Category: International

Pemberton v Hughes: CA 1899

Lindley MR said: ‘There is no doubt that the courts of this country will not enforce the decisions of foreign courts which have no jurisdiction in the sense explained above – i.e., over the subject matter or over the persons brought before them . . But the jurisdiction which alone is important in these matters is the competence of the court in an international sense – i.e., its territorial competence over the subject matter and over the defendant. Its competence or jurisdiction in any other sense is not regarded as material by the courts of this country.”
Lindley MR
[1899] 1 Ch 781
England and Wales
Cited by:
Cited – Adams 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 . .

These lists may be incomplete.
Updated: 15 July 2021; Ref: scu.468978

Olafisoye v Olafisoye: FD 28 Jul 2010

The court was asked to consider the recognition here of a foreign divorce.
Held: Holman J said: ‘I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and requires an intense focus on the steps which were taken and all the circumstances of the particular case. Second, the focus under sub-paragraph (i) is not upon whether or not, or when, the respondent party actually had notice, but upon the steps which were or were not taken by or on behalf of the applicant party to give notice. In this regard, I agree with, and adopt, propositions (1) to (6) in paragraph 44 of the judgment of Mr Jeremy Richardson QC sitting as a Deputy High Court Judge in Duhur-Johnson v Duhur-Johnson (Attorney General Intervening) [2005] 2 FLR 1042 at pages 1052 to 1053, noting as I do that he had been assisted by the ‘helpful, erudite and succinct’ submissions of counsel on behalf of the Attorney General (see paragraph [4]).
Third, it is very important to keep in mind that under the sub-paragraph there are two stages in the approach of the court. First, it must make an assessment or judgment whether such steps were not taken as ‘should reasonably have been taken’; but even if the court adjudges that they were not, that merely opens the door or gateway to the second stage and an overall exercise of discretion whether or not to recognise the overseas divorce . . In exercising the second stage of discretion, if the gateway is open and it arises, the court should, in my view, still be very slow to refuse recognition of the decision and order of the foreign court, at any rate when, as here, it is clearly that of an independent, properly constituted court operating a procedure and applying substantive law (as is clear from the documents in this case) which substantially accords with our own. It is not simply a matter of ‘comity’ or respect for the foreign court. Orderly legal relationships in the international world require that, so far as possible, judicial outcomes in one country can be relied upon in all others provided there was (as here) a proper connection with the first country.
The effect of non-recognition here of a divorce which is valid or effective in the country where it was made is to create a so called ‘limping marriage’ i.e. that the parties are treated as still being married here, when they are not so treated elsewhere. That is so obviously undesirable that the court leans, so far as possible and consistent with the legislation and justice, against exercising a discretion so as to produce a limping marriage.’
Holman J
[2010] EWHC 3540 (Fam)
Bailii
Family Law Act 1986
England and Wales
Citing:
See Also – Olafisoye v Olafisoye FD 19-Feb-2010
. .

Cited by:
Cited – Liaw 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 . .

These lists may be incomplete.
Updated: 12 July 2021; Ref: scu.430383

Western Sahara Campaign UK v Secretary of State for International Trade and Another: Admn 28 Jun 2021

The Claimant campaigning group, contended that, under international law, Morocco had no right to exercise sovereignty over Western Sahara or to exploit its resources unless acting with the consent of the people of that territory and for their exclusive benefit; and that it owed duties as an occupying power, which have not been fulfilled.
Mr Justice Chamberlain:
[2021] EWHC 1756 (Admin)
Bailii
England and Wales

Updated: 30 June 2021; Ref: scu.663458

Re ITUA BBA International Ltd: ChD 28 Jun 2012

The court was asked as to the interpretation of the 2007 Regulations where the intended eventual company had been formed only for this purpose.
Held: The phrase existing transferee company’ in the regulation attempted no more than to exclude from the regulations a a transferee company which had been solely incorporaded to stand as a transeferee company,
Henderson J
[2012] EWHC 1783 (Ch), [2013] Bus LR 490, [2012] WLR(D) 187
Bailii, WLRD, WLRD
Companies (Cross-Border Mergers) Regulations 2007 3(1)
England and Wales

Updated: 24 June 2021; Ref: scu.461758

Iran Continental Shelf Oil Co 7 Others v IRI International Corp: CA 28 Jun 2002

Appeal by the claimants from a decision that a contract between the second claimant and the respondent is governed by the law of Texas. The claimants appeal by permission of the judge and invite this court to hold that the contract was governed by English law.
Ward, Clarke, Carnwath LJJ
[2002] EWCA Civ 1024, [2004] 2 CLC 696
Bailii
England and Wales

Updated: 21 June 2021; Ref: scu.416515

Duke of Brunswick v The King of Hanover: HL 31 Jul 1948

The Duke claimed that the King of Hanover had been involved in the removal of the Duke from his position as reigning Duke and in the maladministration of his estates.
Held: ‘A foreign Sovereign, coming into this country cannot be made responsible here for an act done in his Sovereign character in his own country; whether it be an act right or wrong, whether according to the constitution of that country or not, the Courts of this country cannot sit in judgment upon an act of a Sovereign, effected by virtue of his Sovereign authority abroad, an act not done as a British subject, but supposed to be done in the exercise of his authority vested in him as Sovereign.’ and ‘If it be a matter of sovereign authority, we cannot try that fact, whether it be right or wrong. The allegation that it is contrary to the laws of Hanover, taken in conjunction with the allegation of the authority under which the defendant had acted, must be conceded to be an allegation, not that it was contrary to the existing laws as regulating the right of individuals, but that it was contrary to the laws and duties and rights and powers of a Sovereign exercising Sovereign authority. If that be so, it does not require another observation to shew, because it has not been doubted, that no Court in this country can entertain questions to bring Sovereigns to account for their acts done in their sovereign capacities abroad.’
Lord Chancellor
(1848) 2 HL Cas 1, (1844) 6 Beav 1, [1848] EngR 794, (1848) 2 HLC 1, (1848) 9 ER 993
Commonlii
England and Wales
Citing:
Appeal from – Charles Duke of Brunswick v The King of Hanover 13-Jan-1844
Discussion of the question whether a sovereign prince was liable to the jurisdiction of the Courts of a foreign country, in which he happens to be resident, and as to the liability to suit of one who unites in himself the characters both of an . .

Cited by:
Approved – 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 . .
Cited – Regina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
Cited – Regina 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. . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
Cited – Regina v 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 . .
Applied – Underhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .
Cited – Lucasfilm Ltd and Others v Ainsworth and Another SC 27-Jul-2011
The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .

These lists may be incomplete.
Updated: 17 June 2021; Ref: scu.220683

Lenkor Energy Trading DMCC v Puri: CA 21 May 2021

Application to enforce Dubai finding of personal liability for dishonoured company cheques – basic rule that a final and conclusive foreign judgment for a debt or definite sum of money given by a court of competent jurisdiction may be enforced by a claim in England, unless it is impeachable on grounds set out in later Rules. Rule 51 is: ‘A foreign judgment is impeachable on the ground that the enforcement or, as the case may be, recognition, would be contrary to public policy.’
Lord Justice Lewison
[2021] EWCA Civ 770
Bailii
England and Wales

Updated: 15 June 2021; Ref: scu.662662

The London Steam-Ship Owners’ Mutual Insurance Association Ltd v Spain (M/T ‘Prestige’): ComC 18 Jun 2020

Application by the Kingdom of Spain under CPR Part 11 to set aside an order granting the Claimant/Respondent permission to serve an arbitration claim form out of the jurisdiction. The arbitration claim form seeks the appointment of an arbitrator.
Mr Justice Henshaw
[2020] EWHC 1582 (Comm)
Bailii
England and Wales

Updated: 14 June 2021; Ref: scu.652430

Martin v Secretary of State for Work and Pensions: CA 27 Nov 2009

The claimant appealed against refusal of his claim for income support. He owned property in France which had been counted to disallow his entitlement for the capital resources. Under French law the property would have been counted as subject to a trust depriving him of any beneficial interest.
Held: The appeal failed. The house had been placed in his name in order to avoid French inheritance taxes. That could not be left out of the putative implied trust. The 1987 Act produced a similar consequence.
Lord Justice Mummery, Lady Justice Arden and Lord Justice Elias
[2009] EWCA Civ 1289, Times 17-Feb-2010, [2010] AACR 9, [2010] WTLR 671
Bailii
Recognition of Trusts Act 1987
England and Wales
Cited by:
Judgment – Martin v Secretary of State for Work and Pensions (Permission to Appeal) CA 27-Nov-2009
Whether French law should be treated as the applicable law for a putative trust arising between parties domiciled in England, but relating to immovable property in France, because, in making the arrangements which give rise to the putative trust, . .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.381580

Syska v Vivendi Universal Sa and others: ComC 2 Oct 2008

In the course of an international arbitration under which a claim for Euros 1.9 billion, one party declared itself bankrupt in the court in Warsaw. The court was asked as to the effect of this on the arbitration.
Christopher Clarke J
[2008] EWHC 2155 (Comm), [2008] 2 CLC 459, [2009] BPIR 163, [2009] 1 All ER (Comm) 244, [2009] ILPr 35, [2008] 2 Lloyd’s Rep 636, [2009] Bus LR 367
Bailii
England and Wales
Cited by:
Appeal From – Syska (Elektrim Sa) v Vivendi Universal Sa and Others CA 9-Jul-2009
. .

These lists may be incomplete.
Updated: 09 June 2021; Ref: scu.276538

The Case of the SS Lotus”: PCIJ 1927″

References: (1927) PCIJ Series A – No 10
Ratio: Jurisdiction is primarily territorial in both international and domestic law: ‘the first and foremost restriction imposed by international law upon a state is that – failing the existence of a permissive rule to the contrary – it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts ‘outside their territory’, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable.’
This case is cited by:

  • Cited – The United States of America v Nolan SC (Bailii, [2015] UKSC 63, [2016] IRLR 34, [2015] 3 WLR 1105, [2016] 1 CMLR 42, [2015] ICR 1347, [2016] 1 All ER 857, [2015] WLR(D) 441, [2016] AC 463, WLRD, Bailii Summary, UKSC 2014/0073, SC, SC Summary)
    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.

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 11-Aug-17
Ref: 591914

Bridge Oil Ltd v The Owners and/or demise charters of the Ship Guiseppe Di Vittorio” (No. 1): AdCt 15 Jul 1997″

References: Unreported, 15 July 1997
Coram: Clarke J
Ratio: Admiralty practice – arrest of vessel – State immunity
This case cites:

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

(This list may be incomplete)
Jurisdiction: England and Wales

Last Update: 10-Jan-17
Ref: 220785

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

References: [2003] HKCFA 52, [2004] 1 HKLRD 77, (2003) 6 HKCFAR 517, ACV 4/2003
Links: Hklii
Coram: Ribeiro PJ, Lord Millett NPJ
Ratio: (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: 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’.
This case cites:

  • Restated – W T Ramsay Ltd v Inland Revenue Commissioners HL ([1981] 1 All ER 865, [1982] AC 300, Bailii, [1981] UKHL 1, [1981] STC 174)
    The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
    Held: If the true nature . .
  • Cited – MacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL (Gazette 15-Feb-01, Times 14-Feb-01, House of Lords, Bailii, [2001] UKHL 6, [2001] 1 All ER 865, (2001) 73 TC 1, [2001] 2 WLR 377, [2003] 1 AC 311)
    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 . .

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

  • Cited – Barclays Mercantile Business Finance Ltd v Mawson (HM Inspector of Taxes) HL (Bailii, House of Lords, [2004] UKHL 51, [2004] 76 TC 446, [2005] 1 All ER 97, [2005] 1 AC 684, [2005] STC 1, [2004] 3 WLR 1383, [2004] BTC 414, 76 TC 446, [2004] STI 2435, 7 ITL Rep 383, Bailii, [2004] UKHL TC_76_446)
    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 . .
  • Cited – Campbell v Inland Revenue Commissioners SCIT (Bailii, [2004] UK SPC00421, [2004] STC (SCD) 396)
    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 . .

(This list may be incomplete)

Last Update: 03-Aug-16
Ref: 220504

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

References: 470 US 564 (1985), 53 USLW 4314, [1985] USSC 57, 105 SCt 1504, 84 L Ed 2d 518
Links: USSC
Ratio: 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.’
This case is cited by:

  • Cited – McGraddie v McGraddie and Another (Scotland) SC (Bailii, [2013] UKSC 58, [2013] 1 WLR 2477, [2013] WLR(D) 323, 2013 GWD 25-471, 2013 SLT 1212, WLRD, Bailii Summary, UKSC 2012/0112, SC Summary, SC)
    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 . .

(This list may be incomplete)

Last Update: 03-Aug-16
Ref: 540458

Hutchinson v Proxmire; 26 Jun 1979

References: [1979] USSC 139, [1979] 443 US 111
Links: Worldlii
Ratio: (United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful
Held: Efforts to influence executive agencies are not privileged acts. Not every public employee is a public official.
This case is cited by:

  • Cited – Chaytor and Others, Regina v SC (Bailii, [2010] UKSC 52, Bailli Summary, [2010] WLR (D) 311, WLRD, UKSC 2010/0195, SC Summary, SC, [2011] 1 Cr App R 22, [2010] 3 WLR 1707, [2011] 1 All ER 805)
    The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
  • Cited – Makudi v Baron Triesman of Tottenham CA (Bailii, [2014] EWCA Civ 179, [2014] EMLR 17, [2014] 3 All ER 36, [2014] 1 QB 839, [2014] WLR(D) 98, [2014] QB 839, [2014] 2 WLR 1228, WLRD)
    Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .

(This list may be incomplete)

Last Update: 31-Jul-16
Ref: 427748

In re Ping An Securities Ltd; 12 May 2009

References: [2009] HKCFA 48, (2009) 12 HKCFAR 808, [2009] 4 HKC 332, FACV 26/2008
Links: Hklii
Coram: Mr Justice Bokhary PJ, Mr Justice Chan PJ, Mr Justice Ribeiro PJ, Mr Justice Litton NPJ and Mr Justice Gault NPJ
Ratio:(Hong Kong – Court of Final Appeal) The court approved a proposition that a plaintiff ‘must establish a goodwill (in the country or region) in a business in the supply of goods or services’ under the relevant get-up in order to maintain a claim in passing off.
This case is cited by:

(This list may be incomplete)

Last Update: 28-Jun-16
Ref: 566016

HKSAR v Li Kwok Cheung George; 5 Jun 2014

References: [2014] HKCFA 48, [2014] 4 HKC 101
Links: HKLII, Hklii, Hklii Summary
Coram: Mr Justice Ribeiro PJ, Mr Justice Tang PJ,, Mr Justice Fok PJ, Mr Justice Bokhary NPJ,, Lord Collins of Mapesbury NPJ
Ratio:Hong Kong Court of Final Appeal The court considered the wording of a Hong Kong money laundering ordinance.
Held: Ribeiro and Fok PJJ said in their joint judgment with which the other members of the Court of Final Appeal agreed, at para 84: ‘It is one thing to criminalise dealing with funds where the dealer knows or has reasonable grounds to believe that they are the proceeds of crime, it is quite a different matter to stigmatise as a money launderer, a lender dealing with its own ‘clean’ funds because of what the borrower does or intends to do with them.’
This case is cited by:

  • Cited – GH, Regina -v- SC (Bailii, [2015] UKSC 24, [2015] 1 WLR 2126, [2015] WLR(D) 178, Bailii Summary, WLRD, UKSC 2014/0035, SC, SC Summary)
    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 . .

