Category: International

Bank Mellat v Her Majesty’s Treasury (No 2): SC 19 Jun 2013

The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic missile programmes. The bank sought to have the direction given under section 7 of the 2008 Act.
Held: (Reid, Hope LL dissenting, Dyson, Carnwath, Neuberger LL dissenting in part) The direction was set aside. The interruption of the Bank’s commercial dealings was not a proportionate means of interrupting the pursuit by Iran of a nuclear weapons programme. The justification for singling out the appellant bank was inadequate. Additionally it had not been given the required notice of the proposal to make the direction, and therefore had not been able to make representations. The duty of fairness was not excluded by the possibility of recourse to the courts.
Lord Sumption considered the development of the test of proportionality, with a four stage test, saying that: ‘the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them.’
Lord Reed observed that: ‘the intensity [of review] – that is to say, the degree of weight or respect given to the assessment of the primary decision-maker – depends on the context.’
The concept of proportionality, which has found its way into both the law of the European Union and the European Convention on Human Rights, has always contained a fourth element. This is the importance, at the end of the exercise, of the overall balance between the ends and the means: there are some situations in which the ends, however meritorious, cannot justify the only means which is capable of achieving them.
He set out four principles: ‘(1) whether the objective of the relevant measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter.’

Lord Neuberger, President, Lord Hope, Deputy President, Lady Hale, Lord Kerr, Lord Clarke, Lord Dyson, Lord Sumption, Lord Reed, Lord Carnwath
[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, UKSC 2011/0040, [2014] 1 AC 700
Bailii Summary, Bailii, SC Sumary, SC, WLRD
Counter-Terrorism Act 2008 7, Human Rights Act 1998
England and Wales
Citing:
At first instance – 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 . .
Appeal from – Bank 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 . .
See Also – Bank 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 . .
Cited – Cooper 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 . .
Cited – Rex v Electricity Commissioners, ex parte London Electricity Joint Committee Co (1920) Ltd CA 1923
The Commissioners had a statutory duty to make schemes with regard to electricity districts and to hold local enquiries before making them. They made a draft scheme which in effect allocated duties to one body which the Act required should be . .
Cited – Wiseman v Borneman HL 1971
The House was asked whether natural justice required that there be an oral hearing of a determination by a tax tribunal of whether there was a prima facie case.
Held: A refusal to examine evidence submitted to a tribunal initially when there . .
Cited – F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
Cited – Edinburgh District Council v Secretary of State for Scotland SCS 1985
Inner House . .
Cited – Regina v Secretary of State for the Home Department ex parte Doody and Others HL 25-Jun-1993
A mandatory lifer is to be permitted to suggest the period of actual sentence to be served. The Home Secretary must give reasons for refusing a lifer’s release. What fairness requires in any particular case is ‘essentially an intuitive judgment’, . .
Cited – De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others PC 30-Jun-1998
(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to . .
Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v Shayler HL 21-Mar-2002
The defendant had been a member of the security services. On becoming employed, and upon leaving, he had agreed to keep secret those matters disclosed to him. He had broken those agreements and was being prosecuted. He sought a decision that the . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Regina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
Cited – Wheeler, Regina (on the Application of) v Office of the Prime Minister and Another Admn 25-Jun-2008
The claimant sought to challenge the decision by respondent not to offer a referendum before acceding to the Treaty of Lisbon. The claimant’s case was that the Government’s promise to hold a referendum in relation to the European Union . .
Cited – UNISON, Regina (on The Application of) v Secretary of State for Health Admn 14-Oct-2010
The union challenged proposals to enter into a new round of reform of the National Health Service.
Held: Even if a legitimate expectation has been created, the courts cannot, consistently with the constitutional function of Parliament, control . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Regina v Secretary of State for the Environment, ex parte Nottinghamshire County Council HL 12-Dec-1985
The House heard a judicial review of the Secretary of State’s assessment of the proper level of expenditure by a local authority.
Held: A ‘low intensity’ of review is applied to cases involving issues ‘depending essentially on political . .
Cited – BAPIO 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 . .
Cited – Secretary of State for the Home Department v Asif Javed and Zuifiqar Ali and Abid Ali CA 17-May-2001
A designation of Pakistan as a safe place for the return of a failed asylum applicant was unlawful because there was plain evidence that persecution of women who left the marital home, whether voluntarily or by compulsion, was widespread. . .
Cited – Bates v Lord Hailsham of St Marylebone ChD 1972
A solicitor applied to the court ex parte to restrain a committee acting under delegated powers from making an order changing the basis of charging for conveyancing on the ground that the committee was obliged to allow more time for consultation and . .
Cited – Regina v Barnsley Metropolitan Borough Council, ex parte Hook CA 1976
The applicant applied to have quashed the decision of the local council to exclude him from trading in the market and to revoke his right to have a stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the . .
Cited – Illinois State Board Of Elections v Socialist Workers Party Et Al 22-Feb-1979
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 . .
Cited – Regina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
Cited – Regina v Edwards Books and Art Ltd 18-Dec-1986
Supreme Court of Canada – the limitation of the protected right must be one that ‘it was reasonable for the legislature to impose’, and that the courts were ‘not called upon to substitute judicial opinions for legislative ones as to the place at . .
Cited – Regina v Minister of Agriculture, Fisheries and Food and Secretary of State For Health, ex Parte Fedesa and Others ECJ 13-Nov-1990
ECJ 1. Community law – Principles – Legal certainty – Protection of legitimate expectations – Prohibition of the use in livestock farming of certain substances having a hormonal action in the absence of unanimity . .
Cited – Regina v Secretary of State for Health, ex parte United States Tobacco International Inc CA 1991
The applicant company produced oral snuff. It had opened a factory in the United Kingdom after the Government, on advice, had negotiated an agreement with it to restrict the marketing of the product. The committee, basing itself not on new evidence . .
Cited – Lavigne v Ontario Public Service Employees Union 27-Jun-1991
Canlii Supreme Court of Canada – Constitutional law – Charter of Rights – Application – Union entering into collective agreement with community college containing mandatory dues check-off clause – Employee . .
Cited – Regina v Birmingham City Council ex parte Ferrero Ltd CA 1993
The case concerned the prohibition in respect of chocolate eggs containing plastic toys one of which had been swallowed by and choked to death a small boy, and a power in the interests of public safety to prohibit the sale of particular goods, which . .
Cited – RJR-MacDonald Inc v Canada (Attorney General) 21-Sep-1995
Supreme Court of Canada – Constitutional law — Division of powers — Charter of Rights — Freedom of expression — Commercial advertising — Cigarette advertising banned — Whether or not legislation validly enacted under criminal law power or . .
Cited – Jokela 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 . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Micallef 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 . .
Cited – Alberta v Hutterian Brethren of Wilson Colony 24-Jul-2009
Canlii Constitutional law – Charter of Rights – Freedom of religion – New regulation requiring photo for all Alberta driver’s licences – Members of Hutterian Brethren sincerely believing that Second Commandment . .
Cited – Quila and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Oct-2011
Parties challenged the rule allowing the respondent to deny the right to enter or remain here to non EU citizens marrying a person settled and present here where either party was under the age of 21. The aim of the rule was to deter forced . .
Cited – Bryan v The United Kingdom ECHR 22-Nov-1995
Bryan was a farmer at Warrington in Cheshire. He built two brick buildings on land in a conservation area without planning permission and the planning authority served an enforcement notice for their demolition. He appealed on grounds (a) (that . .
Cited – John v Rees and Others; Martin and Another v Davis and Others ChD 1969
The Court was asked as to the validity of proceedings at a meeting of the members of the local Labour Party which had broken up in disorder. The proceedings were instituted by the leader of one faction on behalf of himself and all other members of . .

