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

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

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

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

Lists of cited by and citing cases may be incomplete.

Insurance, International

Updated: 11 November 2021; Ref: scu.368927

K v K: FD 29 Jul 2016

Costs of enforcement Order

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

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

Children, International, Costs

Updated: 11 November 2021; Ref: scu.569168

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

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

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

Lists of cited by and citing cases may be incomplete.

Financial Services, International

Updated: 11 November 2021; Ref: scu.401791

CH v GLS: FD 28 Nov 2019

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

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

Children, International

Updated: 11 November 2021; Ref: scu.648692

Bank Mellat v HM Treasury: QBD 11 Jun 2010

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

Mitting J
[2010] EWHC 1332 (QB), [2010] WLR (D) 148
Bailii, WLRD
Financial Restrictions (Iran) Order 2009 (SI 2009 No 2725), Counter-Terrorism Act 2008, European Convention on Human Rights 6
England and Wales
Citing:
See Also – Bank Mellat v Her Majesty’s Treasury CA 4-May-2010
The claimants sought damages after being made subject of orders under the 2009 Order. Both parties appealed against an order (partly closed) allowing some but restricting other disclosure and use against the claimants in court of evidence which they . .
Cited – 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 – 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 – 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 – 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 . .
Applied – 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 – Wright and Others, Regina (on the Application of) v Secretary of State for Health and Another HL 21-Jan-2009
The claimants had been provisionally listed as ‘people considered unsuitable to work with vulnerable adults’ which meant that they could no longer work, but they said they were given no effective and speedy opportunity to object to the listing. . .
Cited – Regina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
Cited – BX v Secretary of State for The Home Department CA 4-May-2010
The applicant was subject to a non-derogating control order. The court was asked (1) whether a ‘controlled person’ to whom the Secretary of State has given notice of modification under section 7(2)(d) and (8)(c) 2005 Act, may seek to challenge or . .
Cited – Sporrong and Lonnroth v Sweden ECHR 23-Sep-1982
Balance of Interests in peaceful enjoyment claim
(Plenary Court) The claimants challenged orders expropriating their properties for redevelopment, and the banning of construction pending redevelopment. The orders remained in place for many years.
Held: Article 1 comprises three distinct . .
Cited – James and Others v The United Kingdom ECHR 21-Feb-1986
The claimants challenged the 1967 Act, saying that it deprived them of their property rights when lessees were given the power to purchase the freehold reversion.
Held: Article 1 (P1-1) in substance guarantees the right of property. Allowing a . .
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 – 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 – Bosphorus Hava Yollari Turizm ve Ticaretas v Minister for Transport, Energy and Communications and others ECJ 30-Jul-1996
ECJ (Judgment) Article 8 of Regulation No 990/93 concerning trade between the European Economic Community and the Federal Republic of Yugoslavia, which provides that ‘all vessels, freight vehicles, rolling stock . .

Cited by:
Appeal 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 . .
At first instance – 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 . .
At first instance – 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 . .

Lists of cited by and citing cases may be incomplete.

Banking, International, Human Rights

Updated: 10 November 2021; Ref: scu.416753

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

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

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

International, Crime

Updated: 10 November 2021; Ref: scu.277847

Reyes and Another v Al-Malki and Another: CA 5 Feb 2015

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

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

Cited by:
At CA – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .

Lists of cited by and citing cases may be incomplete.

Employment, International, Human Rights, News

Updated: 10 November 2021; Ref: scu.542264

Hurtado v California: 1884

Common Law Not Written in Stone

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

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

Lists of cited by and citing cases may be incomplete.

Constitutional, International

Leading Case

Updated: 09 November 2021; Ref: scu.235926

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

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

Toulson L, Arden, Kitchin LJJ
[2014] EWCA Civ 20
Bailii
England and Wales
Citing:
Cited – Nouvion v Freeman HL 1889
A judgment of a court of competent jurisdiction may be final and binding, even though a right of appeal to a superior court remains open.
Lord Herschell stated on the question of finality or conclusiveness of a foreign judgment: ‘in order to . .
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 – 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 – Johnson v Gore Wood and Co HL 14-Dec-2000
Shareholder May Sue for Additional Personal Losses
A company brought a claim of negligence against its solicitors, and, after that claim was settled, the company’s owner brought a separate claim in respect of the same subject-matter.
Held: It need not be an abuse of the court for a shareholder . .
Cited – Ryabykh v Russia ECHR 24-Jul-2003
The entrenched rights of a litigant would be illusory if a judicial decision by an independent body which had become final and binding could thereafter be quashed by a higher court on the application of a state official. A departure from that . .

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Updated: 09 November 2021; Ref: scu.519786

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

hsen_paCoP201506

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

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

Lists of cited by and citing cases may be incomplete.

International, Children, Health, Human Rights

Updated: 09 November 2021; Ref: scu.548027

AB v CD: FD 21 Nov 2019

Final hearing in the father’s application for the return under the Hague Convention of his daughter Y to Belgium.

Mrs C Ambrose
[2019] EWHC 3543 (Fam)
Bailii
England and Wales

Children, International

Updated: 09 November 2021; Ref: scu.648688

AB v XY: FD 18 Apr 2019

Judgment on application for the summary return of a child Z, to Malta pursuant to the 1980 Convention,

Mr Gupta QC
[2019] EWHC 3098 (Fam)
Bailii
England and Wales

Children, International

Updated: 09 November 2021; Ref: scu.648636

In re O (Children): CA 16 Feb 2011

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

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

Lists of cited by and citing cases may be incomplete.

