ‘the absence of a party to the action or proceedings from any specified jurisdiction or country’. The point made is that where the Act disapplies some part of the foreign law of limitation, it does so expressly, thereby impliedly excluding its disapplication in any other circumstances. I reject the submission because it assumes that because the Iraqi law of limitation would treat certain facts as relevant to Iraqi proceedings, to treat those facts as irrelevant to English proceedings involves disapplying part of Iraqi law. It does not. It simply involves applying the same principles of Iraqi law to different facts. The facts relevant to proceedings in England are not necessarily the same as those which would be relevant to proceedings in Iraq.’

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Reed
[2016] UKSC 25, [2016] 1 WLR 2001, [2016] WLR(D) 261, UKSC 2015/0126
Bailii, Bailii Summary, WLRD, SC, SC Summary
Private International Law (Miscellaneous Provisions) Act 1995, Foreign Limitation Periods Act 1984
England and Wales
Citing:
At QBDIraqi Civilian Litigation v Ministry of Defence QBD 26-Jan-2015
The court considered limitation issues as an interim issue in this claim and particularly as it was affected by Iraqi law.
Held: The effective period of CPA 17 ended on 31 December 2008. No claim had been brought relating to any alleged act or . .
Appeal from CAMinistry of Defence v Iraqi Civilians CA 9-Dec-2015
‘This appeal raises a short but elusive point concerning the manner in which the English Court applies a foreign law relating to limitation when required to do so by section 1 of the Foreign Limitation Periods Act 1984’ . .

Lists of cited by and citing cases may be incomplete.

International, Limitation

Updated: 01 November 2021; Ref: scu.563387

El-Masri v The Former Yugoslav Republic of Macedonia: ECHR 13 Dec 2012

(Grand Chamber) The applicant, a German national of Lebanese origin, alleged that he had been subjected to a secret rendition operation, namely that agents of the respondent State had arrested him, held him incommunicado, questioned and ill-treated him, and handed him over at Skopje Airport to CIA agents who had transferred him, on a special CIA-operated flight, to a CIA-run secret detention facility in Afghanistan, where he had been ill-treated for over four months. The applicant submitted in evidence certain diplomatic cables. The court referred to articles in which journalists had reported that the US Ambassador in Germany had informed the German authorities that the CIA had wrongly imprisoned the applicant. The 1963 Vienna Convention on Consular Relations was cited under the heading ‘Relevant International Law and Other Public Material’, but only as to the obligation of competent authorities of the receiving state to inform the consular post of the sending state without delay of the arrest of one of its nationals under Article 36.
Held: The Court found Mr El-Masri’s account to be established beyond reasonable doubt and held that ‘the former Yugoslav Republic of Macedonia’ had been responsible for his torture and ill-treatment both in the country itself and after his transfer to the US authorities in the context of an extra-judicial ‘rendition’.
The court was careful in its findings not to rely on the leaked cables or on what the US Ambassador was said to have said to the German Government.

Nicolas Bratza, P
39630/09 – HEJUD, [2012] ECHR 2067, 34 BHRC 313, (2013) 57 EHRR 25
Bailii
European Convention on Human Rights
Human Rights
Cited by:
CitedBancoult, 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 . .
CitedCommissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .
CitedReprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .

Lists of cited by and citing cases may be incomplete.

Human Rights, International

Leading Case

Updated: 01 November 2021; Ref: scu.467121

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

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

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

Cited by:
CitedKuwait Airways Corporation v Iraqi Airways Company and Others (Nos 4 and 5) HL 16-May-2002
After the invasion of Kuwait, the Iraqi government had dissolved Kuwait airlines, and appropriated several airplanes. Four planes were destroyed by Allied bombing, and 6 more were appropriated again by Iran.
Held: The appeal failed. No claim . .
CitedJones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
CitedRegina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
CitedOccidental 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 . .
CitedRegina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn 19-Mar-1998
The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
CitedGentle 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.
CitedGentle, 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 . .
CitedCorner 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 . .
CitedKorea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
CitedLucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
CitedKhaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
CitedShergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Defamation, International, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179879

Hasan, Regina (on the Application of) v Secretary of State for Trade and Industry: CA 25 Nov 2008

The claimant appealed refusal of leave to bring judicial review of decisions to sell arms to the Israeli state. He lived in Palestine and said that Israel had destroyed his farm, and that licences broke the criteria under the 2002 Act. He said that public authorities are obliged at common law to publish reasons for administrative decisions whenever in all the circumstances the court is satisfied that the public interest so requires.
Held: The appeal failed. There was no public law duty of the sort asserted by the claimant. In the absence of some particular duty, there was no general duty to give reasons.
As to the Freedom of Information application, the 2000 Act may properly be seen as Parliament’s considered statutory framework for the disclosure of information held by public authorities, whose enactment militates against the incremental judicial perception of a common law duty to the same or any wider extent. Second, the fact that the complainant failed before the Information Commissioner goes nowhere to suggest that he or others ought to be enabled to succeed by other means. He failed because his application was outside the framework for disclosure enacted by Parliament.

[2008] EWCA Civ 1311
Bailii
Export Control Act 2002, Export of Goods, Transfer of Technology and Provision of Technical Assistance (Control) Order 2003, Freedom of Information Act 2000
England and Wales
Citing:
Appeal fromRegina (Hasan) v Secretary of State for Trade and Industry Admn 19-Nov-2007
The claimant, a Palestinian, sought to challenge licences authorising the sale of military equipment to Israel which had been used in turn to destroy his farm, and infringe his human rights.
Held: Permission was refused. Though overt . .
CitedRegina 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’, . .
CitedRegina v London Borough of Islington, ex parte Hinds QBD 1995
The court considered a request to review a decision on unintentional homelessness under Part III of the Housing Act 1985.
Held: Public confidence in the decision making process is enhanced by knowledge that supportable reasons are given and . .
CitedRegina v Secretary of State for Education, ex parte G 1995
The court was asked as to the need to give reasons in making a decision on a direction in a case of special educational needs. . .
CitedRegina v Islington London Borough Council ex parte Hinds 1995
. .
CitedRegina v Mayor, Commonalty and Citizens of the City of London, ex parte Matson CA 18-Aug-1995
The court considered the need to give reasons for the election of Aldermen. . .
CitedRegina v Aylesbury Vale District Council and Another; Ex Parte Chaplin and Others CA 19-Aug-1997
A Local Authority need not give its reasons for granting a planning application, even where a previous and identical application had been refused. . .
CitedWooder, Regina (on the Application of) v Feggetter and Dr Grah CA 25-Apr-2002
The patient challenged the treatment given to him against his will as a detained mental patient. He said the opinion of the second doctor as required under the Act, had not been put into writing.
Held: Following Wilkinson, which allowed a . .
CitedRegina v Kensington and Chelsea London Borough Council Ex Parte Grillo CA 13-Jun-1995
There was no general onus on Local Authorities to give reasons for their decisions in the absence of any explicit or particular duty. . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, International, Information