(This list may be incomplete)

Last Update: 15-Jun-16
Ref: 565398

Libertarian Investments Ltd v Hall; 6 Nov 2013

References: [2014] 1 HKC 368, [2013] HKCFA 93
Links: Hklii
Coram: Millett NPJ, Ribeiro PJ
(Hong Kong) A trustee owes a duty to hold trust funds and apply them for the purposes of the trust (a stewardship or custodial duty). He is bound to answer for his stewardship when called on by the beneficiary to do so. If for any reason he misapplies the trust fund, or part of it, he must immediately reconstitute the trust fund in full. If he fails to do so, the court will order him to reconstitute the fund in specie, if that is possible, or pay the equivalent sum in money so as to produce the same result in financial terms.
Millett NPJ said that the relevant principle, in a case of unauthorised dissipation of trust funds is that: ‘Where the defendant is ordered to make good the deficit by the payment of money, the award is sometimes described as the payment of equitable compensation; but it is not compensation for loss but restitutionary or restorative. The amount of the award is measured by the objective value of the property lost determined at the date when the account is taken and with the full benefit of hindsight.’
Ribeiro PJ carried out a valuable review of the authorities concerned with equitable compensation in the context of a commercial relationship. He noted that where a relationship was fiduciary, there might be obligations which were not fiduciary in nature; and, equally, even in a commercial relationship, there might be aspects which engaged fiduciary obligations.
This case is cited by:

  • Cited – AIB Group (UK) Plc -v- Mark Redler & Co Solicitors SC (Bailii, [2014] UKSC 58, [2014] 3 WLR 1367, [2014] WLR(D) 466, WLRD, Bailii Summary, UKSC 2013/0052, SC, SC Summary)
    The court was asked as to the remedy available to the appellant bank against the respondent, a firm of solicitors, for breach of the solicitors’ custodial duties in respect of money entrusted to them for the purpose of completing a loan which was to . .

(This list may be incomplete)
Last Update: 09-Nov-15 Ref: 553779

AMCHEM Products Incorporated v British Columbia (Workers’ Compensation Board); 24 Mar 1993

References: [1993] 1 SCR 897, (1993) 102 DLR (4th) 96, [1993] 3 WWR 441, 77 BCLR (2d) 62, 150 NR 321, 23 BCAC 1, [1993] CarswellBC 47, JE 93-674
Links: Canlii
Coram: La Forest, Sopinka, Gonthier, Cory and McLachlin JJ
Supreme Court of Canada – Courts – Appropriate forum – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Prerogative writs – Injunctions – Appropriate forum for bringing action – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Whether or not an injunction appropriate.
Conflict of laws – Courts – Action commenced in U.S. courts – Plaintiffs largely resident in Canada – Most of corporate defendants with some connection with state where action brought – Anti-suit injunction sought in Canadian courts to prevent action in U.S. courts – Principles governing the determination of appropriate forum and governing comity between courts – Whether or not an injunction appropriate.
Sopinka J discussed the importance of comity considerations in anti-suit injunction applications and held: ‘the domestic court as a matter of comity must take cognisance of the fact that the foreign court has assumed jurisdiction. If, applying the principles relating to forum non conveniens . . the foreign court could reasonably have concluded that there was no alternative forum that was clearly More appropriate, the domestic court should respect that decision and the application [for an anti-suit injunction] should be dismissed.’
This case is cited by:

  • Approved – Airbus Industrie G I E -v- Patel and Others HL (Times 06-Apr-98, House of Lords, Gazette 07-May-98, Bailii, [1998] UKHL 12, [1999] 1 AC 119, [1998] 2 All ER 257, [1998] 2 WLR 686)
    An Indian Airlines Airbus A-320 crashed at Bangalore airport after an internal Indian flight. The plaintiff passengers lived in England. Proceedings began in Bangalore against the airline and the airport authority. The natural forum was the . .
  • Cited – OT Africa Line Ltd -v- Magic Sportswear Corporation and others CA (Bailii, [2005] EWCA Civ 710, Times 21-Jun-05)
    The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .

(This list may be incomplete)
Last Update: 10-Nov-15 Ref: 228197

Addington v Texas; 30 Apr 1979

References: 60 L Ed 2d 323, 60 L Ed 323, 99 SCt 1804, 441 US 418
Links: Worldlii
Coram: Burger CJ
(US Supreme Court) To commit an individual to a mental institution in civil proceedings, the state was required by the ‘due process’ clause of the US Constitution to prove by clear and convincing evidence the statutory preconditions to commitment. That was an intermediate standard, between proof beyond reasonable doubt and proof on the preponderance of the evidence, which was held to strike a fair balance between the rights of the individual and the legitimate concerns of the state.
This case is cited by:

FG Hemisphere Associates LLC v Democratic Republic of Congo; 10 Feb 2010

References: [2010] HKCA 19, [2010] 2 HKLRD 66, [2010] 2 HKC 487
Links: HKLii
Hong Kong Court of Appeal
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    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, . .

Connecticut Bank of Commerce v Republic of Congo; 29 Aug 2002

References: [2002] 309 F3d 240
Links: Worldlii
Coram: Emilio M Garza
(United States Court of Appeals, Fifth Circuit) Connecticut Bank had acquired the rights to a valid London judgment against the Congo for defaulting on a loan agreement. It obtained a default judgment in New York in relation to the London judgment debt. The Bank then sought to attach various debts owed by a group of Texas oil companies to the Congo. The debts constituted various royalty obligations by the oil companies for activities connected with the exploration for and the sale of the Congo’s oil.
Held: The debts due from the oil companies were not ‘property . . used for a commercial activity’ within the meaning of section 1610(a). Judge Garza, for the majority said: ‘The phrase ‘used for’ on its face denotes something different and more specific than the phrases ‘integral to’ or ‘necessary to’. It also denotes something distinct (and narrower) than the other phrases the Bank uses in its petition, such as ‘related to’ or ‘contemplated by.”
Judge Garza said: ‘What matters under the statute is what the property is ‘used for’, not how it was generated or produced. If property in the United States is used for a commercial purpose here, that property is subject to attachment and execution even if it was purchased with tax revenues or some other noncommercial source of government income. Conversely, even if a foreign state’s property has been generated by commercial activity in the United States, that property is not thereby subject to execution or attachment if it is not ‘used for’ a commercial activity within our borders. The district court (and the litigants) have focused on the question of whether the Congo’s joint venture with the garnishees, which gave rise to the royalty and tax obligations that the Bank want to garnish, was a ‘commercial activity in the United States’. This was the wrong question to consider. What matters under the statute is not how the Congo made its money, but how it spends it. The amenability of these royalties and taxes to garnishment depends on what they are ‘used for’, not on how they were raised.’
He added: ‘The phrase ‘used for’ in section 1610(a) is not a mere syntactical infelicity that permits courts to look beyond the ‘use’ of property, and instead try to find any kind of nexus or connection to a commercial activity in the United States. The statute means what it says: property of a foreign sovereign . . may be executed against only if it is ‘used for’ a commercial activity. That the property is revenue from or otherwise generated by commercial activity in the United States does not thereby render the property amenable to execution.
. . To use property for a commercial activity, within the ordinary meaning of ‘use’, would be to put the property in the service of the commercial activity, to carry out the activity by means of the property. Here, the royalty obligations in question represent the revenue, the income, from an allegedly commercial activity. In ordinary usage, we would not say that the revenue from a transaction is ‘used for’ that transaction.’
He referred to the Act, noting the distinction in the Act between the jurisdictional immunity in section 3(1), which provides that a state is not immune as respects proceedings ‘relating to’ a commercial transaction and section 13(4), which, as he put it, makes explicit that the mere relationship to a commercial activity does not suffice to permit execution, the property must ‘for the time being’ be ‘in use or intended for use for a commercial purpose’. He concluded that the Act parallels the FSIA on the footing that: ‘it allows jurisdiction based on mere relationship to a commercial activity, but very clearly permits execution only depending on the ‘use’ of the property.’
This case is cited by:

  • Cited – SerVaas Incorporated -v- Rafidian Bank and Others SC (Bailii, [2012] UKSC 40, [2012] 3 WLR 545, [2012] WLR(D) 257, Bailii SC, UKSC 2011/0247, SC Summary, SC)
    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, . .

Charles Jefferys v Thomas Boosey; 1 Aug 1854

References: [1854] EngR 816, (1854) 4 HLC 815, (1854) 10 ER 681, [1854] UKPC 28
Links: Commonlii, Bailii
Coram: Brougham, St Leonard LL
The object of 8 Anne, c. 19, was to encourage literature among British subjects, which description includes such foreigners as, by residence here, owe the Crown a temporary allegiance; and any such foreigner, first publishing his work here, is an ‘author’ within the meaning of the statute, no matter where his work was composed, or whether he came here solely with a view to its publication.
Copyright commences by publication; if at that time the foreign author is not in this country, he is not a person whom the statute meant to protect.
An Englishman, though resident abroad, will have copyright in a work of his own first published in this country.
B, a foreign musical composer, resident at that time in his own country, assigned to R, another foreigner, also resident there, according to the law of their country, his right in a musical composition of which he was the author, and which was then unpublished. The assignee brought the composition to this country, and, before publication, assigned it, according to the form required by the law of this country, to an Englishman. The first publication, took place in this country :
Held, reversing the judgment of the Court of Exchequer Chamber, that the foreign assignee had not, by the law of this country, any assignable copyright here in this musical composition.
Per Lords Brougham and St. Leonards.-Copyright did not exist at common law; it is the creature of statute.
This case cites:

Arab Monetary Fund v Hashim; 11 Oct 1994

References: Times 11-Oct-1994
Coram: Chadwick J
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 whether, under the provisions of the 1978 Act itself, the contribution claim ought to succeed. Chadwick J said: ‘If B and C were each persons against whom liability had been or could be established in an action brought against them by A in an English court, applying the appropriate law in accordance with English private international law rules, then the Act conferred on B a right of contribution against C to which the court had to give effect. There was no preliminary question as to proper law the answer to which determined, independently of the Act, whether the Act applied.’
Statutes: Civil Liability Contribution Act 1978
This case is cited by:

  • Cited – Cox -v- Ergo Versicherung Ag CA (Bailii, [2012] EWCA Civ 854)
    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 . .

Upjohn Company v United States; 13 Jan 1981

References: [1981] USSC 7, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584
Links: Worldlii
Coram: Justice Rehnqist
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. – 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.
This case is cited by:

West Virginia State Board of Education v Barnette; 14 Jun 1943

References: (1943) 319 US 624, [1943] USSC 130, 63 SCt 1178, 87 LEd 1628
Links: Worldlii
Coram: Jackson J
(United States Supreme Court) Jackson J said: ‘If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion to force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.’
This case is cited by:

Miranda v Arizona; 10 Oct 1966

References: (1966) 384 US 436, [1966] USSC 143, (1966) 86 SCt 1602, (1966) 16 LEd2d 694
Links: Worldlii
Coram: Warren CJ
(United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure the privilege against self-incrimination. These safeguards require that, unless other fully effective means are devised to inform the accused person of the right to silence and to assure continuous opportunity to exercise it, he must be warned that he has a right to remain silent, that any statement that he does make may be used as evidence against him, that he has the right to consult with an attorney and that, if he cannot afford one, a lawyer will be appointed to represent him. ‘Custodial interrogation’ for the purposes of this rule means questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.
This case is cited by:

  • Cited – Imbrioscia -v- Switzerland ECHR (Bailii, [1993] ECHR 56, 13972/88, ECHR, (1994) 17 EHRR 441, Bailii)
    The applicant had been questioned several times without access to a lawyer while he was in police custody.
    Held: Overall there had been no breach of article 6(1). The right set out in article 6(3)(c) is one element, among others, of the . .
  • Cited – Galstyan -v- Armenia ECHR (26986/03, Bailii, [2007] ECHR 936, (2007) 50 EHRR 618)
    The claimant had been was arrested on his way home from a protest rally. He was made aware of his rights and expressly declined a lawyer.
    Held: As it was his own choice not to have a lawyer, the authorities could not be held responsible for . .
  • Cited – Ambrose -v- Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
    (Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .
  • Cited – Murray -v- The United Kingdom ECHR (Times 09-Feb-96, 18731/91, [1996] ECHR 3, (1996) 23 EHRR 313, [1996] 22 EHRR 29, Bailii)
    The applicant had been denied legal advice for 48 hours after he had been taken into custody.
    Held: There had been a violation of article 6(1) read with article 6(3)(c). However, it was not a breach of human rights to draw inferences from the . .
  • Considered – JDB -v- North Carolina (USSC, LII, 09-11121)
    (United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor. . .
  • Cited – McGowan (Procurator Fiscal) -v- B SC (Bailii Summary, Bailii, [2011] UKSC 54, SC, SC Summary, UKSC 2011/0201, [2011] 1 WLR 3121, 2012 SLT 37, 2012 SCCR 109, 2012 SCL 85)
    The appellant complained that after arrest, though he had been advised of his right to legal advice, and had declined the offer, it was still wrong to have his subsequent interview relied upon at his trial.
    Held: It was not incompatible with . .

S v Mthembu; 10 Apr 2008

References: 379/07, [2008] ZASCA 51, [2008] 3 All SA 159 (SCA), [2008] 4 All SA 517 (SCA), 2008 (2) SACR 407 (SCA)
Links: Saflii
Coram: Cameron, Maya et Cachalia JJA
Saflii (South Africa: Supreme Court of Appeal) The evidence of an accomplice extracted through torture, (including real evidence derived from it), is inadmissible, even where the accomplice testifies years after the torture. The link was inextricable.
This case is cited by:

  • Cited – Her Majesty’s Advocate -v- P SC (Bailii, [2011] UKSC 44, Bailii Summary, 2012 SC (UKSC) 108)
    (Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
    Held: The admission of the . .