Children, International

Updated: 09 November 2021; Ref: scu.429629

Stratton Oakmont Inc v Prodigy Services Co: 1995

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

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

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

Lists of cited by and citing cases may be incomplete.

Defamation

Leading Case

Updated: 09 November 2021; Ref: scu.277104

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

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

Richards LJ, Silber J
[2008] EWHC 3098 (Admin)
Bailii
European Convention on Human Rights 1 13
England and Wales
Citing:
Cited – Soering v The United Kingdom ECHR 7-Jul-1989
(Plenary Court) The applicant was held in prison in the UK, pending extradition to the US to face allegations of murder, for which he faced the risk of the death sentence, which would be unlawful in the UK. If extradited, a representation would be . .
Cited – Drozd and Janousek v France and Spain ECHR 26-Jun-1992
The applicants complained of the unfairness of their trial in Andorra (which the Court held it had no jurisdiction to investigate) and of their detention in France, which was not found to violate article 5.
Held: Member states are obliged to . .
Cited – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .
Cited – EM (Lebanon) v Secretary of State for the Home Department HL 22-Oct-2008
The claimant challenged the respondent’s decision to order the return of herself and her son to Lebanon.
Held: The test for whether a claimant’s rights would be infringed to such an extent as to prevent their return home was a strict one, but . .
Cited – Al-Jedda, Regina (on the Application of) v Secretary of State for Defence (JUSTICE intervening) HL 12-Dec-2007
The appellant who had dual Iraqi and British nationality complained of his detention by British troops in Iraq. He was not charged with any offence, but was detained on the ground that his internment is necessary for imperative reasons of security . .
Cited – Secretary of State for Defence v Al-Skeini and others (The Redress Trust Intervening) HL 13-Jun-2007
Complaints were made as to the deaths of six Iraqi civilians which were the result of actions by a member or members of the British armed forces in Basra. One of them, Mr Baha Mousa, had died as a result of severe maltreatment in a prison occupied . .
Applied – Gentilhomme, Schaff-Benhadji et Zerouki v France ECHR 14-May-2002
(French Text) In 1962 France and Algeria had signed a statement of principle on cultural co-operation which provided inter alia for French children residing in Algeria, including those having dual French and Algerian nationality under French law, to . .
Cited – Regina on the Application of B and others v Secretary of State for the Foreign and Commonwealth Office CA 18-Oct-2004
The applicant children had been detained in immigration camps in Australia. They escaped and sought refuge in the British High Commission in Melbourne and claimed diplomatic asylum. They claimed in damages after being returned to the authorities in . .
Cited – Regina v Special Adjudicator ex parte Ullah; Regina v Secretary of State for the Home Department HL 17-Jun-2004
The applicants had had their requests for asylum refused. They complained that if they were removed from the UK, their article 3 rights would be infringed. If they were returned to Pakistan or Vietnam they would be persecuted for their religious . .
Cited – Saadi v Italy (United Kingdom intervening) ECHR 28-Feb-2008
(Grand Chamber) When considering the appropriateness of a deportation order to a country with which the deporting country had a memorandum of understanding that the destination country would not torture the deportee, a court must look beyond the . .
Cited – Othman (Abu Qatada) (Jordan) v Secretary of State for the Home Department CA 9-Apr-2008
The claimant appealed an order for his deportation back to Jordan, saying that if returned there was a real risk that he would face a trial based on evidence obtained by torture.
Held: The appeal succeeded. A foreign national could not be . .
See Also – Al-Saadoon and Others, Regina (on the Application of) v Secretary of State for Defence Admn 29-Aug-2008
The applicants complained of their continued detention in Iraq in a UK internment facility as an infringement of their human rights. . .

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

Lists of cited by and citing cases may be incomplete.

Armed Forces, International, Human Rights, Crime

Updated: 09 November 2021; Ref: scu.278991

Cox v Ergo Versicherung Ag: CA 25 Jun 2012

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

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

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

Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury, International

Updated: 09 November 2021; Ref: scu.460854

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

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

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

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

Lists of cited by and citing cases may be incomplete.

European, International, Criminal Practice

Updated: 09 November 2021; Ref: scu.267373

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

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

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

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice

Leading Case

Updated: 02 November 2021; Ref: scu.540458

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, International

Leading Case

Updated: 02 November 2021; Ref: scu.266540

Salomon v Customs and Excise Commissioners: CA 1966

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

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

Lists of cited by and citing cases may be incomplete.

International, Litigation Practice, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.248851

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

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

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

Cited by:
Applied – In Re M (A Minor) (Habitual Residence) CA 3-Jan-1996
An habitual residence dispute is a dispute on a matter of fact not of law. It cannot be settled by the choice of the parents. A child cannot acquire habitual residence in a country without actually being physically present in that country. . .
Cited – Nessa v Chief Adjudication Officer HL 3-Nov-1999
Mrs. Nessa arrived at Heathrow aged 55 having lived all her life in Bangladesh. Her husband, Mr. Mobarak Ali, had lived in the United Kingdom from 1962 until he died in 1975 and when she arrived here, Mrs. Nessa had a right of abode. She hoped to . .
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 – In re K (Children) CA 27-Jul-2005
The mother appealed an order that her younger son be placed in care and freed for adoption. Hers and her children’s lives had been chaotic. Nevertheless she complained that she had not been given the opportunity to demonstrate her ability to care . .
Cited – Collins v Secretary of State for Work and Pensions CA 4-Apr-2006
The claimant had dual Irish and US nationality. He therefore also was a citizen of the EU. He complained that the British rules against payment of job seekers’ allowance were discriminatory. The matter had already been to the ECJ.
Held: The . .
Cited – W v F FD 4-Apr-2007
Application by father for summary return of son to the USA. The mother said that the father had consented to his removal and acquiesced in his stay here.
Held: The mother had a settled intention to remain in the US when she first arrived, but . .
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 – 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 . .
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 – In Re S (A Minor) (Abduction: European Convention) HL 30-Jul-1997
An illegitimate child’s habitual country of residence is determined at the date of death of his mother when he was to be removed following the death. Where the mother of an illegitimate child who is resident in England dies and the grandmother takes . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 02 November 2021; Ref: scu.182951

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

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

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

Lists of cited by and citing cases may be incomplete.