Cited by:
Applied – Mosekari v The London Borough of Lewisham Admn 5-Nov-2014
The claimant recently qualified teacher alleged that the school at which he had competed his statutoryinduction period had, by failing to record it properly denied him the status of qualified teacher. The defendant replied that there was no . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – SG and Others, Regina (on The Application of) v Secretary of State for Work and Pensions SC 18-Mar-2015
The court was asked whether it was lawful for the Secretary of State to make subordinate legislation imposing a cap on the amount of welfare benefits which can be received by claimants in non-working households, equivalent to the net median earnings . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
Cited – Gaughran v Chief Constable of The Police Service of Northern Ireland (Northern Ireland) SC 13-May-2015
The court was asked as to to the right of the Police Service of Northern Ireland to retain personal information and data lawfully obtained from the appellant following his arrest for the offence of driving with excess alcohol.
Held: The appeal . .
Cited – Lumsdon and Others, Regina (on The Application of) v Legal Services Board SC 24-Jun-2015
The appellant, barristers and solicitors, challenged the respondent’s approval of alterations to their regulatory arrangements, under Part 3 of Schedule 4 to the 2007 Act. The alterations gave effect to the Quality Assurance Scheme for Advocates . .
Cited – Smith v Lancashire Teaching Hospitals NHS Trust and Another QBD 8-Sep-2016
The claimant had cohabited with the deceased: ‘The claimant seeks a declaration in one of two alternative forms:
i) Pursuant to s.3 of the Human Rights Act 1998 . . that s.1A(2)(a) of the Fatal Accidents Act 1976 . . is to be read as including . .
Cited – Beghal v Director of Public Prosecutions SC 22-Jul-2015
Questions on Entry must be answered
B was questioned at an airport under Schedule 7 to the 2000 Act, and required to answer questions asked by appropriate officers for the purpose set out. She refused to answer and was convicted of that refusal , contrary to paragraph 18 of that . .
Cited – Coventry and Others v Lawrence and Another SC 22-Jul-2015
The appellants challenged the compatibility with the European Convention on Human Rights of the system for recovery of costs in civil litigation in England and Wales following the passing of the Access to Justice Act 1999. The parties had been . .
Cited – Ali and Bibi, Regina (on The Applications of) v Secretary of State for The Home Department SC 18-Nov-2015
At the claimants alleged that the rules requiring a foreign spouse or partner of a British citizen or a person settled in this country to pass a test of competence in the English language before coming to live here were an unjustifiable interference . .
Cited – Wang Yam, Regina (on The Application of) v Central Criminal Court and Another SC 16-Dec-2015
The appellant was to apply to the ECHR challenge the fairness of his trial because it was held partially in camera. The UK resisted this application. The appellant sought to be permitted in his response to disclose and refer to contents of the . .
Cited – Youssef v Secretary of State for Foreign and Commonwealth Affairs SC 27-Jan-2016
An Egyptian national, had lived here since 1994. He challenged a decision by the Secretary of State,as a member of the committee of the United Nations Security Council, known as the Resolution 1267 Committee or Sanctions Committee. The committee . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
Cited – Hesham Ali (Iraq) v Secretary of State for The Home Department SC 16-Nov-2016
The appellant, an Iraqi national had arrived in 2000 as a child, and stayed unlawfully after failure of his asylum claim. He was convicted twice of drugs offences. On release he was considered a low risk of re-offending. He had been in a serious . .
Cited – AB v Her Majesty’s Advocate SC 5-Apr-2017
This appeal is concerned with a challenge to the legality of legislation of the Scottish Parliament which deprives a person, A, who is accused of sexual activity with an under-aged person, B, of the defence that he or she reasonably believed that B . .
Cited – Tigere, Regina (on The Application of) v Secretary of State for Business, Innovation and Skills SC 29-Jul-2015
After increasing university fees, the student loan system was part funded by the government. They introduced limits to the availability of such loans, and a student must have been lawfully ordinarily resident in the UK for three years before the day . .
Cited – McCann v The State Hospitals Board for Scotland SC 11-Apr-2017
A challenge by request for judicial review to the legality of the comprehensive ban on smoking at the State Hospital at Carstairs which the State Hospitals Board adopted. The appellant, a detained patient, did not challenge the ban on smoking . .
Cited – A and B, Regina (on The Application of) v Secretary of State for Health SC 14-Jun-2017
The court was asked: ‘Was it unlawful for the Secretary of State for Health, the respondent, who had power to make provisions for the functioning of the National Health Service in England, to have failed to make a provision which would have enabled . .
Cited – Hussain, Regina (on The Application of) v Secretary of State for Health and Social Care Admn 21-May-2020
No interim relief for Mosque Services
The claimant Chairman of a mosque challenged the Regulations in so far as they prohibited communal prayers. He now sought interim relief so as to allow Friday prayers. Social distancing was proposed, and a contrast was made with other activities . .
Cited – Haralambous, Regina (on The Application of) v Crown Court at St Albans and Another SC 24-Jan-2018
The appellant challenged by review the use of closed material first in the issue of a search warrant, and subsequently to justify the retention of materials removed during the search.
Held: The appeal failed. No express statutory justification . .
Cited – Gallaher Group Ltd and Others, Regina (on The Application of) v The Competition and Markets Authority SC 16-May-2018
No Administrative Duty of Equal Treatment
Extent and consequences of duties of ‘equal treatment’ or ‘fairness’, said to have been owed by the Office of Fair Trading to those subject to investigation under the Competition Act 1998. The respondent had entered negotiations with several parties . .
Cited – Miller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

International, Banking, Human Rights

Updated: 30 December 2021; Ref: scu.510915

Re J (A Child) (1996 Hague Convention) (Morocco): CA 1 Apr 2015

M appealed against an order for the return of her child to Morocco. Both parents had dual Moroccan and UK citizenship. The child was born in the UK, but later lived with them in Morocco. The parents split, with M awarded custody in Morocco, but staying access for F. M returned to the UK with J, and now appealed from an order for his return made under the Court’s inherent jurisdcition.
Held: The mother’s appeal succeeded.
Black LJ stated that ‘When I gave permission, like the parties I was thinking in terms of whether the well known principles in In re J (A Child)(Custody Rights: Jurisdiction) [2006] 1 AC 80 would need modification in the light of the coming into force of the 1996 Hague Convention’. It however became clear to her that ‘the impact of the 1996 Hague Convention is far more radical’. Article 11(1) imports three conditions before a court ‘can exercise’ jurisdiction: ‘(i) The case is one of urgency, (ii) The child (or, where relevant, property belonging to the child) is present in the contracting state of the court in question; (iii) The steps the court is going to take are ‘necessary measures of protection”

Moore-Bick VP, Black, Gloster LJJ
[2015] EWCA Civ 329, [2015] 2 FLR 513, [2015] 3 WLR 747, [2015] WLR(D) 201, [2015] Fam Law 628
Bailii, WLRD
Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Co-operation in respect of Parental Responsibility and Measures for the Protection of Children 1996
England and Wales
Citing:
Cited – Re 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 . .

Cited by:
Appeal ffrom – In re J (A Child) SC 25-Nov-2015
The court considered for the first time the scope of the jurisdiction conferred by article 11 of the 1996 Convention ‘in all cases of urgency’ upon the Contracting State where a child is present but not habitually resident. F had obtained an order . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 29 December 2021; Ref: scu.545618

Fawwaz v Secretary of State for The Home Department (3): Admn 2 Mar 2015

Refusal of accession to Letters rogatory.

Burnett LJ, Wyn Williams J
[2015] EWHC 166 (Admin)
Bailii
Cited by:
See Also – Fawwaz v Secretary of State for The Home Department (2) Admn 2-Mar-2015
Refusal of accession to Letters rogatory. . .
See Also – Fawwaz v Secretary of State for The Home Department (1) Admn 2-Mar-2015
. .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 28 December 2021; Ref: scu.543782

National Iranian Tanker Company and Others v Secretary of State for Foreign and Commonwealth Affairs: Admn 9 Feb 2015

Applications for interim relief against inclusions in lists for consideration for inclusion in companies against whom sanctions might be taken for association with Iranian anti nuclear proliferation steps.

Green J
[2015] EWHC 282 (Admin)
Bailii
England and Wales

International

Updated: 28 December 2021; Ref: scu.543092

Schloendorff v Society of New York Hospital: 1913

(USA) The libertarian principle of self-determination allows that ‘Every human being of adult years and sound mind has a right to determine what shall be done with his own body, and a surgeon who performs an operation without the patient’s consent commits an assault.’

Cardozo J
(1914) 105 NE 92, (1914) 211 NY 125, (1914) 52 LRANS 505
United States
Cited by:
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions and others CA 19-Feb-2009
The claimant suffered a debilitating terminal disease. She anticipated going to commit suicide at a clinic in Switzerland, and wanted first a clear policy so that her husband who might accompany her would know whether he might be prosecuted under . .

Lists of cited by and citing cases may be incomplete.

International, Torts – Other, Health Professions

Updated: 28 December 2021; Ref: scu.250060

PCL and Others v The Y Regional Government of X: ComC 23 Jan 2015

The Defendant, YRG applied to set aside without notice orders permitting the Claimants to serve an arbitration claim form and other documents on YRG at the address of their solicitors in the jurisdiction and setting down an expedited timetable for the determination of the arbitration claim, and abridging the time for filing an acknowledgment of service to 3 business days. YRG contended that the court had no power to make the Orders by reason of the mandatory provisions of s.12 of the 1978 Act. Further or alternatively, that the Orders should be set aside for failure to make full and fair disclosure. The application succeeded, and the orders were set aside.