Updated: 01 November 2021; Ref: scu.278248

In re K (A Child): SC 15 Mar 2014

Rights of Custody under Convention

The Court was asked as to what were ‘rights of custody’ within the Convention. M had at first left her child with the maternal grandmother in an informal but long term arrangement in Latvia when M moved to Northern Ireland. Later M removed the child to Northern Ireland against the grandmother’s wishes. The court was now asked what was meant by ‘rights of custody’ within the conventions: ‘Is it to be interpreted strictly and literally as a reference to rights which are already legally recognised and enforceable? Or is it to be interpreted purposively as a reference to a wider category of what have been termed ‘inchoate rights’, the existence of which would have been legally recognised had the question arisen before the removal or retention in question? ‘
Held: The phrase ‘rights of custody,’ in articles 3 and 5(a) of the 1980 Convention and in article 2(9)(11) of the 2003 Council Regulation did not refer only rights which had already been legally recognised and were enforceable as such. The phrase was to be interpreted purposively, and as such would include reference to wider ‘inchoate rights’, the existence of which would have been legally recognised if the matter had arisen before the particular act of removal or retention in question.

Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Wilson, Lord Hughes
[2014] UKSC 29, [2014] 2 WLR 1304, [2014] WLR(D) 218, [2014] 2 FLR 629, UKSC 2014/0093, [2014] Fam Law 943, [2014] 1 AC 1401, [2014] NI 315, [2014] 2 FCR 231, [2014] 3 All ER 149
Bailii, Bailii Summary, WLRD, SC, SC Summary
Hague Convention on the Civil Aspects of International Child Abduction, Brussels II Revised Regulation
Northern Ireland
Citing:
CitedIn Re B (A Minor)(Child Abduction: Consent) CA 9-May-1994
A six year old boy, had lived in Western Australia all his life. Shortly prior to his removal from Australia, the mother had left Australia to live in Wales. The maternal grandmother asked the father for permission to take the child to Wales to . .
CitedIn re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
See alsoKK (A Child), Re Judicial Review FDNI 10-Jun-2013
Maternal Grandparents sought a declartion requiring the return to Latvia of their grandson, who had been brought forcibly to NI by his mother, he having lived with them in Latvia for several years. . .
Appeal fromVK and AK v CC CANI 19-Feb-2014
The child had been removed to NI by his mother. She had left him as a baby with her parents in Latvia, and they had cared for him under an informal arrangement for several years. M had taken the boy from the street in Latvia. The grandparents sought . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.526194

Anson v Revenue and Customs: SC 1 Jul 2015

Interpretation of Double Taxation Agreements

This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not domiciled here. He was liable to UK income tax on his UK sourced income and on foreign income remitted to the UK. He was non-resident in the US for US tax purposes, but was liable to US federal and state taxes on his US sourced income.
Held: The appeal succeeded. If, then, Mr Anson was entitled to the share of the profits allocated to him, rather than receiving a transfer of profits previously vested (in some sense) in the LLC, it followed that his ‘income arising’ in the US was his share of the profits. That was the income liable to tax under UK law, to the extent that it is remitted to the UK. There is no dispute as to the income which was taxed in the US: that was Mr Anson’s share of the profits of the LLC. Mr Anson’s liability to UK tax was therefore to be computed by reference to the same income as was taxed in the US. He accordingly qualified for relief under article 23(2)(a).
The express treatment of underlying tax on dividends reflected the changes necessitated by the UK’s adoption of corporation tax in place of the previous imputation system. Relief for underlying tax had previously been allowed, providing similar relief in the UK to that available in the US under article 13(1). Once the imputation system was abandoned, relief for underlying tax logically went with it.
‘article 23(2) was intended to provide similar relief to that available in the US under article 23(1), as had been the case under the 1945 Convention; and it was always clear from the Biddle decision that the US did not afford relief for underlying tax unless the Convention provided otherwise (as article 13(2) of the 1945 Convention in its original form did, but the later provisions did not). The argument, and this ground of appeal, must therefore be rejected.’
Lord Reed said: ‘Article 31(1) of the Vienna Convention requires a treaty to be interpreted ‘in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’. It is accordingly the ordinary (contextual) meaning which is relevant. As Robert Walker J observed at first instance in Memec [1996] STC 1336 at 1349, 71 TC 77 at 93, a treaty should be construed in a manner which is ‘international, not exclusively English’.
That approach reflects the fact that a treaty is a text agreed upon by negotiation between the contracting governments. The terms of the 1975 Convention reflect the intentions of the US as much as those of the UK. They are intended to impose reciprocal obligations, as the background to the UK/US agreements from 1945 onwards makes clear.’