Trusts, International, Torts – Other

Updated: 02 November 2021; Ref: scu.537221

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

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

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

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

Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Leading Case

Updated: 02 November 2021; Ref: scu.142991

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

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

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

International, European

Leading Case

Updated: 02 November 2021; Ref: scu.161977

Upjohn Company v United States: 13 Jan 1981

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

Justice Rehnqist
[1981] USSC 7, 449 U.S. 383, 101 S.Ct. 677, 66 L.Ed.2d 584
Worldlii
Cited by:
Cited – Prudential Plc and Another, Regina (on The Application of) v Special Commissioner of Income Tax and Another SC 23-Jan-2013
The appellants resisted disclosure to the revenue of advice it had received. It claimed legal advice privilege (LAP), though the advice was from its accountants.
Held: (Lords Sumption and Clarke dissenting) LAP applies to all communications . .

Lists of cited by and citing cases may be incomplete.

International, Legal Professions

Updated: 02 November 2021; Ref: scu.470876

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, International, Commercial

Updated: 02 November 2021; Ref: scu.427223

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Insolvency, International

Leading Case

Updated: 02 November 2021; Ref: scu.465185

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

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

Lord Neuberger, President, Lord Mance, Lord Clarke, Lord Sumption, Lord Hodge
[2014] UKSC 33, [2014] 3 WLR 1, [2014] WLR(D) 263, UKSC 2012/0234, [2014] PTSR 907, [2014] WTLR 1729, [2014] 3 All ER 243
Bailii, Bailii Summary, WLRD, SC Summary, SC
England and Wales
Citing:
Appeal from – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .
Cited – Craigdallie v Aikman PC 14-Jun-2013
A chapel was acquired with the subscriptions of a congregation which seceded from the Church of Scotland in 1737 and subsequently split over whether a magistrate might suppress heresy. Each of the rival groups claimed that the chapel belonged to . .
Cited – In re Orphan Working School and Alexandra Orphanage’s Contract 1912
An established trust had collected subscriptions over many years, ptting those subscriptions wth other funds derived from the sale of one school property for the purchase of another. That property in turn came to be sold, and questions arose as to . .
Cited – Attorney-General v Mathieson CA 1907
The Rev John Wilkinson, ran charities in Stoke Newington in London, including ‘the Mildmay Mission to the Jews’. He was given received andpound;1350 from ‘a lady’ locally who suggested that the money be used for a convalescent home. He pointed out . .
Cited – Underhill v Hernandez 29-Nov-1897
(US Supreme Court) Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill . .
Cited – 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 – Jeeves v Imperial Foods Ltd, Pension Scheme ChD 27-Jan-1986
Walton J explained that there may be many ‘occasions in law in which a fund is held on trust, but at the particular point there is no final definitive trust deed’. He went on to say that ‘it may very well be that . . a person who had contributed to . .
Cited – Prebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
Cited – Hamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
Cited – Campaign for Nuclear Disarmament (CND) v Prime Minister and others Admn 17-Dec-2002
CND sought an advisory declaration as to the meaning of UN Security Council resolution 1441, which had given Iraq ‘a final opportunity to comply with its disarmament obligations’ and whether the resolution authorised states to take military action . .
Cited – Bruker v Marcovitz 14-Dec-2007
Canlii (Supreme Court of Canada) Contracts – Validity – Breach – Agreement with religious aspect – Husband refusing to provide wife with Jewish religious divorce after civil divorce despite agreement to do so – . .
Cited – Al-Haq, Regina (On the Application of) v Secretary Of State for Foreign and Commonwealth Affairs Admn 27-Jul-2009
The claimant sought a declaration that the UK was in breach of its international obligations. The claimant was a non-governmental human rights organisation based in Palestine. The respondent argued that the issue was beyond the court’s jurisdiction, . .
Cited – Barker v O’Gorman ChD 1971
The plaintiff sought to challenge to a proposed union between the Methodist Church and the Church of England on the ground that the Methodist Conference had no power to vary the doctrinal standards of the former church. . .
Cited – Regina (on the application of Abassi and Another) v Secretary of State for Foreign and Commonwealth Affairs and Another CA 6-Nov-2002
A British national had been captured in Afghanistan, and was being held without remedy by US forces. His family sought an order requiring the respondent to take greater steps to secure his release or provide other assistance.
Held: Such an . .
Cited – Syndicat Northcrest v Amselem 30-Jun-2004
Canlii (Supreme Court of Canada) Civil rights – Freedom of religion — Definition of freedom of religion — Exercise of religious freedoms — Orthodox Jews setting up succahs in pursuit of their religious beliefs . .
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 – Long v Lord Bishop of Cape Town PC 13-Feb-1863
After constitutional government had been granted to a colony, the Crown, by letters patent appointing a bishop, could no longer grant any coercive ecclesiastical jurisdiction to him. The church could be nothing more than a voluntary association.
CA Costs – Khaira and Others v Shergill and Others CA 17-Jul-2012
The parties disputed the trusteeship and governance of two Gurdwaras (Sikh temples). The defendants now applied for the claim to be struck out on the basis that the differences were as to Sikh doctrines and practice and as such were unjusticiable. . .