Hamblen J
[2015] EWHC 68 (Comm)
Bailii
State Immunity Act 1978 12

Jurisdiction, International, Arbitration

Updated: 27 December 2021; Ref: scu.542026

Iraqi 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 omission of British Forces after 31 December 2008. It was agreed that the jurisdictional immunity which CPA 17 afforded for acts which occurred before 31 December 2008 was of enduring effect. It therefore it was been impossible for any of the Claimants in this litigation to bring their claims in the Iraqi courts.

Leggatt J
[2015] EWHC 116 (QB)
Bailii
Foreign Limitation Periods Act 1984
England and Wales
Cited by:
Appeal from QBD – Ministry 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’ . .
At QBD – 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 . .

Lists of cited by and citing cases may be incomplete.

Limitation, International

Updated: 27 December 2021; Ref: scu.541766

Baker v Selden: 1879

(US Supreme Court) Blank account books were not the subject of copyright.

(1879) 101 US 99
United States
Cited by:
Cited – Kalamazoo (Aust) Pty v Compact Business Systems Ltd 1985
(Supreme Court of Queensland) The case concerned the copying of a collection of accounting forms which when used together made up an accounting system. Some of the forms were intended to be used in a peg-board system in which writing on the top form . .

Lists of cited by and citing cases may be incomplete.

International, Intellectual Property

Updated: 27 December 2021; Ref: scu.220333

North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark; Federal Republic of Germany v Netherlands): ICJ 20 Feb 1969

ICJ The dispute related to the delimitation of the continental shelf between the Federal Republic of Germany and Denmark on the one hand, and between the Federal Republic of Germany and the Netherlands on the other. The Parties asked the Court to state the principles and rules of international law applicable, and undertook thereafter to carry out the delimitations on that basis. The Court rejected the contention of Denmark and the Netherlands to the effect that the delimitations in question had to be carried out in accordance with the principle of equidistance as defined in Article 6 of the 1958 Geneva Convention on the Continental Shelf, holding: – that the Federal Republic, which had not ratified the Convention, was not legally bound by the provisions of Article 6; – that the equidistance principle was not a necessary consequence of the general concept of continental shelf rights, and was not a rule of customary international law.
The court gave guidance on the approach to be taken where a treaty made between certain parties is said to have become binding on other states not party to the treaty: ‘The Court must now proceed to the last stage in the argument put forward on behalf of Denmark and the Netherlands. This is to the effect that even if there was at the date of the Geneva Convention [on the Continental Shelf, 1958] no rule of customary international law in favour of the equidistance principle, and no such rule was crystallized in Article 6 of the Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on the basis of subsequent State practice, – and that this rule, being now a rule of customary international law binding on all States, including therefore the Federal Republic, should be declared applicable to the delimitation of the boundaries between the Parties’ respective continental shelf areas in the North Sea.
In so far as this contention is based on the view that Article 6 of the Convention has had the influence, and has produced the effect, described, it clearly involves treating that Article as a norm-creating provision which has constituted the foundation of, or has generated a rule which, while only conventional or contractual in its origin, has since passed into the general corpus of international law, and is now accepted as such by the opinio juris, so as to have become binding even for countries which have never, and do not, become parties to the Convention. There is no doubt that this process is a perfectly possible one and does from time to time occur: it constitutes indeed one of the recognized methods by which new rules of customary international law may be formed. At the same time this result is not lightly to be regarded as having been attained.’

[1969] ICJ Rep 3
ICJ
Cited by:
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 27 December 2021; Ref: scu.220673

Snetzko v Snetzko: 27 Jun 1996

(Ontario – Superior Court of Justice) APPEAL – Grounds – Factual findings by trial judge – Deference to trial judge’s factual determinations and findings – Where trial judge has had chance to observe witnesses while testifying and to draw conclusions about credibility, appeal court should not interfere in those factual findings, especially in child custody case, unless reasons show manifest error or significant misapprehension of evidence, or judge’s drawing erroneous conclusions from evidence or judge’s ignoring any evidence – In this case, however, trial judge disposed of case by way of affidavit evidence rather than viva voce testimony – Under those circumstances, appellate court might be sorely tempted to substitute its views for those of trial judge, but that temptation should be resisted – Arguably, threshold for appellate interference would not be as high as in case where oral testimony was given, but measure of deference should still be shown to trial judge’s findings.
CUSTODY OF CHILD – Jurisdiction – Habitual residence of child – Residing with one parent – With ‘consent, implied consent or acquiescence’ of other parent – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, mother purported to move to Ontario with children, although father’s notarized letter (for immigration purposes) gave her permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge concluded that father’s time-limited consent constituted acquiescence to relocation by mother and children and that Ontario court therefore had jurisdiction to hear mother’s application – Father appealed – In face of this limited consent, appeal court could not understand how trial judge could have concluded that father had consented or acquiesced – Trial judge had misapprehended evidence – Children were not habitually resident in Ontario and Ontario court could not assume jurisdiction under clause 22(1)(a) of Children’s Law Reform Act – Father’s appeal succeeded under clause 22(1)(a) but failed under clause 22(1)(b).
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Availability in Ontario of substantial evidence about child’s best interests – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge noted that children’s had lived in stable Ontario residence for 4 months and he accepted mother’s evidence about persons in Ontario who could testify about her parenting ability and about children’s welfare – Judge agreed that test under subclause 22(1)(b)(ii) was whether such evidence were available in Ontario, not comparison of whether more substantial evidence were available in Ontario or in New York state – Appeal court found that trial judge was entitled to come to this conclusion on evidence before him and that there was no significant misapprehension of evidence or that any evidence has been ignored or that erroneous conclusion had been drawn from it.
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Balance of convenience to exercise jurisdiction in Ontario – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge was impressed by mother’s filing of affidavit that listed witnesses whom she would call, whereas father, for whatever reason, did not do so – Appeal court ruled that, on this basis, trial judge was entitled to find that it was appropriate for jurisdiction to be exercised in Ontario under subclause 22(1)(b)(v) – There was no manifest error, misapprehension of evidence or any erroneous conclusions drawn from evidence in this finding – No reason to disturb trial judge’s decision to assume jurisdiction under clause 22(1)(b) of Act.
CUSTODY OF CHILD – Jurisdiction – Jurisdiction despite lack of habitual residence – Six-part test under clause 22(1)(b) of Children’s Law Reform Act – Child’s real and substantial connection with Ontario – Parents lived in United States with two children, although mother regularly brought children to her native Ontario to visit maternal grandparents and extended family – When marriage broke down, father had prepared notarized letter (for immigration purposes) giving mother permission to travel to Ontario with the children for only 4 months – When mother applied to Ontario court for custody of children, trial judge noted that children’s connection with maternal grandparents and uncle was based not just on past 4 months spent with them but on several trips to Ontario before parents separated – Because of their relatively young age, they were less likely to have independent connection with New York and were more dependent on mother who had real and substantial connection with Ontario – Appeal court thus concluded that, on basis of evidence before him, trial judge was entitled to find that children had real and substantial connection with Ontario, thus meeting requirements of subclause 22(1)(b)(v).

Justice James D. Carnwath
1996 CanLII 11326 (ON SC)
Canlii
Canada
Cited by:
Cited – Re 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, International, Jurisdiction

Updated: 27 December 2021; Ref: scu.654501

Hoholm v Slovakia: ECHR 13 Jan 2015

The applicant alleged in particular that, contrary to the requirements of Article 6.1 of the Convention, he had been denied a hearing within a reasonable time in respect of the claim he had lodged in Slovakia for the return of his children (‘the children’) to the Kingdom of Norway under the Convention on the Civil Aspects of International Child Abduction

Josep Casadevall, P
35632/13 – Chamber Judgment, [2015] ECHR 19
Bailii
European Convention on Human Rights

Human Rights, Children, International

Updated: 25 December 2021; Ref: scu.541371

SP (Father) v EB (Mother) and Another: FD 26 Nov 2014

Judgment on the applicant father’s application for an order that his daughter Kate, who is now aged 14, be returned forthwith to Malta pursuant to Article 12 of the Hague Convention on the International Aspects of Child Abduction 1980, as incorporated domestically by the Child Abduction and Custody Act 1985.
Held: Mostyn J said: ‘there is no need for the judge to ‘incant mechanically’ passages from the authorities, the evidence or the submissions, as if he were ‘a pilot going through the pre-flight checklist.’