Lord Neuberger, President, Lord Clarke, Lord Sumption, Lord Reed, Lord Carnwath
[2015] UKSC 44, [2015] 4 All ER 288, [2015] STI 2019, [2015] BTC 21, 17 ITL Rep 1007, [2015] STC 1777, UKSC 2013/0068
Bailii, Bailii Summary, SC, SC Summary
UK/US Double Taxation Convention of 31 December 1975 24(4)(a)
England and Wales
Citing:
At UTTC (1)HMRC v George Anson UTTC 3-Aug-2011
UTTC Income tax – double taxation – United Kingdom and United States – whether computation by reference to the same income or profits – whether taxpayer entitled to profits as they arise . .
At UTTC (2)HMRC v Anson UTTC 16-Feb-2012
UTTC Income tax – whether taxpayer can invoke section 739 of the Income and Corporation Taxes Act 1988 as against HMRC – effect of sections 739-741 – can costs be awarded in the Upper Tribunal on an appeal from . .
Appeal fromRevenue and Customs v Anson CA 12-Feb-2013
The revenue sought to levy income tax on the taxpayers share of revenue in a Delaware Limited liability company. In the US the company would itself be liable for and pay all tax on the members’ profits. Mr Anson was resident but not domiciled in the . .
CitedIncome Tax Commissioners for City of London v Gibbs HL 1942
Lord Macmillan considered the construction of the word ‘person’ in the context of a partnership under Scots law: ‘The word ‘person’ is in the singular, but it includes the plural and also any body of persons corporate or unincorporate: . .
CitedArif v Excess Insurance Group Ltd 1987
. .
CitedMitchell v Scottish Eagle Insurance Ltd 1997
. .
CitedMemec Plc v Inland Revenue Commissioners ChD 7-Nov-1996
Double taxation relief was not available for a distribution by a German company to its UK partner.
An international treaty should be construed in a manner which is ‘international, not exclusively English’. . .
CitedPurchase (H M Inspector of Taxes) v Stainer’s Executorsz HL 29-Nov-1951
HL Income Tax, Schedule D – Film actor and producer-Remuneration including right of participation in profits of, or receipts from, particular films-Sums in respect of such participations paid to executors – . .
CitedMemec Plc v Commissioners of Inland Revenue CA 9-Jun-1998
Memec plc, was a partner in a German silent partnership (stille Gesellschaft). The partnership had no separate legal personality, but was a contractual arrangement under which Plc had the right to receive a share of the profits of the business . .
At FTTTxSwift v Revenue and Customs FTTTx 22-Feb-2010
FTTTx DOUBLE TAXATION RELIEF – individual investor in Delaware LLC – whether entitled to the profits as they arise – yes – accordingly the Appellant is entitled to credit for US tax paid by him, the LLC being . .
CitedBaker v Archer-Shee HL 26-Jul-1927
‘The ultimate question in this Appeal turns upon the description which in income tax phraseology ought properly to be applied to the moneys paid during the two years in question by the Trust Company of New York to the order of Lady Archer-Shee, the . .
CitedArcher Shee v Garland HL 15-Dec-1930
The parties disputed the taxpayer’s liability to income tax on income coming due to her on an American based family trust.
Held: A beneficiary in a fully administered deceased estate has an equitable interest in property which is the subject . .
CitedGilbertson v Fergusson CA 1881
. .
CitedColquhoun v Brooks 1889
A partner’s share of the profits of a foreign partnership, are to be treated as income from a foreign possession . .
CitedBarnes v Hely Hutchinson HL 1940
UK taxes had not been paid by the overseas company paying a dividend, but had been by the UK companies in which it held shares. The dividends received by the taxpayer were preference dividends rather than ordinary dividends, and were therefore paid . .
CitedIncome Tax Commissioners for City of London v Gibbs HL 1942
Lord Macmillan considered the construction of the word ‘person’ in the context of a partnership under Scots law: ‘The word ‘person’ is in the singular, but it includes the plural and also any body of persons corporate or unincorporate: . .
CitedRiverstone Meat Co Pty Ltd v Lancashire Shipping Co (‘The Muncaster Castle’) HL 1961
Persons employed by a carrier in the work of keeping or making a vessel seaworthy are the carrier’s agents whose diligence or lack of it is attributable to the carrier. A shipowner’s or carrier’s duty under Article III, Rule 1 would not start and he . .
CitedMacKinlay (Inspector of Taxes) v Arthur Young McClelland Moores and Co HL 23-Nov-1989
Expenditure does not qualify for deduction if the object of the expenditure was to serve another private purpose in addition to the business purpose for which it was purportedly incurred.
HL Income Tax – . .
CitedCanadian Eagle Oil Co Ltd v The King 1946
. .
CitedThe Corfu Channel Case ICJ 22-May-1947
Assessment of the amount of compensation due from the people’s Republic of Albania to the United Kingdom of Great Britain and Northern Ireland.
The court should be reluctant to conclude that a provision in an agreement made between two . .
CitedDuckering (Inspector of Taxes) v Gollan HL 8-Apr-1965
HL Income Tax, Schedule D – Double taxation relief – Tax credit – Whether tax paid – in respect of – income of year of assessment or basis year – Income Tax Act, 1952 (15 and 16 Geo. VI and 1 Eliz. II, c. 10), . .
CitedStrathalmond v Inland Revenue Commissioners 1972
The taxpayer’s wife was an American citizen resident for tax purposes in the United Kingdom. Because of her American citizenship, however, she was not resident in the United Kingdom for the purposes of the Double Taxation Agreement between the . .
CitedBayfine UK v HM Revenue and Customs CA 23-Mar-2011
The revenue appealed against the confirmation of the grant of double taxation relief to the taxpayer company. The Court was asked whether the UK company was entitled under article 23(2)(a) to a credit, to set against UK tax on its profits, in . .
CitedPadmore v Inland Revenue Commissioners 1987
. .

Cited by:
CitedFowler v Revenue and Customs (Income Tax/Corporation Tax : Employment Income) FTTTx 13-May-2016
FTTTx INCOME TAX – Car made available to employee – whether benefit in light of Apollo Fuels Ltd: yes – whether capital contribution made: no – whether mileage allowance at 40p per mile due: no – disposition of . .
CitedFowler v Revenue and Customs SC 20-May-2020
The taxpayer, a diver resident in South Africa had undertaken engagements within UK waters and now disputed his liability to Income Tax using a deeming provision in section 5 of the 2005 Act being self employed.
Held: HMRC’s appeal succeeded. . .

Lists of cited by and citing cases may be incomplete.

Income Tax, International

Leading Case

Updated: 01 November 2021; Ref: scu.549903

Article 218(11) TFEU – Convention On The Civil Aspects Of International Child Abduction (Opinions Of The Court): ECJ 14 Oct 2014

art218ECJ1410

ECJ Grand Chamber – Opinion – Opinion pursuant to Article 218(11) TFEU – Convention on the civil aspects of international child abduction – Accession of third States – Regulation (EC) No 2201/2003 – Exclusive external competence of the European Union – Risk of undermining the uniform and consistent application of EU rules and the proper functioning of the system which they establish

V. Skouris, P
Avis-1/13, [2014] EUECJ Avis-1/13
Bailii
TFEU 218(11), Regulation (EC) No 2201/2003, Convention On The Civil Aspects Of International Child Abduction