Cited by:
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 . .
At SC – Khaira and Others v Shergill and Others ChD 23-Mar-2016
. .
At SC – Shergill and Others v Khaira and Others ChD 3-Mar-2017
The court considered the identification of one of the ancient Sikh gurus in order to ascertain the rights of current gurdwaras . .
At SC – Khaira and Others v Shergill and Others CA 27-Oct-2017
‘This appeal raises technical but important issues on the entitlement of a party who is awarded the costs of an interlocutory appeal to an immediate assessment of those costs. Two issues of general application arise. First, is the party entitled to . .
Cited – Miller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .

Lists of cited by and citing cases may be incomplete.

Trusts, International

Leading Case

Updated: 02 November 2021; Ref: scu.526418

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Immigration, International

Updated: 01 November 2021; Ref: scu.403312

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

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

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

Transport, International, Damages

Updated: 02 November 2021; Ref: scu.560238

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

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

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

Employment, International

Updated: 02 November 2021; Ref: scu.523367

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

Release date for prisoner convicted abroad and repatriated.

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

Lists of cited by and citing cases may be incomplete.

Criminal Sentencing, International, Human Rights

Updated: 01 November 2021; Ref: scu.516541

Al-Juffali v Estrada: CA 22 Mar 2016

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

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

Family, International

Updated: 01 November 2021; Ref: scu.561201

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

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

Richards, Black, Vos LJJ
[2014] EWCA Civ 1101, [2014] WLR(D) 343, [2015] 1 FLR 1132, [2014] 3 FCR 405, [2015] 1 WLR 863, [2014] Fam Law 1523
Bailii, WLRD
England and Wales
Cited by:
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 . .