Mostyn J
[2014] EWHC 3964 (Fam), [2016] 1 FLR 228
Bailii
Child Abduction and Custody Act 1985, Hague Convention on the International Aspects of Child Abduction 1980
England and Wales
Cited by:
Cited – Owens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 24 December 2021; Ref: scu.539462

Falk v Sinclair: 2010

The question was whether having removed child to another country by agreement, and later deciding to stay, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return arrives.
Held: ‘the aeroplane lands and the child is not among those who disembark.’

(2009) 692 F Supp 2d 147
United States
Cited by:
Cited – Re 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 . .
Cited – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.654500

In re G (A Minor) (Enforcement of Access Abroad): CA 1993

The Convention did not provide for mutual enforcement of access rights, and when determining matters of access relating to access to children to whom the Convention applied English courts are entitled to apply the Children Act 1989, and to consider the child’s welfare as paramount. F’s child was brought by M to live in England with the permission of a Canadian court. He applied to the English authorities for the enforcement of access rights which have been granted him by the Canadian Court, stating that his access to the child should take place in Canada. M argued that the Convention did not apply to the child, and that the courts should apply English law.
held that one the convention did apply to a child who was a bit really resident in a contracting state immediately before the beach of access arrangements BVB Minors enforcement of access abroad 1988 considered to the convention did not provide for the enforcement of access arrangements enforcement of access rights, and therefore domestic law should be applied by the English courts making the Paramount consideration that the child’s welfare full stop the father would therefore be granted access, but only in England, not in Canada.

[1993] 2 WLR 824, [1993] Fam 216, [1993] 3 All ER 657, [1993] 1 FLR 669
Convention on the Civil Aspects of International Child Abduction
England and Wales
Cited by:
Cited – Re 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, International

Updated: 23 December 2021; Ref: scu.654499

Re P and O (Child Abduction: Anticipatory Breach): FD 10 Nov 2016

M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become habitually resident in the UK. There was no concept of repudiatory retention known to the law. The application to the immigration authorities did not amount to such a repudiatory retention, because although it was concealed from F, something had to be done to regularise the stay of the children once it was to last more than their six month visas permitted. F could not properly have objected to such regularisation, even if M feared that he might have tried.

His Honour Judge Clifford Bellamy
[2016] EWHC 3535 (Fam)
Bailii
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Cited by:
Appeal from – In Re C (Children) CA 12-Jul-2017
F appealed against refusal of an order requiring M to return their two children to Australia. . .
At FD – Re 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, International

Updated: 23 December 2021; Ref: scu.654120

Re 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
(2) whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State temporarily with the consent of the left-behind parent or under court permission, and the agreed or stipulated time for return has not yet arrived.’ M came from Australia with the two children. F agreed to them staying for a year, but she then sought British Nationality for them, without telling F.
Held: (Lord Kerr dissenting in part, Lord Wilson dissenting) Where, the wrongful action occurred only after the child had acquired the new habitual residence, a summary order for return should not be made. Rather the normal procedures for custody disputes should be used. If there is a pre-emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left-behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement.

Lady Hale, President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes
[2018] UKSC 8, [2019] AC 1, [2018] 1 FLR 861, [2018] 2 WLR 683, [2018] 3 All ER 1, [2018] WLR(D) 90, [2018] 2 FCR 733, UKSC 2017/0135
Bailii, Bailii Summary, WLRD, SC, SC Summary, SC Summary Video, SC 2017 Oct 09 am Video, SC 2017 Oct 09 pm Video, SC 2017 Oct 10 am Video
Hague Convention on the Civil Aspects of International Child Abduction, Child Abduction and Custody Act 1985
England and Wales
Citing:
At FD – Re P and O (Child Abduction: Anticipatory Breach) FD 10-Nov-2016
M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become . .
Cited – 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 . .
Cited – In Re S (Minors) (Convention On the Civil Aspects of International Child Abduction) FD 21-Jul-1993
(Child Abduction: Wrongful Retention) A failure by a parent to return a child to his country of residence can constitute a wrongful retention under the Convention. Where both parents have equal status in relation to the child, one parent can not . .
Appeal From – In Re C (Children) CA 12-Jul-2017
F appealed against refusal of an order requiring M to return their two children to Australia. . .
Cited – In re H (Minors) CA 20-Aug-1990
The Hague Convention did not apply to wrongful acts of removal which had taken place before the 1985 Act came into force.
Lord Donaldson MR said: ‘plainly the Act and Convention can only apply if the child is found in a different State from . .
Cited – In Re H (Minors) (Abduction: Custody Rights) HL 1991
The House addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts. The issue arose in the context of the commencement date for the 1985 Act as between the two States involved.
Held: For the . .
Cited – In re G (A Minor) (Enforcement of Access Abroad) CA 1993
The Convention did not provide for mutual enforcement of access rights, and when determining matters of access relating to access to children to whom the Convention applied English courts are entitled to apply the Children Act 1989, and to consider . .
Cited – Re 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 . .
Cited – 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 . .
Cited – OL v PQ ECJ 8-Jun-2017
ECJ (Judgment) Reference for a preliminary ruling – Judicial cooperation in civil matters – Jurisdiction, recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility – . .
Cited – C 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 – Falk v Sinclair 2010
The question was whether having removed child to another country by agreement, and later deciding to stay, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return . .
Cited – In 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 . .
Cited – Snetzko v Snetzko 27-Jun-1996
(Ontario – Superior Court of Justice) APPEAL – Grounds – Factual findings by trial judge – Deference to trial judge’s factual determinations and findings – Where trial judge has had chance to observe witnesses while testifying and to draw . .
Cited – Re B (A Minor : Habitual Residence) FD 24-Aug-2016
Hayden J said: ‘In assessing whether a child has lost a pre-existing habitual residence and gained a new one, the court must weigh up the degree of connection which the child had with the state in which he resided before the move.’ . .
Cited – O v O FD 21-Aug-2013
(Child Abduction: Return to Third Country) . .

Cited by:
Cited – NY (A Child : 1980 Hague Abduction Convention : Inherent Jurisdiction) CA 18-Jun-2019
M appealed from an order ordering the summary return of a girl to Israel. . .
Cited – O v O FD 21-Aug-2013
(Child Abduction: Return to Third Country) . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 23 December 2021; Ref: scu.604790

In Re C (Children): CA 12 Jul 2017

F appealed against refusal of an order requiring M to return their two children to Australia.

Black, Sharp, Thirlwall LJJ
[2017] EWCA Civ 980, [2018] 1 All ER 476, [2018] 1 FLR 186, [2017] 3 FCR 719, [2017] WLR(D) 479
Bailii, WLRD
Child Abduction and Custody Act 1985
England and Wales
Citing:
Appeal from – Re P and O (Child Abduction: Anticipatory Breach) FD 10-Nov-2016
M and children had come back to England from Australia, and had F’s consent to stay for another year. She then applied for British Citizenship for the children without F’s knowledge. F now sought their return.
Held: The children had become . .

Cited by:
Appeal From – Re 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.

International, Children

Updated: 23 December 2021; Ref: scu.589925

A (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 Substantive scope – Definition of ‘civil matters’ – Decision relating to the taking into care and placement of children outside the family home – Child’s habitual residence – Protective measures – Jurisdiction

[2009] EUECJ C-523/07, [2010] 1 Fam 42, [2009] 2 FLR 1, [2009] Fam Law 568, ECLI:EU:C:2009:225, [2009] ILPr 39, [2010] 2 WLR 527
Bailii
Regulation (EC) No 2201/2003
European
Citing:
Opinion – A (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 . .

Cited by:
Cited – Re 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 . .
Cited – 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 . .
Cited – 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 . .
Cited – Re 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: 23 December 2021; Ref: scu.538776

Soriano v Forensic News Llc and Others: QBD 15 Jan 2021

Claimant’s contested application to serve-out.

Jay J
[2021] EWHC 56 (QB)
Bailii, Judiciary
England and Wales
Cited by:
See Also – Soriano v Forensic News Llc and Others QBD 13-Apr-2021
Claim in defamation and misuse of private information. . .
Appeal From – Soriano v Forensic News Llc and Others CA 21-Dec-2021
Appeal and a cross-appeal against a decision of Jay J by which he granted the claimant permission to serve five media defendants in their jurisdictions of domicile in the United States of America with proceedings for libel and limited claims for . .

Lists of cited by and citing cases may be incomplete.