European, Children, International

Updated: 01 November 2021; Ref: scu.537603

Government of India v Taylor: HL 1955

The Government of India sought to prove in the voluntary liquidation of a company registered in the United Kingdom but trading in India for a sum due in respect of Indian income tax, including capital gains tax, which arose on the sale of the company’s undertaking in India.
Held: The claim was not maintainable because it was a claim by the Government of India to recover tax. English law generally does not permit either the direct or indirect enforcement of foreign revenue laws. The House considered two explanations of this rule.
Lord Keith of Avenholm said: ‘One explanation of the rule thus illustrated may be thought to be that enforcement of a claim for taxes is but an extension of the sovereign power which imposed the taxes, and that an assertion of sovereign authority by one State within the territory of another, as distinct from a patrimonial claim by a foreign sovereign, is (treaty or convention apart) contrary to all concepts of independent sovereignties. Another explanation has been given by an eminent American judge, Judge Learned Hand, in the case of Moore v Mitchell, in a passage, quoted also by Kingsmill Moore J. in the case of Peter Buchanan Ltd as follows: ‘While the origin of the exception in the case of penal liabilities does not appear in the books, a sound basis for it exists, in my judgment, which includes liabilities for taxes as well. Even in the case of ordinary municipal liabilities, a court will not recognize those arising in a foreign State, if they run counter to the ‘settled public policy’ of its own. Thus a scrutiny of the liability is necessarily always in reserve, and the possibility that it will be found not to accord with the policy of the domestic State. This is not a troublesome or delicate inquiry when the question arises between private persons, but it takes on quite another face when it concerns the relations between the foreign State and its own citizens or even those who may be temporarily within its borders. To pass upon the provisions for the public order of another State is, or at any rate should be, beyond the powers of the court; it involves the relations between the States themselves, with which courts are incompetent to deal, and which are entrusted to other authorities. It may commit the domestic State to a position which would seriously embarrass its neighbour. Revenue laws fall within the same reasoning; they affect a State in matters as vital to its existence as its criminal laws. No court ought to undertake an inquiry which it cannot prosecute without determining whether those laws are consonant with its own notions of what is proper.’
Viscount Simonds stated the duty of a liquidator in assessing a proof of debt: ‘I conceive that it is the duty of the liquidator to discharge out of the assets in his hands those claims which are legally enforceable, and to hand over any surplus to the contributories. I find no words which vest in him a discretion to meet claims which are not legally enforceable. It will be remembered that, so far as is relevant for this purpose, the law is the same whether the winding up is voluntary or by the court, whether the company is solvent or insolvent, and that an additional purpose of a winding up is to secure that creditors who have enforceable claims shall be treated equally, subject only to the priorities for which the statute provides.’ The exclusion in the United Kingdom Act recognised the common law rule.

Lord Keith of Avonholm, Viscount Simonds
[1955] AC 491, [1955] 1 All ER 292, (1955) 27 ITR 356
England and Wales
Citing:
ApprovedPeter Buchanan Limited and Macharg v McVey 1954
(Supreme Court of Ireland) The plaintiff was a company registered in Scotland put into compulsory liquidation by the revenue under a substantial claim for excess profits tax and income tax. The liquidator was really a nominee of the revenue. The . .
CitedKing of the Hellenes v Brostrom 1923
Rowlatt J said: ‘It is perfectly elementary that a foreign government cannot come here — nor will the courts of other countries allow our government to go there — and sue a person found in that jurisdiction for taxes levied and which he is . .

Cited by:
CitedQRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
ApprovedIn re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
CitedWilliams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
CitedMbasogo, 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 . .
CitedMbasogo, 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 . .
CitedIran v The Barakat Galleries Ltd QBD 29-Mar-2007
The claimant government sought the return to it of historical artefacts in the possession of the defendants. The defendant said the claimant could not establish title and that if it could the title under which the claim was made was punitive and not . .
CitedRevenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
CitedBelhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

Taxes Management, International, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.225456

Henderson v Novo Banco SA: ECJ 2 Mar 2017

Defendant to show service failure was unfair

ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil and commercial matters – Service of judicial and extrajudicial documents – Regulation No 1393/2007 – Articles 8, 14 and 19 – Postal service of a document instituting the proceedings – Failure to provide a translation of the document – Annex II – Standard form – None – Consequences – Service by registered letter with acknowledgement of receipt – Failure to return acknowledgement of receipt – Receipt of document by a third party – Conditions of validity of the proceedings

M Berger P
[2017] WLR(D) 148, [2017] EUECJ C-354/15, ECLI:EU:C:2017:157
Bailii, WLRD
Parliament and Council Regulation (EC) No 1393/2007
European

Litigation Practice, International

Updated: 01 November 2021; Ref: scu.579677

A v A and another (Children) (Children: Habitual Residence) (Reunite International Child Abduction Centre intervening): SC 9 Sep 2013

Acquisition of Habitual Residence

Habitual residence can in principle be lost and another habitual residence acquired on the same day.
Held: The provisions giving the courts of a member state jurisdiction also apply where there is an alternative jurisdiction in a non-member state such as the United States. The Regulation also deals with how child abduction cases are to be dealt with as between member states of the European Union, and the various international conventions dealing with children, including this one, formed part of the legislative history of the Regulation.
When determining the ‘habitual residence’ of a child for the purpose of the Brussels II Regulation revised and the Hague Convention, the Shah test should not be followed, the search being rather for the place which reflects ‘some degree of integration by the child into the social and family environment’, the intentions of the parents being no more than one relevant factor; in the majority’s view (Lord Hughes disagreeing on this point) physical presence was a necessary element.
The Court summarised the applicable law: ‘i) All are agreed that habitual residence is a question of fact and not a legal concept such as domicile. There is no legal rule akin to that whereby a child automatically takes the domicile of his parents.
ii) It was the purpose of the 1986 Act to adopt a concept which was the same as that adopted in the Hague and European Conventions. The Regulation must also be interpreted consistently with those Conventions.
iii) The test adopted by the European Court is ‘the place which reflects some degree of integration by the child in a social and family environment’ in the country concerned. This depends upon numerous factors, including the reasons for the family’s stay in the country in question.
iv) It is now unlikely that that test would produce any different results from that hitherto adopted in the English courts under the 1986 Act and the Hague Child Abduction Convention.
v) In my view, the test adopted by the European Court is preferable to that earlier adopted by the English courts, being focussed on the situation of the child, with the purposes and intentions of the parents being merely one of the relevant factors. The test derived from R v Barnet London Borough Council, ex p Shah should be abandoned when deciding the habitual residence of a child.
vi) The social and family environment of an infant or young child is shared with those (whether parents or others) upon whom he is dependent. Hence it is necessary to assess the integration of that person or persons in the social and family environment of the country concerned.
vii) The essentially factual and individual nature of the inquiry should not be glossed with legal concepts which would produce a different result from that which the factual inquiry would produce.
viii) As the Advocate General pointed out in para AG45 and the court confirmed in para 43 of Proceedings brought by A, it is possible that a child may have no country of habitual residence at a particular point in time.’