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.535399

NML Capital Ltd v Argentina: SC 6 Jul 2011

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

Lord Phillips, President Lord Walker Lord Mance Lord Collins Lord Clarke
[2011] UKSC 31, UKSC 2010/0040
Bailii, Bailii Summary, SC Summary, SC
Civil Jurisdiction and Judgments Act 1982, State Immunity Act 1978, Civil Procedure Rules 6.20(9)
England and Wales
Citing:
Appeal From – 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 . .
At First Instance – 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 – The Parlement Belge CA 1879
An action in rem indirectly impleaded a sovereign who was the owner of the vessel served because his property was affected by the judgment of the court. An unincorporated treaty cannot change the law of the land and, ‘the immunity of the sovereign . .
Cited – Mighell v Sultan of Johore CA 1-Dec-1893
In 1885 the Sultan of Johore came to England, and according to the plaintiff, Miss Mighell, took the name Albert Baker and promised to marry her.
Held: The Sultan was entitled to immunity even though up to the time of suit ‘he has perfectly . .
Cited – Duff Development Co v Kelantan Government HL 1924
Lord Sumner suggested that in the absence of a clear statement of the position from the Government, the court might be entitled to decide whether a defendat had the benefit of state immunity for itself on the basis of the evidence before it.
A . .
Cited – Compania Naviera Vascongado v Steamship ‘Cristina’ HL 1938
A state-owned ship that was used for public purposes could not be made the subject of proceedings in rem. Lord Atkin described the absolute immunity of a sovereign of a foreign state within this jurisdiction: ‘The foundation for the application to . .
Cited – Kahan v Pakistan Federation 1951
State immunity can only be lost by a submission to the jurisdiction when it was invoked, and not by an earlier act. . .
Cited – Rahimtoola v Nizam of Hyderabad CA 1957
The court considered the doctrine of state immunity. Lord Denning MR said: ‘If the dispute brings into question, for instance, the legislative or international transactions of a foreign government, or the policy of its executive, the court should . .
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 – Thai-Europe Tapioca Service Ltd v Government of Pakistan, Directorate of Agricultural Supplies 1975
Lord Denning said: ‘a foreign sovereign has no immunity when it enters into a commercial transaction with a trader here and a dispute arises which is properly within the territorial jurisdiction of our courts. If a foreign government incorporates a . .
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 . .
Cited – Svenska Petroleum Exploration Ab v Lithuania and Another (No 2) ComC 4-Nov-2005
The court was asked whether a claim to enforce an arbitration award constituted ‘proceedings relating to’ the transaction that gave rise to the award for the purposes of section 3(1)(a).
Held: It did not. . .
Approved – 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 . .
To be confined to its facts – Parker v Schuller CA 1901
The plaintiffs had obtained leave to serve a writ out of the jurisdiction under Order 11, r 1(e) of the RSC on the ground that the claim was for breach of a contract within the jurisdiction. The breach alleged was of a CIF contract, and the . .
Cited – Holland v Leslie CA 1894
Leave to serve out of the jurisdiction had been granted in relation to a bill of exchange which had been erroneously described in the statement of claim indorsed on the writ.
Held: The Court upheld the order giving leave to amend the writ.
Cited – Metall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
Cited – Re Jogia (A Bankrupt) 1988
Application was made for leave to serve proceedings out of the jurisdiction in a claim for money had and received in connection with payments made to the defendant after a receiving order.
Held: A plaintiff who has been given permission to . .
Cited – White and others v Vandervell Trustees Ltd. (No. 2), Re Vandervell’s Trusts (No 2) CA 3-Jul-1974
Lord Denning MR described the modern practice concerning pleadings: ‘It is sufficient for the pleader to state the material facts. He need not state the legal result. If, for convenience, he does so, he is not bound by, or limited to, what he has . .
Cited – Waterhouse v Reid 1938
The court has no power to make orders against persons outside its territorial jurisdiction unless authorised by statute and that there is no inherent extra-territorial jurisdiction. . .
Cited – Beck v Value Capital Ltd (No 2) 1974
The plaintiffs had obtained leave to serve proceedings out of the jurisdiction. They then sought to add a claim and argued that once an additional cause of action was shown to be generically within the scope of Order 11, that was an end of the . .
Cited – Bastone and Firminger Ltd v Nasima Enterprises (Nigeria) Ltd and Others ComC 20-May-1996
Banking – collecting banker – remitting banker – privity of contract Banking – remitting bank – right to damages – other than indemnity by customer Conflict of laws – RSC Order 11 r.1(1)(f) – ‘damage sustained within the jurisdiction’ – meaning . .
Cited – Donohue v Armco Inc and others HL 13-Dec-2001
The appellant had sought injunctions against the respondent US companies to restrain their commencing proceedings in the US against him. The parties had negotiated for the purchase of the run-off liabilities of a defunct insurance company. . .
Cited – Masri v Consolidated Contractors International Company Sal and Another (No 3) CA 6-Jun-2008
The court was asked whether the English court has jurisdiction following judgment to grant an anti-suit injunction against foreign judgment debtors (one of whom has a domicile in a Brussels I Regulation State) restraining them from pursuing . .
Cited – Twycross v Dreyfus CA 1877
State immunity is not to be got around by suing the employees of the state. Here, the only possible case was against the state itself.
Sir George Jessel MR said: ‘the municipal law of this country does not enable the tribunals of this country . .
Cited – UGS Finance Ltd v National Mortgage Bank of Greece CA 1964
Pearson LJ said: ‘As to the question of ‘fundamental breach’, there is a rule of construction that normally an exemption or exclusion clause or similar provision in the contract should be construed as not applying to a situation created by a . .
Cited – AK Investment CJSC v Kyrgyz Mobil Tel Ltd and Others PC 10-Mar-2011
Developing Law – Summary Procedures Very Limited
(Isle of Man) (‘Altimo’) The parties were all based in Kyrgyzstan, but the claimant sought a remedy in the Isle of Man which would be unavailable in Kyrgyzstan.
Held: Lord Collins said: ‘The general rule is that it is not normally appropriate . .
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 – Donegal International Ltd v Zambia and Another ComC 15-Feb-2007
Claim under settlement agreement. . .
Mentioned – Colt Telecom Group Plc, In the Matter of the Insolvency Act 1986 ChD 20-Dec-2002
. .
Mentioned – British Wagon Co Ltd v Gray 1896
. .
Cited – National Bank of Greece SA v Westminster Bank Executor and Trustee Co (Channel Islands) Ltd 1971
. .
Cited – Yemshaw v London Borough of Hounslow SC 26-Jan-2011
The appellant sought housing after leaving her home to escape domestic violence. The violence was short of physical violence, and the authority had denied a duty to rehouse her. She said that the term ‘domestic violence’ in the Act was not intended . .
Cited – Highberry Limited, Highberry Llc v Colt Telecom Group Plc; in Re Colt Telecom Group plc (No 1) ChD 25-Nov-2002
Application for disclosure of documents, the provision of information, and directions for cross-examination in an unusual petition for an administration order. No-action clauses have been the subject of discussion in the International Court of . .
Cited – Fitzpatrick v Sterling Housing Association Ltd HL 28-Oct-1999
Same Sex Paartner to Inherit as Family Member
The claimant had lived with the original tenant in a stable and long standing homosexual relationship at the deceased’s flat. After the tenant’s death he sought a statutory tenancy as a spouse of the deceased. The Act had been extended to include as . .
Cited – Macaulay (Tweeds) Ltd v Independent Harris Tweed Producers Ltd 1961
The court considered an allegation of non-disclosure in the case of an application to serve proceedings abroad: ‘If the judge is satisfied that there was no intention to deceive and the mis-statement is not grossly negligent, he may think it better . .
Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Cited – Playa Larga (Owners of Cargo Lately Laden on Board) v I Congresso del Partido (Owners) HL 1983
The concept of absolute immunity for a Sovereign adopts a theory of restrictive immunity in so far as it concerns the activities of a State engaging in trade: (Lord Wilberforce) ‘It was argued by the [appellants] that even if the Republic of Cuba . .
Cited – Kuwait Oil Co (KSC) v Idemitsu Tankers KK, The Hida Maru CA 1981
. .
Cited – Helby v Rafferty CA 1979
The court declined to hold that a man who had lived with a woman tenant for five years before her death were part of the same family because they had deliberately opted to retain their formal independence and they had not been recognised as being . .

Lists of cited by and citing cases may be incomplete.

International, Jurisdiction

Updated: 01 November 2021; Ref: scu.441502

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

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

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

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

Lists of cited by and citing cases may be incomplete.

International, Taxes Management, Stamp Duty

Leading Case

Updated: 01 November 2021; Ref: scu.220504

Quazi v Quazi: HL 1979

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

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

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Family, International

Leading Case

Updated: 01 November 2021; Ref: scu.181065

Ministry of Defence v Iraqi Civilians: SC 12 May 2016

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

Lord Neuberger, President, Lady Hale, Deputy President, Lord Mance, Lord Sumption, Lord Reed
[2016] UKSC 25, [2016] 1 WLR 2001, [2016] WLR(D) 261, UKSC 2015/0126
Bailii, Bailii Summary, WLRD, SC, SC Summary
Private International Law (Miscellaneous Provisions) Act 1995, Foreign Limitation Periods Act 1984
England and Wales
Citing:
At QBD – 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 . .
Appeal from CA – 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’ . .