Murray v United States; 27 Jun 1988

References: [1988] USSC 147, 487 US 533, 108 SCt 2529
Links: USSC
Coram: Justice Scalia
USSC While surveilling petitioner Murray and others suspected of illegal drug activities, federal agents observed both petitioners driving vehicles into, and later out of, a warehouse, and, upon petitioners’ exit, saw that the warehouse contained a tractor-trailer rig bearing a long container.
Petitioners later turned over their vehicles to other drivers, who were in turn followed and ultimately arrested, and the vehicles were lawfully seized and found to contain marijuana. After receiving this information, several agents forced their way into the warehouse and observed in plain view numerous burlap-wrapped bales. The agents left without disturbing the bales and did not return until they had obtained a warrant to search the warehouse. In applying for the warrant, they did not mention the prior entry or include any recitations of their observations made during that entry. Upon issuance of the warrant, they reentered the warehouse and seized 270 bales of marijuana and other evidence of crime. The District Court denied petitioners’ pretrial motion to suppress the evidence, rejecting their arguments that the warrant was invalid because the agents did not inform the Magistrate about their prior warrantless entry, and that the warrant was tainted by that entry. Petitioners were subsequently convicted of conspiracy to possess and distribute illegal drugs. The Court of Appeals affirmed, assuming for purposes of its decision on the suppression question that the first entry into the warehouse was unlawful.
Held: The Fourth Amendment does not require the suppression of evidence initially discovered during police officers’ illegal entry of private premises, if that evidence is also discovered during a later search pursuant to a valid warrant that is wholly independent of the initial illegal entry.
(a) The ‘independent source’ doctrine permits the introduction of evidence initially discovered during, or as a consequence of, an unlawful search, but later obtained independently from lawful activities untainted by the initial illegality. Silverthorne Lumber Co. v. United States, [1920] USSC 22; 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319. There is no merit to petitioners’ contention that allowing the doctrine to apply to evidence initially discovered during an illegal search, rather than limiting it to evidence first obtained during a later lawful search, will encourage police routinely to enter premises without a warrant.
(b) Although the federal agents’ knowledge that marijuana was in the warehouse was assuredly acquired at the time of the unlawful entry, it was also acquired at the time of entry pursuant to the warrant, and if that later acquisition was not the result of the earlier entry, the independent source doctrine allows the admission of testimony as to that knowledge. This same analysis applies to the tangible evidence, the bales of marijuana. United States v. Silvestri, 787 F.2d 736 (CA1, 1986), is unpersuasive insofar as it distinguishes between tainted intangible and tangible evidence. The ultimate question is whether the search pursuant to warrant was in fact a genuinely independent source of the information and tangible evidence at issue. This would not have been the case if the agents’ decision to seek the warrant was prompted by what they had seen during the initial entry or if information obtained during that entry was presented to the Magistrate and affected his decision to issue the warrant. Because the District Court did not explicitly find that the agents would have sought a warrant if they had not earlier entered the warehouse, the cases are remanded for a determination whether the warrant-authorized search of the warehouse was an independent source in the sense herein described.
This case is cited by:

  • Cited – Her Majesty’s Advocate -v- P SC (Bailii, [2011] UKSC 44, Bailii Summary, 2012 SC (UKSC) 108)
    (Scotland) The appellant had been interviewed by police without being offered access to a solicitor. He complained that the interview and information obtained only through it had been used to found the prosecution.
    Held: The admission of the . .

First National City Bank v Banco Nacional de Cuba; 7 Jun 1972

References: (1972) 406 US 759, [1972] USSC 189, [1972] 92 SCt 1808
Links: Worldlii
(United States Supreme Court) The court worried about just how much confusion can result from executive encroachment on issues of justiciability and that executive interference would lead to arbitrary results as ‘the Court becomes a mere errand boy for the Executive Branch which may choose to pick some people’s chestnuts from the fire, but not others” (Douglas J). ‘I would be uncomfortable with a doctrine which would require the judiciary to receive the Executive’s permission before invoking its jurisdiction . Such a notion, in the name of the doctrine of separation of powers, seems to me to conflict with that very doctrine.’ (Powell J)
This case is cited by:

Compania Naviera Vascongado v Steamship ‘Cristina’: HL 1938

References: [1938] AC 485
Coram: Lord Atkin
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 set aside the writ and arrest of the ship is to be found in two propositions of international law engrafted into our domestic law which seem to me to be well established and to be beyond dispute. The first is that the courts of a country will not implead a foreign sovereign, that is, they will not by their process make him against his will a party to legal proceedings whether the proceedings involve process against his person or seek to recover from him specific property or damages.
The second is that they will not by their process, whether the sovereign is a party to the proceedings or not, seize or detain property which is his or of which he is in possession or control. There has been some difference in the practice of nations as to possible limitations of this second principle as to whether it extends to property only used for the commercial purposes of the sovereign or to personal private property. In this country it is in my opinion well settled that it applies to both.’
This doctrine derives from the maxim par in parem non habet imperium, but also from ideas as comity or reciprocity, the practicability of enforcement, or the respect for the dignity of other states.
This case is cited by:

  • Cited – Jones -v- Ministry of Interior for the Kingdom of Saudi Arabia and others HL (Bailii, Bailii, [2006] UKHL 26, [2007] 1 AC 270, [2007] 1 All ER 113, [2006] 2 WLR 1424)
    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 . .
  • Cited – Holland -v- Lampen-Wolfe HL (Gazette 17-Aug-00, House of Lords, Times 27-Jul-00, Gazette 03-Aug-00, Bailii, [2000] 1 WLR 1573, [2000] UKHL 40, [2000] 3 All ER 833)
    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 . .
  • Cited – Aziz -v- Aziz and others Rev 1 CA (Bailii, [2007] EWCA Civ 712, Times 17-Jul-07)
    The claimant sought return of recordings and of money paid to the defendant through an alleged fraud or threats. She was the former wife of the Sultan of Brunei and head of state, who now sought an order requiring the court to protect his identity . .
  • Cited – NML Capital Ltd -v- Argentina SC (Bailii, [2011] UKSC 31, Bailii Summary, SC Summary, SC, UKSC 2010/0040)
    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 . .

JDB v North Carolina; 16 Jun 2011

References: 09-11121
Links: USSC, LII
Coram: Justice Sotomayor
(United States Supreme Court) The court considered the applicability of Miranda protection to a police interview of a minor.
This case cites:

  • Considered – Miranda -v- Arizona ((1966) 384 US 436, Worldlii, [1966] USSC 143, (1966) 86 SCt 1602, (1966) 16 LEd2d 694)
    (United States Supreme Court) The prosecution may not use statements, whether incriminatory or exculpatory, stemming from custodial interrogation of a defendant unless it demonstrated the use of procedural safeguards which were sufficient to secure . .

This case is cited by:

  • Cited – Ambrose -v- Harris, Procurator Fiscal, Oban, etc SC (Bailii, [2011] UKSC 43, Bailii Summary, SC Summary, SC, UKSC 2011/0101, 2011 SLT 1005, [2011] 1 WLR 2435)
    (Scotland) The appellant had variously been convicted in reliance on evidence gathered at different stages before arrest, but in each case without being informed of any right to see a solicitor. The court was asked, as a devolution issue, at what . .

Dublin Port and Docks Board v Bank of Ireland; 22 Jul 1976

References: [1976] IR 118
Links: Bailii
Coram: Griffin J
(Supreme Court of Ireland) The court discussed a bank’s obligation to process cheques issued by its customers: ‘a banker should pay his customers’ cheques in the order in which they are presented, subject to the interest of the customer being taken into account’.
This case is cited by:

  • Cited – Office of Fair Trading -v- Abbey National Plc & seven Others ComC (Bailii, [2008] EWHC 875 (Comm), Times 29-Apr-08, Gazette 08-May-05)
    The Office sought a declaration that the respondent and other banks were subject to the provisions of the Regulations in their imposition of bank charges to customer accounts, and in particular as to the imposition of penalties or charges for the . .