Lady Hale, Deputy President, Lord Wilson, Lord Reed, Lord Hughes, Lord Toulson
[2013] UKSC 60, [2014] 1 AC 1, [2013] WLR(D) 345, [2013] 3 FCR 559, [2013] 3 WLR 761, [2013] Fam Law 1528, [2014] 1 All ER 827, [2014] 1 FLR 111, UKSC 2013/0106
Bailii, WLRD, Bailii Summary, SC, SC Summary
Council Regulation (EC) No 2201/2003
England and Wales
Citing:
Appeal fromIn re A (Children) CA 31-Jan-2013
. .
CitedB v H (Habitual Residence: Wardship) FD 2002
A mother of three children, who was pregnant with her fourth child, accompanied the father on a visit to Bangladesh. After their arrival the father announced his intention to remain there and refused to hand over the passports of the mother and . .
CitedOwusu v Jackson, Mammee Bay Resorts Limited etc CA 19-Jun-2002
Defendants appealed against an order refusing an order to restrain service of the proceedings on certain defendants outwith the jurisdiction. The claimant was seriously injured holidaying at a resort managed by the several defendants in Jamaica in . .
CitedOwusu v Jackson ECJ 1-Mar-2005
ECJ Brussels Convention – Territorial scope of the Brussels Convention – Article 2 – Jurisdiction – Accident which occurred in a non – Contracting State – Personal injury – Action brought in a Contracting State . .
CitedIn Re I (A Child) SC 1-Dec-2009
The child had been born in Britain to British citizen parents from Pakistan and India. There had been care proceedings, but later and with the court’s consent the father took him to Pakistan undertaking to return him, but then failed to do so. . .
CitedJKN v JCN (Divorce: Forum) FD 19-Apr-2010
Ms Theis QC decided that proceedings were only ‘governed’ by BIIR if they fell within article 19 of BIIR . .
CitedAB v CB FD 10-Oct-2012
Whether English divorce proceedings instituted here by the wife AB should be stayed to enable Indian proceedings for divorce instituted there earlier by CB.
Held: Bodey J stayed the wife’s English petition on the ground that India was the more . .
CitedRegina v Barnet London Borough Council, Ex parte Shah HL 16-Dec-1982
The five applicants had lived in the UK for at least three years while attending school or college. All five were subject to immigration control, four had entered as students with limited leave to remain for the duration of their studies, and the . .
CitedIn re J (a Minor) (Abduction: Custody rights) HL 1-Jul-1990
On 21 March 1990 the mother removed the child, aged two, from Australia, where he had been habitually resident, to England with the intention of permanently residing here. She did so without the knowledge of the father who also resided in Australia . .
CitedIn Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
CitedAl Habtoor v Fotheringham CA 15-Feb-2001
There is no jurisdiction in wardship over a child not habitually resident in England. A child born in England of and English mother and Dubai father had gone to live with his mother in Dubai at the invitation of the father, but had there retained . .
CitedRe R (Abduction: Habitual Residence) 2004
. .
CitedIn re P-J (Children) (Abduction: Consent) FD 2009
. .
CitedA (Area of Freedom, Security and Justice) ECJ 2-Apr-2009
ECJ Judicial co-operation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility – Regulation (EC) No 2201/2003 . .
CitedIn re P-J (Children) (Abduction: Consent) CA 23-Jun-2009
An application was made under the 1985 Act. The mother answered by saying that the removal of the child had been approved by the father.
Held: The mother’s appeal failed. The father had clearly indicated that he withdrew his consent before the . .
CitedIn re H-K (Children) CA 10-Oct-2011
. .
CitedDL v EL (Hague Abduction Convention: effect of reversal of return order on appeal) FD 17-Jan-2013
F sought the return of his son K to the US. K had been brought here by M after a court order in the US,but the father subsequently appealed sucessfully, obtaining an order for K’s return. M said that the UK court had originally and correctly found K . .
CitedDL v EL CA 16-Jul-2013
M had returned to the UK with her child on the strength of a US court order. F appealed successfully and now sought an order from the UK court for the return of the child.
Held: F’s appeal against refusal of an order failed. Acting under the . .
CitedIn re S (Minors) (Child Abduction: Wrongful Retention) FD 1993
The parents of S were Israeli citizens living in Israel. They had equal parental rights and responsibilities under Israeli law. They brought their two children to England intending to reside here for one year and then return to Israel. The father . .
Citedin Re M (Abduction: Habitual Residence) CA 1996
The court accepted a proposition that one parent with parental responsibility could not achieve a change in the child’s habitual residence without the consent of the other parent with parental responsibility. . .
CitedIn re S (A Child: Abduction) CA 27-Nov-2002
M’s appeal from refusal of order for return of a child under the Hague Convention. . .
CitedIn Re T (A Child: Article 15 of B2R) ((Care Proceedings: Request to Assume Jurisdiction) FD 13-Mar-2013
A pregnant 17 year old Slovakian girl ran away from a children’s home in Slovakia and gave birth to the baby in the UK.
Held: Although the court decided to transfer the case to Slovakia under article 15, Mostyn J said: ‘It is not disputed that . .
CitedA (Area of Freedom, Security And Justice) ECJ 29-Jan-2009
ECJ Area of Freedom, Security And Justice – Opinion – Judicial cooperation in civil matters – Jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental . .
CitedMercredi v Richard Chaffe (Area of Freedom, Security And Justice) ECJ 22-Dec-2010
ECJ Judicial cooperation in civil matters – Regulation (EC) No 2201/2003 – Matrimonial matters and parental responsibility – Child whose parents are not married – Concept of ‘habitual residence’ of an infant – . .
CitedHope v Hope 5-Aug-1854
A child owed allegiance to the Crown and in return the Crown had a protective or parens patriae jurisdiction over the child wherever he was. Lord Cranworth LC explained this: ‘The jurisdiction of this Court, which is entrusted to the holder of the . .
CitedIn re P (GE) (An infant) CA 1965
A stateless child was taken by his father away from the mother in England to Israel.
Held: The wardship jurisdiction of the Court of Chancery extended to any child ‘ordinarily resident’ in this country. An infant of British nationality whether . .
Citedin Re B; RB v FB and MA (Forced Marriage: Wardship: Jurisdiction) FD 15-Apr-2008
The court exercised the wardship jurisdiction in respect of a 15 year old girl born and brought up in Pakistan, who had never been here but did have dual Pakistani and British nationality. She had gone to the High Commission in Islamabad asking to . .
CitedIn re N (A Child) (Abduction: Appeal) CA 11-Jul-2012
M appealed against refusal of an order dismissing her application for the return of her daughter. The main issue related to T’s habitual residence and a claim that the jurisdiction of the court in England and Wales could be founded upon T being . .
CitedC v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
CitedSH v HH (Jurisdiction to Grant Wardship) CA 8-Jul-2011
The British father, of Afghan origin, travelled back to Afghanistan to marry. His wife, the mother, planned to come to England but had never left Afghanistan when their first child was born. Her subsequent journey (alone) to England may have . .
CitedMozes v Mozes 9-Jan-2001
United States Court of Appeals, Ninth Circuit . .