Lists of cited by and citing cases may be incomplete.

International, Limitation

Updated: 01 November 2021; Ref: scu.563387

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

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

Nicolas Bratza, P
39630/09 – HEJUD, [2012] ECHR 2067, 34 BHRC 313, (2013) 57 EHRR 25
Bailii
European Convention on Human Rights
Human Rights
Cited by:
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 – Commissioner of Police of The Metropolis v DSD and Another SC 21-Feb-2018
Two claimants had each been sexually assaulted by a later notorious, multiple rapist. Each had made complaints to police about their assaults but said that no effective steps had been taken to investigate the serious complaints.
Held: The . .
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 . .
Cited – Reprieve and Others, Regina (on The Application of) v The Prime Minister Admn 30-Jun-2020
Standing may not be enough for JR
The claimants sought judicial review of the defendant’s decision that it was no longer necessary to establish a public inquiry to investigate allegations of involvement of the United Kingdom intelligence services in torture, mistreatment and . .

Lists of cited by and citing cases may be incomplete.

Human Rights, International

Leading Case

Updated: 01 November 2021; Ref: scu.467121

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

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

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

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

Lists of cited by and citing cases may be incomplete.

Defamation, International, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.179879

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

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

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

Lists of cited by and citing cases may be incomplete.

Judicial Review, International, Information

Updated: 01 November 2021; Ref: scu.278248

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

Rights of Custody under Convention

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

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

Lists of cited by and citing cases may be incomplete.

Children, International

Leading Case

Updated: 01 November 2021; Ref: scu.526194

Anson v Revenue and Customs: SC 1 Jul 2015

Interpretation of Double Taxation Agreements

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

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

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

Lists of cited by and citing cases may be incomplete.

Income Tax, International

Leading Case

Updated: 01 November 2021; Ref: scu.549903

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

art218ECJ1410

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

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

European, Children, International

Updated: 01 November 2021; Ref: scu.537603

Government of India v Taylor: HL 1955

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

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

Cited by:
Cited – QRS 1 APS and others v Frandsen CA 21-May-1999
The appellants were all Danish companies put into liquidation for asset stripping in contravention of Danish law. The respondent was resident in the UK and had owned them. The Danish tax authorities issued tax demands and the liquidators now sought . .
Approved – In re State of Norway’s application (Nos 1 and 2) HL 1989
The House considered an application by a foreign state seeking assistance in obtaining evidence here to be used in enforcing its own revenue laws at home.
Held: Rule 3 of the Convention encapsulated a ‘fundamental rule of English Law’, but did . .
Cited – Williams and Humbert Ltd v W and H Trade Marks (Jersey) Ltd HL 1986
There had been an expropriation by Spanish decrees of shares in a Spanish company whose English subsidiary had rights in trade marks which it had sold to a Jersey company. The Spanish and English companies sought certain relief in relation to the . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – Mbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
Cited – 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 . .
Cited – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .
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.

Taxes Management, International, Insolvency

Leading Case

Updated: 01 November 2021; Ref: scu.225456

Henderson v Novo Banco SA: ECJ 2 Mar 2017

Defendant to show service failure was unfair

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

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

Litigation Practice, International

Updated: 01 November 2021; Ref: scu.579677

Agbaje v Akinnoye-Agbaje: SC 10 Mar 2010

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

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

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

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 01 November 2021; Ref: scu.402570

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

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

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

Lists of cited by and citing cases may be incomplete.

Prisons, International, Human Rights

Updated: 01 November 2021; Ref: scu.278831

Hardwick Game Farm v Suffolk Agricultural Poultry Producers Association: CA 1966

Feedstuff was sold by some merchants to a farmer. It was found to be defective. The farmer sued the merchants. The merchants brought in as third party the persons from whom they had purchased the feeding-stuff; they in their turn brought in their suppliers, and there was a long list of many parties brought in right down the chain. As between two of these suppliers a point arose as to whether a term that the buyer under the contract took the responsibility of any latent defects was a term which had been imported into the contract in question by reason of the course of dealing between those parties. There had been more than a hundred prior dealings between the parties, of a similar character, over a period of three years, in which an oral contract for the sale of goods had been followed by a confirmatory ‘Sold-Note’, sent the next day, by the seller to the buyer containing, on the reverse, ‘Conditions of Sale’. The buyer’s agent knew that there were conditions on the reverse, but had never read them.
Held:
Diplock LJ said: ‘Where . . the parties have not agreed to embody their contract in a written document but have entered into an oral contract with the intention of thereby creating legal rights and liabilities and it is sought to rely upon a term contained in some written document as modifying the respective rights and liabilities which would arise by implication of law from the nature of the contract, the only question is whether each party has led the other reasonably to believe that he intended that the rights and liabilities towards one another which would otherwise arise by implication of law from the nature of the contract, namely, a contract for the sale of goods, should be modified in the manner specified in the written document.’
Diplock LJ discussed the applicable lex situs: ‘ . . The proper law governing the transfer of corporeal moveable property is the lex situs. A contract made in England and governed by English law for the sale of specific goods situated in Germany, although it would be effective to pass the property in the goods at the moment the contract was made if the goods were situate in England, would not have that effect if under German law (as I believe to be the case) delivery of the goods was required in order to transfer the property in them.’