Information, International, Defamation

Updated: 22 December 2021; Ref: scu.657369

British Arab Commercial Bank Plc v The National Transitional Council of The State of Libya: ComC 26 Aug 2011

The issue in this case concerns the control of the accounts of the Libyan embassy in London held with the claimant, British Arab Commercial Bank Plc. The defendant is the National Transitional Council of the State of Libya, which on 27 July 2011 was recognised by Her Majesty’s Government as the ‘sole governmental authority in Libya’. The Foreign and Commonwealth Office has been represented at the hearing. The legal representatives of the government which was previously recognised have been given the opportunity to attend, and the hearing was adjourned to enable them to do so. However they have notified the court that they have been unable to obtain instructions, and do not intend to appear. In short, the issue arises because the Bank has received conflicting instructions as to the operation of the accounts. It brings these proceedings for declaratory relief under Part 8 CPR.

Blair J
[2011] EWHC 2274 (Comm)
Bailii
England and Wales

Banking, International

Updated: 22 December 2021; Ref: scu.443318

O v O: FD 21 Aug 2013

(Child Abduction: Return to Third Country)

Keehan J
[2013] EWHC 2970 (Fam), [2014] Fam 87, [2014] 2 WLR 1213, [2014] 1 FLR 1406,
Bailii
England and Wales
Citing:
Cited – Re 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 . .

Cited by:
Cited – Re 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, International

Updated: 21 December 2021; Ref: scu.516464

MD v AA and Another: FD 31 Jul 2014

M appealed against English orders recognising and registering a decision of the Bucharest Court of Appeal ordered that the custody of D who had lived with his mother in England since the age of eight weeks, should be transferred to his father in Romania. The order was registered for enforcement here.
Held: Recognition of the Romanian order would be refused. The order had been made without the child having an opportunity to be heard as to his wishes, and M had herself not been served with notice of the proceedings in any way which would have allowed her to have taken part to resist F’s application

Peter Jackson J
[2014] EWHC 2756 (Fam), [2015] 1 FLR 1272
Bailii
Council Regulation (EC) No. 2201/2003 (Brussels II Revised Regulation 2003)
England and Wales
Cited by:
Appeal from – D (A Child) (International Recognition) CA 27-Jan-2016
M and F disputed the return of their child D to Romania. F had obtained there an order for custody, and now appealed from refusal of the court here to recognise that order and enforce it. The judge had found that the proceedings in Romania had . .
At first instance – In re D (A Child) SC 22-Jun-2016
F had obtained an order in Romania for the custody of D. F obtained orders initially for the registration and enforcement of that order, but the High Court reversed that saying that neither the child nor his mother had been given adeuate opportunity . .

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 18 December 2021; Ref: scu.535493

Jurisdiction of the Courts of Danzig Case (the Beamtenabkommen): ICJ 1928

The Beamtenabkommen regulated the employment conditions of Danzig railway employees who had, after the First World War, passed into the service of the Polish Railways Administration. Poland’s contention that this treaty only created inter-State rights was rejected. The Court said that: ‘It may be readily admitted that, according to a well established principle of international law, the Beamtenabkommen, being an international agreement, cannot, as such, create direct rights and obligations for private individuals. But it cannot be disputed that the very object of an international agreement, according to the intention of the contracting Parties, may be the adoption by the Parties of some definite rules creating individual rights and enforceable by the national courts. That there is such an intention in the present case can be established by reference to the terms of the Beamtenabkommen.’

(1928) PCIJ Rep Series B No. 15
England and Wales
Cited by:
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 18 December 2021; Ref: scu.230253

Occidental Exploration and Production Company vRepublic of Ecuador: CA 9 Sep 2005

The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to hear the appeal.
Held: The appeal was dismissed. The treaty was intended to encourage bilateral trading between the US and Ecuador, and the provision for resolution of disputes was part of that. This was a determination of private rights, and not an adjudication as between states. English law had been made the curial law of the arbitration, though international law was to be preferred as the agreement to arbitrate. Here there was no attempt to invoke at national level an international treaty, and the general law of non-justiciability did not apply: ‘We see no good reason why any arbitration held pursuant to such an agreement, or any supervisory role which the court of the place of arbitration may have in relation to any such arbitration, should be categorised as being concerned with ‘transactions between States’ so as to invoke the principle of non-justiciability. ‘ The court described the international system for arbitrating banking disputes, saying: ‘The Treaty involves, on any view, a deliberate attempt to ensure for private investors the benefits and protection of consensual arbitration; and this is an aim to which national courts should, in an internationalist spirit and because it has been agreed between States at an international level, aspire to give effect.’

Mance LJ
[2005] EWCA Civ 1116, Times 23-Sep-2005, [2006] 2 WLR 70, [2006] QB 432
Bailii
Arbitration Act 1996 67
England and Wales
Citing:
Appeal from – Ecuador v Occidental Exploration and Production Company ComC 29-Apr-2005
English law doctrine of ‘non – justiciability’. . .
Cited – 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 – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – The Campaign for Nuclear Disarmament v The Prime Minister of the United Kingdom and Others QBD 17-Dec-2002
The applicant sought an advisory order from the court to interpret the meaning of United Nations Security Council resolution no 1441 with regard to steps to be taken under the resolution in the event of the failure of Iraq to comply.
Held: A . .
Cited – Case of the Mavrommatis Palestine Concessions 1924
(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 . .
Cited – Jurisdiction of the Courts of Danzig Case (the Beamtenabkommen) ICJ 1928
The Beamtenabkommen regulated the employment conditions of Danzig railway employees who had, after the First World War, passed into the service of the Polish Railways Administration. Poland’s contention that this treaty only created inter-State . .
Cited – In re Barcelona Traction, Light and Power Co Ltd (Belgium v Spain) (second phase) ICJ 5-Feb-1970
ICJ The claim arose out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated in Canada. Its object was to seek reparation for damage alleged by Belgium to have been sustained . .
Cited – Enron Corporation v The Argentine Republic ICSID 14-Jan-2004
The Barcelona Traction case ‘has been held not to be controlling in investment claims such as the present, as it deals with the separate question of diplomatic protection in a particular setting’ and that: ‘what the State of nationality of the . .
Cited – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
Cited – Philippson v Imperial Airways Ltd HL 1939
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 . .
Cited – Camuzzi International SA v The Argentine Republic (No 2) ICSID 11-May-2005
(Spanish Text) Diplomatic protection ‘cannot be considered the general rule in the system of international law presently governing the matter, but as a residual mechanism available when the affected individual has no direct channel in its own . .
Cited – Camuzzi International SA v Argentine Republic ICSID 11-May-2005
Of the Barcelona Traction case:- ‘this decision of the International Court of Justice referred particularly to the protection that could be expected by the shareholders in this case, but specifying that they can enjoy other protection, if there is a . .
Cited – Gas Natural SDG SA v The Argentine Republic ICSID 2003
‘The scheme of both the ICSID Convention and the bilateral investment treaties is that in this circumstance, the foreign investor acquires rights under the Convention and Treaty, including in particular the standing to initiate international . .
Cited – Westland Helicopters Ltd v Arab Organisation for Industrialisation 1995
International arbitration proceedings under a joint venture agreement had led to an award in Westland’s favour against the Organisation. The award was converted into a judgment and Westland obtained garnishee orders nisi against six London banks. . .
Cited – British Airways Board v Laker Airways Limited HL 1985
The plaintiffs tried to restrain the defendant from pursuing an action in the US courts claiming that the plaintiffs had acted together in an unlawful conspiracy to undermine the defendant’s business.
Held: The action in the US were unlawful . .
Cited – Maclaine Watson and Co Ltd v International Tin Council HL 2-Jan-1989
The International Tin Council was a body constituted by an international treaty not incorporated into law in the United Kingdom. The ITC was also created a legal person in the United Kingdom by article 5 1972 Order.
Held: As a legal person in . .
Cited – Secretary 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 . .
Cited – Rustomjee 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 . .
Cited – 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 . .
Cited – Fothergill v Monarch Airlines Ltd HL 10-Jul-1980
The plaintiff, on arriving at the airport found that his luggage had been lost. The defendant denied liability saying he had not notified his claim within the requisite period.
Held: Elementary justice requires that the rules by which the . .
Cited – Zoernsch 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 . .
Cited – Post 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 . .
Cited – Blackburn 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 – Henderson 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 . .
Cited – Dallal v Bank Mellat 1986
Any choice of international law to govern an agreement to arbitrate should be express. . .
Cited – Arab Monetary Fund v Hashim HL 1991
Lord Templeman said: ‘passages extracted and amassed from a lengthy speech deal with different issues and different facts’. . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Regina v Immigration Officer at Prague Airport and another, ex parte European Roma Rights Centre and others HL 9-Dec-2004
Extension oh Human Rights Beyond Borders
The appellants complained that the system set up by the respondent where Home Office officers were placed in Prague airport to pre-vet applicants for asylum from Romania were dsicriminatory in that substantially more gypsies were refused entry than . .
Cited – Regina 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.
Cited – Jones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
Cited – Case Concerning East Timor (Portugal v Australia) ICJ 18-Jul-1995
Indonesia not accepting jurisdiction of International Court of Justice not bound by it. The Court refused, in the absence of Indonesia as a party, to entertain a claim brought by Portugal challenging Australia’s right to conclude a treaty with . .
Cited – Thomas Cook and James Charles Cook v Sir James Gordon Sprigg PC 1-Aug-1899
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.
(Cape of Good . .