Cited by:
CitedJO v GO and Others; re PO; Re O (Court of Protection: Jurisdiction) CoP 13-Dec-2013
Jurisdiction of the Court of Protection
PO, a lady in her late eighties lacked capacity to decide her own care. She had been habitually resident in Hertfordshire. Her daughters now challenged their brother who had moved her to a care home in Scotland when he himself moved there. An . .
CitedRe KL (A Child) SC 4-Dec-2013
How should the courts of this country react when a child is brought here pursuant to an order made abroad in proceedings under the Hague Convention on the Civil Aspects of International Child Abduction which is later over-turned on appeal? K was a . .
CitedAR v RN (Scotland) SC 22-May-2015
The court was asked whether it should order the return to France of two little girls who have been living with their mother in Scotland since July 2013. The issue arose under article 3 of the 1980 Hague Convention on the Civil Aspects of . .
CitedCornwall Council, Regina (on The Application of) v Secretary of State for Health and Somerset County Council SC 8-Jul-2015
PH had severe physical and learning disabilities and was without speech, lacking capacity to decide for himself where to live. Since the age of four he received accommodation and support at public expense. Until his majority in December 2004, he was . .
CitedM (Children : Habitual Residence : 1980 Hague Child Abduction Convention) CA 25-Aug-2020
F sought the return of his children to Germany. They had lived there, but brought to the UK by M with F’s consent. She stayed for a year, and the court now considered where was their habitual residence. The judge considered that they had not lost . .
CitedMittal v Mittal CA 18-Oct-2013
The parties were born and lived in India and were Hindu. They came to the UK but after separation, returned to India, leaving no assets here. H began divorce proceedings in India, but W then issued a petition here. She now appealed against on order . .

Lists of cited by and citing cases may be incomplete.

Children, European, International

Leading Case

Updated: 01 November 2021; Ref: scu.515109

Agbaje v Akinnoye-Agbaje: SC 10 Mar 2010

The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in poverty or to return to Nigeria against her wishes.
Held: It was not impossible or improper for two jurisdictions to take part in divorce proceedings, and nor was it necessary to apply strictly the forum non conveniens rules. The order requiring the transfer to the wife of a share in the proceeds of sale in the house in London in exchange for abandoning any interest in the property in Nigeria should stand, and it was not necessary to show any exceptional need, though a mere disparity between the orders which might be made in each jurisdiction would not be enough. The 1984 Act was passed to provide this power.

Lord Phillips, President, Lord Rodger, Lady Hale, Lord Collins, Lord Kerr
[2010] 1 AC 628, [2010] 1 FLR 1813, [2010] UKSC 13, [2010] 2 WLR 709, [2010] 2 All ER 877, [2010] Fam Law 573, [2010] 2 FCR 1, UKSC 2009/0034
Bailii, Times, SC Summary, SC
Matrimonial and Family Proceedings Act 1984
England and Wales
Citing:
See AlsoAkinnoye-Agbaje v Akinnoye-Agbaje CA 15-Jun-2007
Renewed application for leave to appeal against order made under 1984 Act. . .
CitedIndyka v Indyka HL 1969
An English court should recognise a divorce decree granted in a foreign country where there was a real and substantial connection between the petitioner for the divorce and the country exercising the jurisdiction.
Lord Wilberforce said: ‘In my . .
Appeal fromAgbaje v Agbaje CA 20-Jan-2009
The court was asked as to the operation of section 10 of the 1984 Act where the marriage had been dissolved abroad. W had obtained an order under the 1984 Act though the parties had divorced in Nigeria.
Held: Leave was granted and the . .
CitedTurczak v Turczak 1970
Following a Polish divorce, there was no power to order maintenance under the 1965 Act because the parties were no longer husband and wife. . .
CitedTorok v Torok 1973
Ormrod J agreed to an application to accelerate the decree absolute of divorce to preserve the court’s jurisdiction to hear a claim for ancillary relief. If a divorce were obtained in Hungary on the basis of the husband’s Hungarian nationality, it . .
CitedQuazi v Quazi HL 1979
The husband had pronounced a talaq in Pakistan, in accordance with the 1961 Muslim Family Ordinance. The question was whether the English court had jurisdiction on the wife’s petition to dissolve the marriage and make consequential orders relating . .
CitedA Elaine Jordan v Roy Gregory Jordan Admn 12-Jul-1999
The parties had married and divorced and made a financial settlement in the US, but the husband had returned to live in the UK. The wife now sought in effect to enforce the balance of the US order here. . .
CitedTillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union 1979
(Federal Court of Australia) Deane J interpreted a statute using the word ‘substantial’ saying that it ‘is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.’ . .
MentionedWhite v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
CitedBarings Bank Plc and Another v Coopers and Lybrand (A Firm) and others CA 18-Jul-2002
Application was made to set aside a leave to appeal in a case where the liquidators of the collapsed bank brought professional negligence claims against its auditors.
Held: The power to set aside leave is only to be exercised where some . .
CitedNathan v Smilovitch and Another CA 13-May-2002
Application to set aside leave to appeal.
Held: It is a rare case in which, once permission to appeal has been granted it is appropriate to set it aside. . .
CitedMiller v Miller; McFarlane v McFarlane HL 24-May-2006
Fairness on Division of Family Capital
The House faced the question of how to achieve fairness in the division of property following a divorce. In the one case there were substantial assets but a short marriage, and in the other a high income, but low capital.
Held: The 1973 Act . .
CitedA v S (Financial Relief after Overseas US Divorce) 2003
. .
CitedThe Abidin Daver HL 1984
The House considered the application of the doctrine of forum conveniens.
Held: A stay of an English action on the ground of forum non conveniens could be resisted on the ground that justice could not be obtained in the otherwise more . .
CitedHolmes v Holmes CA 1989
Purchas LJ said: ‘the phrase ‘substantial ground for the making of an application for such an order’ is clearly central to the issues in this application . . [i]n particular when the court comes to consider such an application, it will have to take . .
CitedSpiliada Maritime Corporation v Cansulex Ltd, The Spiliada HL 1986
Forum Non Conveniens Restated
The House reviewed the authorities on the principle of forum non conveniens and restated how to apply the principle where the defendant seeks a stay of proceedings on the ground that there is another more appropriate forum.
Held: ‘In the . .
Citedde Dampierre v de Dampierre HL 1988
The existence and state of foreign proceedings are relevant to the exercise of the court’s discretion to stay an action on the ground of forum non conveniens. The essential test on which the court might exercise its discretion to stay the petition . .