Diplock LJ
[1966] 1 WLR 287
England and Wales
Cited by:
Appeal from – Henry Kendall and Sons v William Lillico and Sons Ltd HL 8-May-1968
The plaintiff had purchased quantities of turkey feed from the defendant. It contained a poisonous element, spores of a fungus aspergillus flavus, which killed its flock. The House was asked as to the effect of section 14 of the 1893 Act on the . .
Cited – Hollier v Rambler Motors (AMC) Ltd CA 19-Nov-1971
The plaintiff left his car with the defendant garage for repair. Whilst there it was substantially damaged by fire. The defendant sought to rely upon their terms which would negative liability, saying that the terms had been incorporated by . .

Lists of cited by and citing cases may be incomplete.

Contract, International

Leading Case

Updated: 01 November 2021; Ref: scu.562089

Medvedyev And Others v France: ECHR 29 Mar 2010

(Grand Chamber) A Cambodian vessel, The Winner, trafficked drugs on the high seas (Cape Verde). It was detected and boarded by the French authorities, detaining the crew on board and took them on the vessel to France for trial. France was, but Cambodia was not, party to the relevant international drug trafficking conventions, which did not in the circumstances authorise the arrest by France of the Cambodian vessel. Nevertheless, Cambodia had given France specific ad hoc authorisation ‘to intercept, inspect and take legal action against the ship’. The crew complained that they were not within the jurisdiction of the French Courts.
Held: (Majority) They were within the jurisdiction of France for the purposes of article 1, France ‘having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France (contrast Bankovic, cited above)’. As to Bankovic, the Court noted that it was ‘only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of article 1 . . this excluded situations, however, where – as in the Bankovic case – what was at issue was an instantaneous extraterritorial act, as the provisions of article 1 did not admit of a ’cause-and-effect’ notion of ‘jurisdiction’.’
The detention of the crew was nevertheless unjustified. Although international as well as domestic law was capable of shaping a ‘procedure prescribed by law’ within article 5.1, Cambodia’s ad hoc authorisation did not meet the requirements under article 5.1 of ‘clearly defined’ and ‘foreseeable’ law. The Court allowed the possibility of a purely factual (albeit unlawfully exercised) concept of jurisdiction under article 1. Dissenting, seven judges, said that article 1 applied: ‘the Winner – with the agreement of the flag state – was undeniably within the jurisdiction of France for the purposes of article 1.’. That state B may authorise state A to exercise jurisdiction which would otherwise belong to state B for the purposes of article 1 was consistent with the principles in Bankovic.
The court awarded 5,000 Euros in damages.

(2010) 51 EHRR 39, 3394/03, [2010] ECHR 384
Bailii
European Convention on Human Rights 1 5.1
Human Rights
Citing:
Explained – Bankovic v Belgium ECHR 12-Dec-2001
(Grand Chamber) Air strikes were carried out by NATO forces against radio and television facilities in Belgrade on 23 April 1999. The claims of five of the applicants arose out of the deaths of relatives in this raid. The sixth claimed on his own . .

Cited by:
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Lumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
Cited – Assange v The Swedish Prosecution Authority SC 30-May-2012
The defendant sought to resist his extradition under a European Arrest Warrant to Sweden to face charges of sexual assaults. He said that the prosecutor who sought the extradition was not a judicial authority within the Framework Decision.
Cited – Faulkner, Regina (on The Application of) v Secretary of State for Justice and Another SC 1-May-2013
The applicants had each been given a life sentence, but having served the minimum term had been due to have the continued detention reviewed to establish whether or not continued detention was necessary for the protection of the pblic. It had not . .

Lists of cited by and citing cases may be incomplete.

Human Rights, International, Crime, Transport

Leading Case

Updated: 31 October 2021; Ref: scu.406700

Liaw v Lee (Recognition of Divorce): FD 3 Jun 2015

The applicant sought that the decrees nisi and absolute of divorce issued by the High Court of Malaya at Shah Alam in favour of the respondent husband be refused recognition in England and Wales.
Held: The application was granted: ‘the husband and his solicitor engaged in sharp practice in obtaining the divorce in Malaysia. A petition was filed which was knowingly false. The case that the wife had effectively disappeared and that there was no alternative means of effecting service on her was again knowingly false. The reasons for expediting Decree Absolute were spurious and again represent a deliberate misleading of the Malaysian Court: the true reason was to prevent the wife from applying in the waiting period to set aside the decree nisi.’
The Court examined the underused Council Regulation finding that it was given a discretion. There were balancing interests: ‘Militating against refusal is the fact that it is undesirable to have two different decrees absolute in different places in relation to the same marriage. A decree absolute is a matter of status and it is undesirable that the parties should have inconsistent decisions as to when their marriage was finally ended.’ and ‘ to decline to refuse recognition in this case would be grossly unjust and would in effect reward dishonesty and sharp practice. It would send out a signal that conduct such as I have described is tolerable.’
The wife was entitled to her decree Nisi, and the court and judge in Malaysia should notified of the decision.