Neilson v Overseas Projects Corporation of Victoria Ltd; 29 Sep 2005

References: (2005) 223 CLR 331, [2005] HCA 54, (2005) 221 ALR 213, (2005) 79 ALJR 1736
Links: Austlii
Coram: Gleeson CJ, McHuh, Gummow, Kirby, Hayne, Callinan, Heydon JJ
(High Court of Australia) Private international law – Foreign tort – Choice of law – Appellant was injured in the People’s Republic of China – Scope of the lex loci delicti – Where the lex loci delicti treats another connecting factor, such as nationality or domicile, as determining the applicable law – Whether Article 146 of the General Principles of Civil Law of the People’s Republic of China was a relevant part of the lex loci delicti – Whether Article 146 of the General Principles of Civil Law of the People’s Republic of China made the law of the parties’ domicile the applicable law – Whether the doctrine of renvoi applies to international tort claims – Infinite regression of reference.
Evidence – Foreign law – Principles governing admission of evidence of foreign law – Where there is a deficiency of evidence – Whether there is a presumption that foreign law is the same as the law of the forum.
Words and phrases – ‘lex loci delicti’, ‘choice of law’, ‘renvoi’, ‘single renvoi’, ‘double renvoi’, ‘infinite regression of reference’.
This case is cited by:

  • Cited – Iran -v- Berend QBD (Bailii, [2007] EWHC 132 (QB))
    The Republic of Iran sought the return of a fragment of ancient Achaemenid relief in the possession of the defendant, saying that it was part of an ancient monument. The defendant said that she had bought it properly at an auction in Paris. The . .

El Al Israel Airlines Ltd v Tsui Yuan Tseng; 16 Sep 1997

References: (1999) 525 US 155, 919 FSupp 155, 147 ALRFed 783, 65 USLW 2817, 142 L Ed 2d 576, 119 SCt 662, 122 F3d 99
Links: USSC
(US Supreme Court) The Warsaw Convention should be applied in a consistent manner internationally, without reference to the local laws of the high contracting parties.
Statutes: Warsaw Convention 29
This case is cited by:

  • Cited – Barclay -v- British Airways Plc CA (Bailii, [2008] EWCA Civ 1419, Times)
    The claimant sought damages for personal injury. The airline said that the injury was not the result of an accident within article 17.1. She was walking down the aisle and slipped.
    Held: The appeal was dismissed. The meaning of ‘accident’ . .

Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh; 7 Apr 1995

References: (1995) 128 ALR 353, [1995] HCA 20, (1995) 69 ALJR 423, (1995) 183 CLR 273
Links: Austlii
Coram: Deane, Toohey, Gaudron, McHugh JJ
Austlii (High Court of Australia) International Law – Treaties – Convention ratified by Australia but not implemented by statute – Status in domestic law – Whether giving rise to legitimate expectations.
Immigration – Application for permanent entry – Applicant – Married man with children in Australia – Policy requirement that applicants be of good character – Applicant convicted and imprisoned before application dealt with – Application refused because of conviction – Convention requiring governmental actions concerning children to give primary consideration to best interests of child – Convention ratified by Australia but not incorporated by statute in Australian domestic law -Whether capable of giving rise to legitimate expectation that application would be dealt with in accordance with Convention – Convention on Rights of Child, Art 3 – Migration Act 1958 (Cth), ss 6(2), 6A(1), 16(1)(c).
This case is cited by:

  • Cited – ZH (Tanzania) -v- Secretary of State for The Home Department SC ([2011] 1 FCR 221, [2011] 2 WLR 148, Bailii, [2011] UKSC 4, Bailii Summ, UKSC 2010/0002, SC, SC Summary, [2011] Fam Law 468, [2011] 2 AC 166)
    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 . .

Illinois State Board Of Elections v Socialist Workers Party Et Al; 22 Feb 1979

References: [1979] USSC 27
Links: Worldlii
Coram: Marshall J
Ratio United States Supreme Court – Under the Illinois Election Code, new political parties and independent candidates must obtain the signatures of 25,000 qualified voters in order to appear on the ballot in statewide elections. However, the minimum number of signatures required in elections for offices of political subdivisions of the State is 5% of the number of persons who voted at the previous election for such offices. Application of these provisions to a special mayoral election in Chicago produced the result that a new party or independent candidate needed substantially more signatures than would be needed for ballot access in a statewide election. In actions by appellees, an independent candidate, two new political parties, and certain voters challenging this discrepancy on equal protection grounds, the District Court enjoined enforcement of the 5% provision insofar as it mandated more than 25,000 signatures, and the Court of Appeals affirmed.
Held: 1. This Court’s summary affirmance in Jackson v. Ogilvie, 403 U.S. 925, 91 S.Ct. 2247, 29 L.Ed.2d 705, of the District Court’s decision in 325 F.Supp. 864, upholding Illinois’ 5% signature requirement is not dispositive of the equal protection question presented here. The precedential effect of a summary affirmance can extend no further than ‘the precise issues presented and necessarily decided by those actions,’ Mandel v. Bradley, [1977] USSC 112; 432 U.S. 173, 176[1977] USSC 112; , 97 S.Ct. 2238, 2240[1977] USSC 112; , 53 L.Ed.2d 199. In contrast to this case, the challenge in Jackson involved only the discrepancy between the 5% requirement and the less stringent requirements for candidates of established political parties. The issue presented here was not referred to by the Jackson District Court, and was mentioned only in passing in the jurisdictional statement subsequently filed with this Court. Thus, the issue was not adequately presented to, or decided by, this Court in its summary affirmance.
2. The Illinois Election Code, insofar as it requires independent candidates and new political parties to obtain more than 25,000 signatures in Chicago violates the Equal Protection Clause of the Fourteenth Amendment. Pp. 183-187. (a) When such fundamental rights as the freedom to associate as a political party and the right to cast votes effectively are at stake, a State must establish that its regulation of ballot access is necessary to serve a compelling interest.
(b) ‘[E]ven when pursuing a legitimate interest, a State may not choose means that unnecessarily restrict constitutionally protected liberty,’ Kusper v. Pontikes, [1973] USSC 235; 414 U.S. 51, 59[1973] USSC 235; , 94 S.Ct. 303, 308[1973] USSC 235; , 38 L.Ed.2d 260, and States must adopt the least drastic means to achieve their ends. This requirement is particularly important where restrictions on access to the ballot are involved. Since the State has determined that a smaller number of signatures in a larger political unit adequately serves its interest in regulating the number of candidates on the ballot, the signature requirements for independent candidates and political parties seeking offices in Chicago are clearly not the least restrictive means of achieving the same objective. Appellant State Board of Elections has advanced no reason, much less a compelling one, why the State needs a more stringent requirement for elections in Chicago than for statewide elections.
(c) Prior invalidation of Illinois’ rules regarding geographic distribution of signatures tied the requirements for both city and state candidates solely to a population standard. However, while this may explain the anomaly at issue here, it does not justify it. Historical accident, without more, cannot constitute a compelling state interest.
3. The Court of Appeals properly dismissed as moot appellant’s claim that the Chicago Board of Election Commissioners lacked authority to conclude a settlement agreement with respect to the unresolved issue whether the 5% signature requirement coupled with the filing deadline impermissibly burdened First and Fourteenth Amendment rights. Appellant has presented no evidence creating a reasonable expectation that the Chicago Board will repeat its purportedly unauthorized actions in subsequent elections.
This case is cited by:

  • Cited – Bank Mellat -v- Her Majesty’s Treasury (No 2) SC (Bailii Summary, WLRD, Bailii, [2013] UKSC 39, [2013] Lloyd’s Rep FC 580, [2013] 3 WLR 179, [2013] HRLR 30, [2013] 4 All ER 533, [2013] WLR(D) 244, WLRD, UKSC 2011/0040, SC Sumary, SC)
    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 . .