Cited by:
See Also – Ecuador v Occidental Exploration and Production Co ComC 2-Mar-2006
. .
Cited – Al-Jedda v Secretary of State for Defence CA 29-Mar-2006
The applicant had dual Iraqi and British nationality. He was detained by British Forces in Iraq under suspicion of terrorism, and interned.
Held: His appeal failed. The UN resolution took priority over the European Convention on Human Rights . .
Cited – ETI 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 . .
See Also – Ecuador v Occidental Exploration and Production Co CA 4-Jul-2007
Appeal against refusal to set aside arbitration award for want of jurisdiction. . .
Cited – ETI 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 . .

Lists of cited by and citing cases may be incomplete.

Arbitration, International

Updated: 18 December 2021; Ref: scu.230011

Case of the Mavrommatis Palestine Concessions: 1924

(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.’

(1924) PCIJ Rep Series A, No. 2
England and Wales
Cited by:
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 18 December 2021; Ref: scu.230252

In Re S (Minors) (Convention On the Civil Aspects of International Child Abduction): FD 21 Jul 1993

(Child Abduction: Wrongful Retention) A failure by a parent to return a child to his country of residence can constitute a wrongful retention under the Convention. Where both parents have equal status in relation to the child, one parent can not unilaterally change the habitual residence of a child.

Wall J
Times 21-Jul-1993, [1994] Fam 70
Child Abduction Act 1980
England and Wales
Cited by:
Cited – Re 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 . .
Cited – Re 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, International

Updated: 18 December 2021; Ref: scu.82183

Godard v Gray: 1870

A judgment in personam of a foreign court of competent jurisdiction cannot be questioned or impeached 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 law. This derived from the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability.

Blackburn J
(1870) LR 6 QB 139
England and Wales
Cited by:
Cited – Good Challenger Navegante S A v Metalexportimport SA CA 24-Nov-2003
The claimant sought to enforce an arbitration award made in 1983. Time might otherwise have expired, but the claimants relied on a fax which they said was an acknowledgement of the debt, and also upon a finding in a Romanian court which created an . .
Cited – 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 . .

Lists of cited by and citing cases may be incomplete.

Estoppel, International

Updated: 18 December 2021; Ref: scu.188230

Lopez-Guio v Slovakia: ECHR 3 Jun 2014

ECHR Article 8-1
Respect for family life
Lack of participation of a parent in proceedings concerning the return of his child under the Hague Convention: violation
Facts – The applicant, a Spanish national, had a child with a Slovak woman in Spain. A year later the mother took the child to Slovakia. The applicant lodged an application with the Bratislava I District Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (‘the Hague Convention’) and Council Regulation (EC) No. 2201/2003,* complaining that the mother had wrongfully removed the child. After holding two oral hearings at which the child’s court-appointed representative failed to appear, the District Court ordered the child’s return to Spain where the child had its habitual residence. The Bratislava Regional Court upheld the decision and the Supreme Court declared the mother’s subsequent appeal inadmissible. The mother then filed a complaint against the Supreme Court with the Constitutional Court, without the applicant being informed. The Constitutional Court found that the child’s rights had been violated because the child’s representative’s failure to appear had not been a valid reason for ruling on the matter without having the child’s views established. Consequently, the case was remitted to the District Court. In the fresh set of proceedings the District Court interviewed the child and his representative, and, guided by the best interests of the child, ruled that the child was not to be returned to Spain. On appeal, the ruling was upheld by the Bratislava Regional Court.
Law – Article 8: The applicant complained that the Hague Convention proceedings had been arbitrarily interfered with by the Constitutional Court’s judgment. The Court recalled that the State had positive obligations under Article 8 to adopt measures to secure respect for family life, including measures that enable parents to be reunited with their children. In meeting these obligations, the State must strike a fair balance between the competing interests at stake – those of the child, of the two parents and of public order – within the margin of appreciation afforded to it. Moreover, the decision-making process involved must be fair and such as to ensure due respect of the interests safeguarded by Article 8.
Since the applicant was not a party to and had no standing to intervene in the proceedings before the Constitutional Court and, indeed, had had no official means of finding out about the proceedings, the Court found that there had been a complete lack of procedural protection. That lack of protection had been aggravated by the fact that all ordinary and extraordinary remedies against the return order had been exhausted. Consequently, Slovakia had failed to secure to the applicant the right to respect for his family life under Article 8 of the Convention.
Conclusion: violation (unanimously).
Article 41: EUR 19,500 in respect of non-pecuniary damage; claim in respect of pecuniary damage dismissed.
* Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and the matters of parental responsibility

10280/12 – Legal Summary, [2014] ECHR 812
Bailii
European Convention on Human Rights

Human Rights, Family, International

Updated: 17 December 2021; Ref: scu.535174

IS (A Minor) v DBS and Another: FD 4 Feb 2015

IS, a girl of 15 was a ward of the court in the UK, but also subject to orders from family courts in Israel. She faced an order from the Israeli court to return to Israel, but refused to do so. Her father lived in Israel, and she in England with her mother. An application was made for an anti-suit injunction as regards the UK wardship proceedings.
Held: The court emphasised the damaging nature of the conflicts between the courts in the UK, and rather than make an order sought the co-operation of the Israeli court in frnding a way froward.

Sie Peter Singer
[2015] EWHC 219 (Fam)
Bailii
England and Wales

Children, International

Updated: 12 December 2021; Ref: scu.542317

H v H: FD 12 Dec 2007

The parties disputed the effect of a talaq divorce granted to H in Pakistan. W disputed that notice of the divorce had been served upon her. The notice was not now available.
Held: H’s evidence was credible.

Sumner J
[2007] EWHC 2945 (Fam), [2008] 2 FLR 857
Bailii
Family Law Act 1986 46 51(3) 55
England and Wales
Citing:
Cited – El Fadl v El Fadl FD 2000
The court was asked as to the recognition of a Sharia compliant divorce between Lebanese Muslims. Under the relevant Lebanese 1962 legislation a Talaq was to be pronounced before 2 witnesses, a requirement of most systems of traditional Islamic . .
Cited – Chaudhary v Chaudhary 1985
The Pakistani husband pronounced bare Talaq in Sharia form before witnesses in Kashmir, although administered by Pakistan a territory to which the Muslim Family Ordinance 1961 did not apply. Recognition of the Talaq divorce had been refused by Wood . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 12 December 2021; Ref: scu.408714

A v L: FD 11 Mar 2010

Sir Mark Potter considered the validity of an Egyptian decree obtained in breach of a restraining injunction upon which the court had relied to preserve the status of marriage.
Held: Recognition was refused on the facts.
Sir Mark Potter P (obiter) said: ‘Had I been satisfied, upon a full and thorough examination of the position, that the husband had indeed obtained his Egyptian judgment by dishonestly asserting that he had pronounced a Talaq over the telephone on or about 18 January 2008, I would have had no hesitation in acceding to Mr Howard’s submission. However for reasons already stated I have not felt it right to resolve that question….the terms of section 51(3)(a) are to my mind sufficient and appropriate to cover circumstances such as those which exist in this case and I am satisfied that I should exercise my discretion to refuse recognition of the Egyptian judgment pursuant to the terms of that paragraph. That being so, lacking as I am any detailed submissions as to the ambit of the public policy exception provided for in section 51(3)(c) of the 1986 Act, I decline to refuse recognition on that ground also.’

Sir Mark Potter P
[2010] EWHC 460 (Fam), [2010] 3 FCR 174, [2010] Fam Law 583, [2010] 2 FLR 1418, FD08D02126
Bailii
Family Law Act 1986 51
England and Wales
Cited by:
Cited – Golubovich v Golubovich CA 21-May-2010
The court was asked to rule as to the recognition of a foreign (Moscow) decree of divorce obtained in breach of an Hemain injunction. The Russian proceedings had got to a stage requiring H positively to apply to prevent the decree.
Held: The . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 12 December 2021; Ref: scu.415939

W v W: FD 4 Mar 2010

Application under the Hague Convention for the return of 3 children to Southern Ireland.