Cited by:
CitedRadmacher (Formerly Granatino) v Granatino SC 20-Oct-2010
The parties, from Germany and France married and lived at first in England. They had signed a pre-nuptial agreement in Germany which would have been valid in either country of origin. H now appealed against a judgment which bound him to it, . .
CitedTraversa v Freddi CA 14-Feb-2011
Jurisdiction in Cross border divorce
The parties had divorced in Italy. After the wife sought possession of her house in London where H lived, he appealed against refusal of leave to apply for an order under the 1984 Act, the court having found insufficient substantial grounds for . .
CitedMulcaire v News Group Newspapers Ltd ChD 21-Dec-2011
The claimant, a private investigator had contracted with the News of the World owned by the defendant but since closed. He had committed criminal offences in providing information for the paper, had been convicted and had served his sentence. He . .
CitedH v S FD 18-Nov-2011
The court was asked whether for the purposes of English divorce and connected proceedings a Talaq pronounced by the respondent husband in Saudi Arabia and placed by Deed of Confirmation before the Sharia Court is entitled to be afforded recognition . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 01 November 2021; Ref: scu.402570

Kuwait Oil Tanker Company SAK and Another v Al Bader and Others: CA 18 May 2000

The differences between tortious conspiracies where the underlying acts were either themselves unlawful or not, did not require that the conspiracy claim be merged in the underlying acts where those acts were tortious. A civil conspiracy to injure by unlawful means required proof of the nature of the agreement, the means alleged, the unlawful acts causing loss, and that each such act was part of the agreed purpose. The actual intent to cause injury need not be predominant.
The court defined two types of conspiracy to injure, namely conspiracy to injure by lawful means and conspiracy to injure by unlawful means: ‘A conspiracy to injure by lawful means is actionable where the claimant proves that he has suffered loss or damage as a result of action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him, where the predominant purpose is to injure the claimant.
A conspiracy to injure by unlawful means is actionable where the claimant proves that he has suffered loss or damage as a result of unlawful action taken pursuant to a combination or agreement between the defendant and another person or persons to injure him by unlawful means, whether or not it is the predominant purpose of the defendant to do so.’

Nourse, Potter, Clarke LJJ
Times 30-May-2000, Gazette 08-Jun-2000, [2000] 2 All ER Comm 271, [2000] EWCA Civ 160
Bailii
England and Wales
Citing:
CitedLonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
CitedLonrho plc v Fayed HL 2-Jan-1991
In a conspiracy, the intent to injure need not be the primary intent, but there must be some intent which involves the conspiring parties directing their minds towards the victim or a category of persons which would include the victim as a target to . .
CitedBourgoin 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 AlsoKuwait Oil Tanker Co SAK and Another v Al Bader and Others (No 2) ComC 19-Dec-1995
ComC Leave to serve writ outside jurisdiction under RSC Ord 11 r1(1)(c) – whether required to serve on another defendant before leave obtained – retrospective validation . .
See AlsoKuwait Oil Tanker Company S A K ; Sitka Shipping Incorporated v Al Bader; Qabazard and Stafford CA 24-Mar-1997
. .
See AlsoKuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Al Bader;Qabazard; Stafford and H Clarkson and Company Limited; Mccoy; Kuwait Petroleum Corporation and Others CA 28-May-1999
The defendants having been found to have acted dishonestly to the tune of pounds 130,000,000 sought a stay of execution pending an appeal. The judge had found that the appeal was arguable. . .

Cited by:
CitedLesotho Highlands Development Authority v Impregilo Spa and others CA 31-Jul-2003
The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest . .
CitedIS Innovative Software Ltd v Howes CA 19-Feb-2004
It was alleged that the defendant had backdated contracts of employment to a time when he had been employed by the claimant, and had induced staff to leave. The company appealed dismissal of its claim.
Held: The advantage of the court . .
CitedMahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
CitedDouglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
CitedMeretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
CitedTotal 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 . .
See AlsoKuwait Oil Tanker Company Sak and Another v Al Bader and others ComC 17-Oct-2008
The claimants had succeeded in an action based on fraud, and now sought to enforce their judgment. . .
CitedDigicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 15-Apr-2010
The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
CitedLaw Society of England and Wales v Isaac and Isaac International Holdings Ltd and Others ChD 7-Jul-2010
. .

Lists of cited by and citing cases may be incomplete.

Torts – Other, International

Leading Case

Updated: 01 November 2021; Ref: scu.147193

Perry and Others v Serious Organised Crime Agency: SC 25 Jul 2012

The first appellant had been convicted of substantial frauds in Israel. He appealed against world wide asset freezing (PFO) and disclosure (DO) orders made against him. Neither the appellant, nor his offences were connected with the UK. A bank account within the UK had been disclosed.
Held: The appeals succeeded (Judge and Clarke dissenting). The Act could not have the full extra territorial effect suggested.
Lord Phillips summarised his conclusions: ‘(i) The courts below placed undue weight on the definition of ‘property’ in POCA.
(ii) The appellants have placed undue weight on the presumption that a statute does not have extraterritorial effect.
(iii) States have, by agreement, departed from the customary principles of international law in the case of confiscating the proceeds of crime. Of particular relevance is the 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime. POCA must be read in the light of that Convention.
(iv) The Convention recognises that the courts of state A may make an order purporting to vest in the authorities of state A property that is situated in state B in circumstances where the property is the proceeds of the criminal conduct of a defendant subject to the criminal jurisdiction of state A.
(v) The Convention provides that effect should be given to such an order by confiscation proceedings in state B at the request of state A.
(vi) The answer to the issue raised by the PFO appeal depends upon an analysis of both the scheme and the language of POCA considered in the light of the Convention
(vii) Parts 2, 3 and 4 of POCA provide for (a) the imposition in personam of obligations in respect of property worldwide; (b) measures in rem to secure and realise property within the United Kingdom; and (c) requests to be made to other states to take such measures in respect of property within their territories.
(viii) Part 5 of POCA makes provision for in rem proceedings in respect of property within the United Kingdom but not outside it.
(ix) The scheme of POCA, as described above, accords with arrangements made by the Proceeds of Crime Act 2002 (External Requests and Orders) Order 2005 (SI 2005/3181) (‘the Order’) for giving effect to requests from other states in relation to the confiscation of the proceeds of crime.
(x) The scheme of POCA as described above also accords with the requirements of a coherent international scheme for confiscation of the proceeds of crime and with principles of public international law. The converse is the case if SOCA’s submissions as to the extraterritorial effect of Part 5 are correct.
(xi) Section 286 is an anomalous enigma and cannot justify giving the provisions of POCA that relate to the rest of the United Kingdom a meaning different from that which they would bear in the absence of section 286.
(xii) For all these reasons the PFO appeal should be allowed.’
Sir Anthony Hughes said: ‘What cannot, as it seems to me, be the correct construction is that, as SOCA was obliged to submit, it has jurisdiction to seek a (mandatory) civil recovery order over property in China which is the product of a crime committed in China by an offender who has never left that country.’