(This list may be incomplete)

Last Update: 16-May-16
Ref: 535120

Schreiber v Canada (Attorney General); 12 Sep 2002

References: [2002] SCJ No 63, [2002] 3 SCR 269, [2002] SCC 62
Links: SCC
Coram: McLachlin, Beverley; Gonthier, Iacobucci, Bastarache, Binnie, Arbour and LeBel JJ
SCC (Supreme Court of Canada) International law – Sovereign immunity – Attornment to Canadian court’s jurisdiction exception – Germany initiating extradition process against Canadian citizen – Citizen arrested by RCMP and spending eight days in jail – Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada – Whether Germany immune from jurisdiction of Canadian courts – Whether attornment to Canadian court’s jurisdiction exception applicable so as to deprive Germany of its immunity from instant action – Whether Germany waived its immunity from lawsuits in Canadian courts when it initiated extradition process – State Immunity Act, R.S.C. 1985, c. S-18, s. 4(2)(b).
International law – Sovereign immunity — Personal injury exception — Scope of exception — Germany initiating extradition process against Canadian citizen — Citizen arrested by RCMP and spending eight days in jail — Citizen suing Germany seeking damages for personal injuries suffered as a result of his arrest and detention in Canada — Whether Germany immune from jurisdiction of Canadian courts — Whether personal injury exception applicable so as to deprive Germany of its immunity from instant action — Whether exception distinguishes between jure imperii and jure gestionis acts — Whether exception applies only to claim of physical injury — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a).
Statutes — Interpretation — Bilingual statutes — Personal injury exception to state immunity — Meaning of expression ‘personal injury’ — Whether French version best reflects common intention of legislator found in both versions — Whether amendment made by Federal Law-Civil Law Harmonization Act to English version substantively changed the law — Purpose of harmonization legislation — State Immunity Act, R.S.C. 1985, c. S-18, s. 6(a) — Federal Law-Civil Law Harmonization Act, No. 1, S.C. 2001, c. 4, s. 121.
This case is cited by:

  • Cited – The Federal Republic of Nigeria -v- Ogbonna EAT (Bailii, [2011] UKEAT 0585_10_1207)
    EAT JURISDICTIONAL POINTS – State immunity
    A claim for compensation for psychiatric illness caused by unlawful discrimination is a claim for ‘personal injury’ within the meaning of section 5 of the State . .

Welsh v United States; 15 Jun 1970

References: 398 US 333 (1970), [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308
Links: Worldlii
Coram: Black, Douglas, Marshall, Brennan JJ
United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’
This case cites:

  • Cited – United States -v- Seeger (380 US 163 (1965), Wordlii)
    United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces. . .

This case is cited by:

United States v Seeger; 8 Mar 1965

References: 380 US 163 (1965)
Links: Wordlii
Coram: Clark J
United States Supreme Court – The respondent claimed conscientius objection to serving in the armed forces.
This case is cited by:

  • Cited – Welsh -v- United States (398 US 333 (1970), Worldlii, [1970] USSC 147, 90 SCt 1792, 26 Led 2d 308)
    United States Supreme Court – The appellant had refused to submit to joining the Armed Forces because he was ‘by reason of religious training and belief . . conscientiously opposed to participation in war in any form.’ . .
  • Cited – Hodkin and Another, Regina (on The Application of) -v- Registrar-General of Births, Deaths and Marriages SC (Bailii, [2013] UKSC 77, [2013] WLR(D) 492, [2014] PTSR 1, [2014] 1 AC 610, [2014] 1 All ER 737, [2014] 2 WLR 23, [2014] 1 FCR 577, WLRD, Bailii Summary, UKSC 2013/0030, SC Summary, SC)
    The appellants sought to be married in their regular church in London. The minister would be pleased to perform the ceremony, but church to which they belonged was part of the Church of Scientology, and had been refused registration under the 1855 . .

Davis v Beason, Sheriff; 3 Feb 1890

References: 133 US 333 (1890), 33 L Ed 637, 10 SCt 299
Links: Worldlii
Coram: Field J
United States Supreme Court. The defendant claimed that the First Amendment insulated from civil punishment certain practices inspired or motivated by religious beliefs.
Held: The assetion failed: ‘It was never intended or supposed that the amendment could be invoked as a protection against legislation for the punishment of acts inimical to the peace, good order, and morals of society.’ The Court adopted a strictly theistic definition of religion.
This case is cited by:

Lumley v Gye (2); 14 Jan 1854

References: [1854] EngR 95, (1854) 3 El & Bl 114, (1854) 118 ER 1083
Links: Commonlii
A commission, under stat. 1 W. 4, c. 22, S. 4, issued at the instance of the defendant, directed to an English barrister, to examine witnesses in Germany. The witness, a Prussian subject, being at Berlin, the commissiotier went thither, but learned that, by the Prussian law, an oath could be administered to a Prussian subject only by a Prussian judge, or some one authorized by a Prussian Court. On the petition of the cornmissioner, a Prussian Court authorized D., a Prussian to administer the oath. On the commission beirig opened, D. insisted on assuming the controul of tbe whole examination, and rejected a question put conformably to the English law, on the ground that it could not be put conformably to the Prussian law. The parties then refused to act further under the commission. The commissioner returned these facts: and application was then made, by tha defendant, for a new commission, to be directed to a Prussiam court or judge, without the clause requiring the commissioner to be sworn. From the affidavit in support of the rule, the above facts appeared ; and it appeared, further, from the opinion of a Prussian lawyer, that the Prussian rules of evidence were different from the English, especilly that examination and cross-examination by counsel was not permitted .
This case cites:

  • See Also – Lumley -v- Gye ((1853) 2 E & B 216, [1853] EngR 15, Commonlii, (1853) 2 El & Bl 216, (1853) 118 ER 749, Bailii, [1853] EWHC QB J73)
    An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .

Government of the Republic of Spain v SS ‘Arantzazu Mendi’: HL 1939

References: [1939] AC 256
Coram: Lord Atkin
The House considered the weight to be given to a certificate as to a statement by HM government as to the recognition of the defendant as a sovereign state: ‘Our State cannot speak with two voices on such a matter, the judiciary saying one thing, the executive another. Our Sovereign has to decide whom he will recognize as a fellow sovereign in the family of States; and the relations of the foreign State with ours in the matter of State Immunities must flow from that decision alone.’
This case is cited by:

Malnak v Yogi; 2 Feb 1979

Links: Worldlii
Coram: Aldisert, Adams and Hunter, Circuit Judges
United States Court of Appeals – Third Circuit. The court considered whether the programme of teaching transcendental meditation and its associated Science of Creative Intelligence was a religious activity and so was not to be allowed to be taught in state schools.
Held: It was such. Judge Adams, said that religion bore the same meaning in that context as in the free exercise of religion clause of the Constitution, noting that the law had moved towards a broader approach in recognition of the fact that adherence to the traditional definition would deny religious identification to the faiths adhered to by millions of Americans.
Adams J thought that it wa one thing to conclude ‘by analogy’ that a particular group of ideas is religious; it was quite another to explain what indicia are to be looked at in making such an analogy and justifying it. He identified three such indicia.
The first was that the belief system is concerned with the ultimate questions of human existence: the meaning of life and death, mankind’s role in the universe, the proper moral code of right and wrong. The second was that the belief system is comprehensive in the sense that it provides an all-embracing set of beliefs in answer to the ultimate questions. The third was that there were external signs that the belief system was of a group nature which could be analogised to accepted religions. Such signs might include formal services, ceremonial functions, the existence of clergy, structure and organisation, and attempts at propagation. These indicia were not to be thought of as a final test for a religion. Rather, they were features which recognised religions would typically exhibit.
This case is cited by:

Underhill v Hernandez; 29 Nov 1897

References: (1897) 168 US 250, [1897] USSC 197, 18 SCt 83, 42 L.Ed. 456
Links: Worldlii
Coram: Fuller CJ
(US Supreme Court) Fuller CJ said: ‘Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.’
This case cites:

  • Applied – Duke of Brunswick -v- The King of Hanover HL ((1848) 2 HL Cas 1, (1844) 6 Beav 1, [1848] EngR 794, Commonlii, (1848) 2 HLC 1, (1848) 9 ER 993)
    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 . .