The Honourable Mrs Justice Black
[2010] EWHC 332 (Fam), [2010] Fam Law 569, [2010] 2 FLR 1150
Bailii
England and Wales

Children, International

Updated: 12 December 2021; Ref: scu.415944

Republic 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 action must be brought on the judgment. The action pleaded the waiver of state immunity in the underlying loan agreement being enforced. The respondent argued that the waiver only applied to the application of New York or Argentina.
Held: The appeal succeeded. The court had no jurisdiction to enforce the judgement and a new action must be raised. No rule has ever existed allowing the issue and service out of the jurisdiction of all claims of whatever nature against a foreign state. There was no sufficient pleading or evidence to say that the respondent had submitted to the jurisdiction or had waived immunity.

Lord Justice Mummery, Lord Justice Aikens and Lord Justice Elias
[2010] EWCA Civ 41, Times 07-May-2010, [2010] 1 CLC 38, [2010] 2 All ER (Comm) 1206, [2010] 3 WLR 874, [2010] 2 Lloyd’s Rep 442, [2011] 1 QB 8
Bailii
Civil Jurisdiction and Judgments Act 1982, State Immunity Act 1978
England and Wales
Citing:
Cited – AIC 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 . .
Appeal from – NML 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 . .

Cited by:
Appeal From – 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 . .

Lists of cited by and citing cases may be incomplete.

International

Updated: 11 December 2021; Ref: scu.396602

Iran v Berend: QBD 1 Feb 2007

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 fragment was held by Christies. The claimant said that the French law of movable property applied.
Held: Eady J said: ‘English law has held for many years, in order partly to achieve consistency and certainty, that where movable property is concerned title should be determined by the lex situs of the property at the time when the disputed title is said to have been acquired’ and saw no place for the introduction of the doctrine of renvoi in the context of a tangible object, and title fell to be determined under French domestic law. Under such, the fact of the defendant’s good faith in her purchase was determinative, and the claim failed.

Eady J
[2007] EWHC 132 (QB), [2007] BusLR D65
Bailii
Convention on the Means of Prohibiting and Preventing the Illicit Import Export and Transfer of Ownership of Cultural Property adopted at the General Conference of UNESCO on 14 November 1970 3, UNIDROIT Convention on Stolen or Illegally Exported Cultural Objects (Rome 24 June 1995) 5(I)
England and Wales
Citing:
Cited – Macmillan Inc v Bishopsgate Investment Trust Plc and Others (No 3) ChD 1-Jul-1993
Bona fide chargees for value of shares situated in New York and held on trust for Macmillan were able, by application of New York law, to take the shares free of Macmillan’s prior equitable interest of which the chargees had had no notice. Where . .
Cited – Southwark London Borough Council v Mills/Tanner; Baxter v Camden London Borough Council HL 21-Oct-1999
Tenants of council flats with ineffective sound insulation argued that the landlord council was in breach of the covenant for quiet enjoyment in their tenancy agreements.
Held: A landlord’s duty to allow quiet enjoyment does not extend to a . .
Cited – Raffelsen Zentralbank Osterreich Ag v Five Star General Trading Llc and Others CA 1-Mar-2001
An assigned marine insurance policy was subject to a claim. The issue was the ability of an assignee to claim as a claim in contract where the proper law was that under which the contract was made, or a claim of an intangible right to claim against . .
Cited – Neilson v Overseas Projects Corporation of Victoria Ltd 29-Sep-2005
(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 . .
Cited – Winkworth v Christie, Manson and Woods Ltd ChD 1980
The right to sue in conversion at common law is available to a person who is entitled at the time of the conversion to the immediate possession of the goods.
Slade J discussed the applicability of the law of renvoi in an international dispute . .
Cited – In re Duke of Wellington ChD 1947
The court was asked to settle the fate of Spanish estates which had been granted to the first Duke together with a title of nobility. To do this it had to consider the effect of Spanish law: ‘It would be difficult to find a harder task than that . .

Cited by:
Cited – Iran 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 . .

Lists of cited by and citing cases may be incomplete.

International, Torts – Other

Updated: 10 December 2021; Ref: scu.248401

The European Union (Represented By The European Investment Bank) and Another v The Syrian Arab Republic: ComC 2 Feb 2018

State immunity- Service of claim- Applicant sending e-mails instituting claim against foreign state to state’s foreign and commonwealth office- Whether documents validly served

Teare J
[2018] EWHC 181 (Comm), [2018] WLR(D) 330
Bailii, WLRD
State Immunity Act 1978 12(1)
England and Wales

International

Updated: 06 December 2021; Ref: scu.617004

In re B (A Child): CA 20 Jun 2014

Appeal by a child against an order raising issues of general public importance in respect of two matters: first, the powers of the court to compel third parties without parental responsibility (or any other form of power or control over the child) to take steps to secure the return of an abducted child; and, second, the role of non-subject children in such proceedings, the powers of the court in relation to them, and the basis on which orders can properly be made against them having regard to Article 3.1 of the United Nations Convention on the Rights of the Child and Article 8 of the European Convention.

Sir James Munby P FD, Black, Underhill LJJ
[2014] EWCA Civ 843
Bailii
England and Wales

Children, International

Updated: 05 December 2021; Ref: scu.526961

Civil Air Transport Incorporated v Central Air Transport Corporation: PC 28 Jul 1952

(Hong Kong) The parties disputed ownership of 40 aircraft on an airfield at Kai Tak. The object of the suit brought by an American corporation was to recover possession of airplanes in Hong Kong which had been sold by the Nationalist Government of China to the plaintiff corporation’s predecessor in interest in December 1949, before the British recognition of the Communist Government.
Held: The validity of the sale was recognized and the claim of the Communist Government to the property was denied by the court since it was shown that the Communist Government had not taken possession of the property and the subsequent recognition was held not to operate retroactively to extinguish the title of the purchaser. Under the (foreign) act of state doctrine

Viscount Simon
[1952] UKPC 25, [1952] 2 Lloyd’s Rep 259, [1952] 2 All ER 733, [1952] 2 TLR 621, [1953] AC 70
Bailii
England and Wales

International

Updated: 05 December 2021; Ref: scu.445967

Olympic Airlines Sa v ACG Acquisition Xx Llc: CA 17 Jun 2014

Moore-Bick, Rimer LJJ
[2014] EWCA Civ 821
Bailii
England and Wales
Citing:
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Dec-2012
The airline had been placed in liquidation in Greece. The liquidator now appealed against orders for payment of debts and costs to the respondent . .
At Commerial Court – ACG Acquisition Xx Llc v Olympic Airlines Sa ComC 21-Apr-2010
The claimant had granted a lease of an aircraft to the defendants, undertaking in the agreement that the aircrat would be airworthy. It now claimed payment under the agreement, the defendant saying it had not been airworthy and had to be withdrawn . .
See Also – Olympic Airlines Sa v ACG Acquisition XX Llc CA 17-Apr-2013
The parties disputed their mutual obligations under aircraft leasing agreements. The insolvent airline said that in signing to accept the condition of the aircraft on delivery, it had not created an estoppel against itself when the aircraft later . .

Lists of cited by and citing cases may be incomplete.

International, Insolvency

Updated: 04 December 2021; Ref: scu.526604

Re M (A Child): CA 17 Jul 2020

This appeal concerns the exercise by the court of its inherent jurisdiction in respect of a child who is a British national, historically called the parens patriae jurisdiction. The principal question is whether a Deputy High Court Judge, was right to order that a child aged 13, who has been living in Algeria for just over 12 years, should be brought to England so that ‘an assessment can be made in a place of safety as to her best interests and living arrangements’.

Lord Justice Moylan
[2020] EWCA Civ 922, [2020] WLR(D) 419
Bailii, WLRD
England and Wales

Children, International

Updated: 04 December 2021; Ref: scu.652573

Bank St Petersburg OJSC and Another v Arkhangelsky and Others: CA 14 May 2014

The power to grant a world-wide anti enforcement (as opposed to an anti-suit) injunction was available to the courts, though its exercise should be exceptional.