Lord Phillips, President, Lady Hale, Lord Brown, Lord Judge, Lord Kerr, Lord Clarke, Lord Wilson, Lord Reed, Sir Anthony Hughes
[2012] UKSC 35, UKSC 2010/0182, [2012] 5 Costs LO 668, [2012] 3 WLR 379, [2012] WLR(D) 238
Bailii, Bailii Summary, SC Summary, SC
Proceeds of Crime Act 2002, 1990 Strasbourg Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime
England and Wales
Citing:
At First instanceSerious Organised Crime Agency v Perry and Others Admn 30-Jul-2009
The respondents sought to have set aside a world wide asset freezing and associated orders obtained by SOCA against them. They said that the Court had no jurisdiction over them, and that the Agency was guilty of wilful non-disclosure. They first . .
CitedRegina v Cuthbertson HL 1981
With ‘considerable regret’, the power of forfeiture and destruction conferred on the court by section 27 of 1971 Act did not apply to offences of conspiracy, and could not be used to provide a means of stripping professional drug-traffickers of the . .
CitedGovernment of the Republic of Spain v National Bank of Scotland SCS 24-Feb-1939
Lord Justice-Clerk Aitchison considered a provision claiming extra territorial effect, and said: ‘such ‘decrees’ of a foreign country as purport to have extra-territorial effect, and to attach property in a subject situated, and at a time when it is . .
CitedSociete Eram Shipping Company Ltd v Compagnie International De Navigation and Others CA 7-Aug-2001
Judgment creditors obtained a garnishee order nisi, but the bank objected to the order being made absolute. The account was in Hong Kong, where there was a real danger, that the law would not relieve them of their obligation to the account holders . .
CitedSociete Eram Shipping Company Limited and others v Hong Kong and Shanghai Banking Corp Ltd, Compagnie Internationale de Navigation HL 12-Jun-2003
The appeal concerned a final third party debt order (formerly a garnishee order). A judgment in France was registered here for enforcement. That jurisdiction was now challenged.
Held: A third party debt order is a proprietary remedy operating . .
CitedPattni v Ali and Another PC 20-Nov-2006
(Isle of Man (Staff of Government Division)) The Board considered the possibility of extra-territorial jurisdiction over property.
Held: It should generally be expected that an order having the effect of transferring a real right of ownership . .
Appeal fromPerry and Others v Serious Organised Crime Agency CA 18-May-2011
The court was asked ‘Does a court in England and Wales have the power under Part 5 of the Proceeds of Crime Act 2002 to make a recovery order in favour of the trustee for civil recovery in respect of recoverable property outside this jurisdiction, . .
Appeal fromSerious Organised Crime Agency v Perry and Others CA 29-Jul-2010
The court heard appeals against disclosure orders made under the 2002 Act. The appellants argued that neither the offence, nor the assets nor the appellants themselves were within the jurisdiction. . .
CitedKing v Director of the Serious Fraud Office HL 18-Mar-2009
Authorities in South Africa sought assistance in recovering what they said were assets acquired in England and Scotland with the proceeds of crime in South Africa, and in particular a restraint order, an assets declaration and other investigative . .
Appeal FromSerious Organised Crime Agency v Perry Admn 28-Jun-2010
The first defendant’s bankers had heard of his conviction for fraud in Israel and had notified his and associated bank accounts to SOCA. He now appealed against ex parte world wide asset freezing (PFO) and disclosure orders (DO) made againt him. The . .

Cited by:
CitedWaya, Regina v SC 14-Nov-2012
The defendant appealed against confiscation orders made under the 2002 Act. He had bought a flat with a substantial deposit from his own resources, and the balance from a lender. That lender was repaid after he took a replacement loan. He was later . .

Lists of cited by and citing cases may be incomplete.

Criminal Practice, International, Jurisdiction

Updated: 01 November 2021; Ref: scu.463144

Shields, Regina (on the Application of) v Secretary of State for Justice: Admn 17 Dec 2008

The claimant had been convicted in Bulgaria of attempted murder. He had denied it, and somebody later confessed to the crime, but that confession had not been admitted. Having been transferred to England to complete his sentence, he now asked for a decision that the respondent had the power to issue a pardon to a repatriated prisoner under article 12.
Held: ‘The Prerogative of Mercy starts where the law finishes. When a lawful conviction and sentence have been arrived at, the convicted person can appeal to the mercy of the Crown. ‘Articles 12 and 13 of the Convention stand side by side and neither is expressed to be subject to or qualified by the other. That would enable the Secretary of State to consider granting pardon in circumstances where there would be constitutional power to do so in this jurisdiction if the sentence were a sentence passed by a court in the United Kingdom. Article 13 dealt with judicial process, and article 12 the executive process. ‘pardon remains a flexible process intended in very rare cases to secure justice which the concluded court process cannot achieve.’ The respondent did have a discretion to issue a pardon.

Maddison J
[2008] EWHC 3102 (Admin), Times 14-Jan-2009, [2009] 3 All ER 265, [2010] QB 150, [2009] 3 WLR 765, [2009] ACD 46
Bailii
Repatriation of Prisoners Act 1984, Convention on the Transfer of Sentenced Persons 1983 12
England and Wales
Citing:
CitedRegina v Foster CA 29-Mar-1984
The effect of a free pardon was to remove from the subject of the pardon ‘all pains, penalties and punishments whatsoever that from the said conviction may ensue’, but not to eliminate the conviction itself.
Watkins LJ said: ‘constitutionally . .
CitedCarmona v Regina CACD 14-Mar-2006
The defendant appealed against a recommendation for deportation made on his being sentenced. He complained that the order breached his right to family life.
Held: It was not for a sentencing judge to take such matters into account. The judge . .
CitedRegina v Secretary of State for the Home Department Ex Parte Bentley QBD 8-Jul-1993
Bentley had been convicted of the murder of a policeman. He was of low intelligence and he was captured. His co-accused still held a gun. He shouted out ‘Let him have it’ He was convicted, but had said that he had only intended for the gun to be . .

Lists of cited by and citing cases may be incomplete.

Prisons, International, Human Rights

Updated: 01 November 2021; Ref: scu.278831