This case is cited by:

  • Cited – Regina -v- Secretary of State for Foreign and Commonwealth Affairs ex parte British Council of Turkish Cypriot Associations and Another Admn (Bailii, [1998] EWHC Admin 341, 112 ILR 735)
    The applicants sought judicial review of the respondent’s decision to support the application for admission to the Eurorpean Community of Cyprus.
    Held: Leave was refused: ‘the independence of Cyprus since 17th August 1960 forecloses any power . .
  • Cited – Lucasfilm Ltd and Others -v- Ainsworth and Another SC ([2011] 3 WLR 487, [2011] FSR 41, [2011] Bus LR 1211, Bailii, [2011] UKSC 39, Bailii Summary, SC, SC Summary, UKSC 2010/0015, [2011] 4 All ER 817, [2011] FSR 41, [2012] 1 All ER (Comm) 1011, [2012] 1 AC 208, [2012] EMLR 3,, [2011] ECDR 21)
    The claimant had produced the Star War films which made use of props, in particular a ‘Stormtrooper’ helmet designed by the defendant. The defendant had then himself distributed models of the designs he had created. The appellant obtained judgment . .
  • Cited – Buttes Gas and Oil Co -v- Hammer (No 3) HL ([1982] AC 888, [1981] 3 All ER 616, [1981] 3 WLR 787)
    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 . .
  • Cited – Shergill and Others -v- Khaira and Others SC (Bailii, [2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, Bailii Summary, WLRD, UKSC 2012/0234, SC Summary, SC, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243)
    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. . .

North River Ins Co v American Home Assurance Co; 15 Mar 1989

References: (1989) 210 Cal App 3d 108
Links: Justia
Coram: Woods (Fred), J, Lillie, P J., and Johnson, J
California Court of Appeals
This case is cited by:

  • Cited – Teal Assurance Company Ltd -v- WR Berkley Insurance (Europe) Ltd SC (Bailii, [2013] UKSC 57, [2014] Lloyd’s Rep IR 56, [2013] WLR(D) 332, [2013] 2 CLC 390, [2013] 4 All ER 643, [2013] BUS LR 109, [2013] 2 All ER (Comm) 1009, WLRD, Bailii Summary, UKSC 2012/0014, SC Smmary, SC)
    An international engineering company had several layers of professional indemnity insurance. The top later did not cover claims originating in the US or Canada. The several insurers now disputed apportionment of liability between them. The . .

Case of the Mavrommatis Palestine Concessions; PICJ 1924

References: (1924) PCIJ Rep Series A, No. 2
(Permanent International Court of Justice) ‘It is an elementary principle of international law that a State is entitled to protect its subjects, when injured by acts contrary to international law committed by another State, from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up the case of one of its subjects and by resorting to diplomatic action or international judicial proceedings on his behalf, a State is in reality asserting its own rights – its right to ensure, in the person of its subjects, respect for the rules of international law.
The question, therefore, whether the present dispute originates in an injury to a private interest, which in point of fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the latter the State is sole claimant.’
This case is cited by:

  • Cited – Occidental Exploration & Production Company -v-Republic of Ecuador CA (Bailii, [2005] EWCA Civ 1116, Times 23-Sep-05, [2006] 2 WLR 70, [2006] QB 432)
    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 . .

Perez v Brownell; 31 Mar 1958

References: [1958] USSC 56, 356 US 44, 78 SCt 568, 2 LEd2d 603
Links: Worldlii
Coram: Frankfurter J, Warren CJ
(United States Supreme Court)
Warren CJ (dissenting) described a right to nationality as ‘man’s basic right for it is nothing less than the right to have rights’.
This case is cited by:

  • Cited – Secretary of State for The Home Department -v- Al-Jedda SC (Bailii, [2013] UKSC 62, Bailii Summary, [2013] WLR(D) 371, [2014] AC 253, [2014] INLR 131, [2014] 1 All ER 356, [2014] Imm AR 229, [2014] 1 AC 253, [2014] HRLR, [2013] 3 WLR 1006, UKSC 2012/0129, SC Summary, SC, WLRD)
    The claimant had obtained British citizenship, but had had it removed by the appellant by an order under the 1981 Act after he came to be suspected of terrorist involvement. He had appealed against the order, eventually succeeding on the basis that . .

Kuwait Oil Tanker Company Sak; Sitka Shipping Incorporated v Abdul Fattah Sulaiman Khaled Al Bader; Hassan Ali Hassan Qabazard; Timothy St John Stafford and H Clarkson and Company Limited; Hugh O’Neill Mccoy; Kuwait Petroleum Corporation and Sheikh Ali Kh: CA 18 May 2000

References: Times 30-May-00, Gazette 08-Jun-00, [2000] 2 All ER Comm 271, [2000] EWCA Civ 160
Links: Bailii
Coram: Nourse LJ
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.’
This case cites:

This case is cited by:

  • Cited – Lesotho Highlands Development Authority -v- Impregilo Spa and others CA (Bailii, [2003] EWCA Civ 1159, Times 15-Sep-03, Gazette 16-Oct-03, [2003] BLR 347, [2004] 1 All ER (Comm) 97, [2003] 2 Lloyd’s Rep 497)
    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 . .
  • Cited – Is Innovative Software Ltd -v- Howes CA (Bailii, [2004] EWCA Civ 171, Times 10-Mar-04, Bailii, [2004] EWCA Civ 275, Gazette 01-Apr-04)
    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 . .
  • Cited – Mahonia Limited -v- JP Morgan Chase Bankwest Lb Ag QBD ([2004] EWHC 1938 (Comm), Bailii)
    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 . .
  • Cited – Douglas and others -v- Hello! Ltd and others (No 3) CA (Bailii, [2005] EWCA Civ 595, Times 24-May-05, [2005] 4 All ER 128, [2005] 3 WLR 881, [2006] QB 125)
    The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
  • Cited – Meretz Investments Nv and Another -v- ACP Ltd and others ChD (Bailii, [2006] EWHC 74 (Ch), Times 27-Apr-06, [2007] Ch 197, [2006] 2 P & CR 23, [2006] 3 All ER 1029, [2006] 6 EGCS 170, [2007] 2 WLR 403)
    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 . .
  • Cited – Total Network Sl -v- Customs & Excise Commissioners CA (Bailii, [2007] EWCA Civ 39, [2007] 2 WLR 1156)
    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 Also – Kuwait Oil Tanker Company Sak and Another -v- Al Bader and others ComC (Bailii, [2008] EWHC 2432 (Comm))
    The claimants had succeeded in an action based on fraud, and now sought to enforce their judgment. . .
  • Cited – Digicel (St Lucia) Ltd and Others -v- Cable & Wireless Plc and Others ChD (Bailii, [2010] EWHC 774 (Ch))
    The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
  • Cited – Law Society of England & Wales -v- Isaac & Isaac International Holdings Ltd and Others ChD (Bailii, [2010] EWHC 1670 (Ch))
    . .