Longmore, Kitchin, McCombe LJJ
[2014] EWCA Civ 593, [2014] 1 WLR 4360, [2014] WLR(D) 215
Bailii, WLRD
England and Wales

International, Litigation Practice

Updated: 03 December 2021; Ref: scu.525615

Germany v Council C-399/12: ECJ 29 Apr 2014

ECJ (Advocate General’s Opinion) International Organizations – Procedure for conclusion of an agreement – Determination of positions to be adopted on behalf of the Union in a forum established by an agreement – Resolutions of the International Organization of Vine and Wine (OIV) Article 218 (9) TFEU – Agreements of the Member States – Legal effect – Analogy

C-399/12, [2014] EUECJ C-399/12
Bailii
European
Cited by:
Opinion – Germany v Council C-399/12 ECJ 7-Oct-2014
EJ Action for annulment – EU external action – Article 218(9) TFEU – Establishing the position to be adopted on behalf of the European Union in a body set up by an international agreement – International . .

Lists of cited by and citing cases may be incomplete.

International, Commercial

Updated: 03 December 2021; Ref: scu.524604

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

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:
Cited – Aitken 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:
Cited – British 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:
Cited – Re 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:
Cited – Snell 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:
Cited – Wight, 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:
Cited – Triquet 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 from – Ayliffe 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 from – Jones 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 . .
Cited – Viveash 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. . .
Cited – Novello v Toogood 29-Apr-1823
The defendant a British born subject was a music master and teacher of Italian, but was also employed in part as a chorister in the chapel of a foreign ambassador. He rented a large house, subletting parts. He resisted distraint on the premises for . .
Cited – Regina v Commissioner of Police for The Metropolis, ex parte Rottman HL 16-May-2002
The defendant had been arrested under an extradition warrant issued under the Act. The police had searched his premises, and found further evidence which was used to support the application for extradition. He challenged the collection and admission . .
Cited – Hutchinson 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 . .
Cited – 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 . .
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 – Taylor 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 . .
Cited – Nulyarimma 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 . .
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – Magdalena 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. . .
Cited – Emperor 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. . .
Cited – Regina 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 . .
Cited – In 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 . .
Cited – Chung 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 . .
Cited – Formica 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 . .
Cited – Re 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. . .
Cited – Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
Cited – Trendtex 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.
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry 1989
. .
Cited – Regina 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 . .
Cited – Case 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. . .
Cited – Swales 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 . .
Cited – Legality 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. . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Regina 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 . .
Cited – Regina 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:
Cited – Gentle and Clarke, Regina (on the Application Of) v Prime Minister and others CA 12-Dec-2006
The claimants appealed refusal of a judicial review of the defendant’s decision to enter into the war in Iraq. The claimants were parents of troops who had died in the war. They said that the legal advice given to the government was incorrect.
Cited – Regina v F CACD 16-Feb-2007
The defendant was charged with offences for having been in possession of a document or record containing information of a kind ‘likely to be useful to a person committing or preparing an act of terrorism’. It was thought he was associated with a . .
Cited – Regina 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 . .
Cited – Gentle, Regina (on the Application of) and Another v The Prime Minister and Another HL 9-Apr-2008
The appellants were mothers of two servicemen who had died whilst on active service in Iraq. They appealed refusal to grant a public inquiry. There had already been coroners inquests. They said that Article 2 had been infringed.
Held: The . .
Cited – A, K, M, Q and G v HM Treasury Admn 24-Apr-2008
The applicants were suspected of terrorist associations. Their bank accounts and similar had been frozen. They challenged the Order in Council under which the orders had been made without an opportunity for parliamentary challenge or approval.
Cited – Norris 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 . .
Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Cited – Regina 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. . .
Cited – Bauer 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 . .
Cited – Coll 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 . .
Cited – Lord Carlile of Berriew QC, and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 12-Nov-2014
The claimant had supported the grant of a visa to a woman in order to speak to members of Parliament who was de facto leader of an Iranian organsation which had in the past supported terrorism and had been proscribed in the UK, but that proscription . .
Cited – Richardson 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 . .
Established – Al 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 . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) SC 29-Jun-2016
Undisclosed Matter inadequate to revisit decision
The claimant sought to have set aside a decision of the House of Lords as to the validity of the 2004 Order, saying that it had been based on a failure by the defendant properly to disclose matters it was under a duty of candour to disclose.
Cited – Roberts 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 . .
Cited – National 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:
Distinguished – Fayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .
Cited – Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .

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:
Distinguished – Rex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .

Cited by:
Cited – Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .

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:
Cited – Mercredi 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 Instance – Re 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 . .
Cited – 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 . .

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 Instance – 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:
Cited – Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Cited – Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs SC 8-Feb-2018
Diplomatic Protection Lost to Public Domain
The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked . .

Lists of cited by and citing cases may be incomplete.

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 Instance – 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 . .
See Also – Re 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 . .
Cited – Jones 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:
Cited – Deutsche 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:
Opinion – Commission 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:
Cited – Mercredi 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 from – Re 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 . .
Cited – 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 . .

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:
Cited – West 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. . .
Cited – C 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 instance – AES 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 . .
Cited – Vale 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 . .
Cited – Cetelem 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 from – AES 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 . .
Cited – Arsanovia 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

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

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

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 Also – Omar 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. . .
Cited – Mamatkulov 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:
Cited – Secretary of State for Foreign and Commonwealth Affairs v Rahmatullah SC 31-Oct-2012
The claimant complained that the UK Armed forces had taken part in his unlawful rendition from Iraq by the US government. He had been detaiined in Iraq and transferred to US Forces. The government became aware that he was to be removed to . .
At ECHR – Othman v Secretary of State for The Home Department SIAC 6-Feb-2012
Application for bail. . .
Judgment – Othman (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 ECHR – Othman 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 ECHR – Othman, 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 ECHR – Othman (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 ECHR – Othman (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 . .
Cited – Kapri 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 . .
Cited – Ismail, 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 . .
Cited – Lord 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 from – Dallah 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 . .
Cited – Svenska 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 . .
Cited – Yukos 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 . .
Cited – Kanoria 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. . .
Distinguished – Watt (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 . .
Cited – Svenska 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 . .
Cited – Paklito 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 . .
Cited – China 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 . .
Cited – Carl 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 . .
Cited – IPCO (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 . .
Cited – Peterson 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. . .
Cited – Peterson 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 Also – Kensington International Ltd v Republic of The Congo ComC 16-Apr-2003
. .
See Also – Kensington 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 Also – Kensington 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 Also – Kensington International Ltd and Another v Republic Of the Congo ComC 26-May-2006
. .
See Also – Kensington 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 Also – Kensington International Ltd v Republic of the Congo ComC 13-Jul-2007
. .

Cited by:
Cited – ETI 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 . .
Cited – Cavell 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 . .
Cited – Phillips 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 . .
Cited – GH, 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 . .
Cited – Secretary 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 . .
Cited – Rustomjee 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 . .
Cited – Zoernsch 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 . .
Cited – Post 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 . .
Cited – Blackburn 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:
Cited – JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry HL 1989
An undisclosed principal will not be permitted to claim to be party to a contract if this is contrary to the terms of the contract itself. Thus the provision in the standard form B contract of the London Metal Exchange ‘this contract is made between . .
Cited – In re McKerr (Northern Ireland) HL 11-Mar-2004
The deceased had been shot by soldiers of the British Army whilst in a car in Northern Ireland. The car was alleged to have ‘run’ a checkpoint. The claimants said the investigation, now 20 years ago, had been inadequate. The claim was brought under . .
Affirmed – Regina v Secretary of State for the Home Department ex parte Brind HL 7-Feb-1991
The Home Secretary had issued directives to the BBC and IBA prohibiting the broadcasting of speech by representatives of proscribed terrorist organisations. The applicant journalists challenged the legality of the directives on the ground that they . .
Affirmed – Regina 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.
Cited – Occidental Exploration and Production Company vRepublic of Ecuador CA 9-Sep-2005
The parties had arbitrated their dispute in London under a bilateral investment treaty between the US and Ecuador. The republic sought to appeal the arbitration. The applicant now appealed an order that the English High Court had jurisdiction to . .
Cited – Belhaj and Another v Straw and Others SC 17-Jan-2017
The claimant alleged complicity by the defendant, (now former) Foreign Secretary, in his mistreatment by the US while held in Libya. He also alleged involvement in his unlawful abduction and removal to Libya, from which had had fled for political . .

Lists of cited by and citing cases may be incomplete.

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 from – AR, 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 . .
Cited – 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 . .
Cited – Re 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 House – In 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 . .
Cited – A (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 . .
Cited – Mercredi 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 – 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 . .
Cited – C 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:
Cited – Re 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 from – Buttes 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:
Cited – Jeyaretnam 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 . .
Cited – Al-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 . .
Cited – Skrine 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