Mostyn J
[2015] EWHC 1462 (Fam)
Bailii
Family Law Act 1986 51(3)(a), Council Regulation (EC) No 2201/2003 22(b)
England and Wales
Citing:
Cited – Rex v Sussex Justices, Ex parte McCarthy KBD 9-Nov-1923
Clerk wrongly retired with Justices
There had been a prosecution before the lay magistrates for dangerous driving. Unknown to the defendant and his solicitors, the Clerk to the Justices was a member of the firm of solicitors acting in a civil claim against the defendant arising out of . .
Cited – Duhur-Johnson v Duhur-Johnson FD 3-May-2005
The husband sought to stay divorce proceedings commenced here by his wife, saying that they had already been divorced in Nigeria. The wife said the Nigerian proceedings should not be recognised in English law.
Held: The cases established: 1) . .
Cited – Ivleva v Yates FD 4-Mar-2014
By an application Mrs Ivleva (formerly Yates) sought (i) recognition in this jurisdiction of a divorce granted in Ukraine in respect of her marriage to Mr Yates and (ii) the dismissal of divorce proceedings brought in this jurisdiction by Mr Yates. . .
Cited – Olafisoye v Olafisoye FD 28-Jul-2010
The court was asked to consider the recognition here of a foreign divorce.
Held: Holman J said: ‘I observe and stress at the outset the following matters. First, in this case, and probably in all such cases, the issue is very fact specific and . .
Cited – Golubovich v Golubovich CA 30-Mar-2011
The court considered an application under 51(3)(c) of the 1986 Act to refuse to recognise a foreign decree of divorce.
Held: The appeal was allowed against the non-recognition of a Russian divorce that followed proceedings between Russian . .

Lists of cited by and citing cases may be incomplete.

Family, International

Updated: 31 October 2021; Ref: scu.547552

Shipowners’ Mutual Protection and Indemnity Association (Luxembourg) v Containerships Denizcilik Nakliyat Ve Ticaret As (‘Yusuf Cepnioglu’): CA 20 Apr 2016

The court had to ascertain the juridical nature of a foreign statute which gives a victim the right to sue a defendant’s insurer directly without first suing the insured.

Moore-Bick VP CA, Longmore, McFarlane LJJ
[2016] EWCA Civ 386
Bailii
England and Wales

Insurance, International

Updated: 31 October 2021; Ref: scu.562452

Ben Nevis (Holdings) Ltd and Another v Revenue and Customs: CA 23 May 2013

The company owed very substantial arrears of tax in South Africa. Assets had been transferred to a bank account in London in the name of an associated company. The double taxation treaty with South Africa now provided for mutlual assistance and the Revenue had sought access to the account for this purpose. The company appealed.
Jackson, Lloyd Jones, Dloyd LJJ
[2013] EWCA Civ 578
Bailii
England and Wales
Citing:
Cited – Inland Revenue Commissioners v Commerzbank AG ChD 1990
Mummery J set out the correct approach to interpretation of double taxation agreements as laid down in Fothergill. He said ‘(1) It is necessary to look first for a clear meaning of the words used in the relevant article of the convention, bearing in . .
Appeal from – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.510025

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 jurisdiction. Milled J. refused the application under 0.48 but granted it under section 37. The defendant appealed.
Held: The Appeal failed. The Judge’s decision under the Rules was correct. The order was made against a ‘proper officer’ of the ITC. Being a non- corporate entity there were no officers in the technical sense or the sense in which that word is used in the case of corporations. The court considered the inherent jurisdiction to compel disclosure of assets abroad.
Kerr LJ said: ‘there is an inherent power under what is now section 37(1) to make any ancillary order, including an order for discovery, to ensure the effectiveness of any other order made by the court.’
Kerr LJ
[1989] Ch 286, [I988] 3 WLR 1 190
England and Wales
Citing:
Cited – A J Bekhor and Co Ltd v Bilton CA 6-Feb-1981
The plaintiff had applied for disclosure of assets under the Rules of the Supreme Court in support of a Mareva freezing order. The rules were held not to provide any such power: disclosure of assets could not be obtained as part of discovery as the . .

Cited by:
See Also – Re International Tin Council CA 1989
Creditors sought to treat the International Tin Council as an ‘association’ for the purposes of a provision under the Companies Act 1985 allowing for unregistered companies to be wound up.
Held: The decision in Re a Company was binding. The . .
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 – 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 – 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 . .
Cited – XX and Others v YY and Others ChD 2-Jul-2021
The first defendant applies for an order that the claimants are not entitled to pursue legal action against his lawyers in respect of funds over which the claimants claim a proprietary interest and paid to the first defendant’s lawyers as legal fees . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 October 2021; Ref: scu.230259

Re H (A Child): FD 24 May 2019

Application by the father under the Hague Convention issued on 12 December 2018 for the summary return of his son H to DD.
Corbett J
[2019] EWHC 1509 (Fam)
Bailii
England and Wales

Updated: 30 October 2021; Ref: scu.648638

Akarcay, Regina (on The Application of) v West Yorkshire Police and Others: Admn 3 Feb 2017

‘The claimant seeks to challenge the provision of material by the West Yorkshire Police to their counterparts in the Turkish Republic of North Cyprus, where he now faces prosecution for drug related and money laundering offences alleged to have been committed in England. Northern Cyprus is not recognised by the United Kingdom, nor by any other country save Turkey.’
Burnett LJ, Thirlwall J
[2017] EWHC 159 (Admin)
Bailii
England and Wales

Updated: 26 October 2021; Ref: scu.573921

Strathalmond v Inland Revenue Commissioners: 1972

The taxpayer’s wife was an American citizen resident for tax purposes in the United Kingdom. Because of her American citizenship, however, she was not resident in the United Kingdom for the purposes of the Double Taxation Agreement between the United Kingdom and the United States. Her husband was assessed to tax on her American dividends. The assessments were discharged on the ground that the dividends were exempted from United Kingdom tax by the Double Taxation Agreement.
[1972] 1 WLR 1511
England and Wales
Cited by:
Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.573171

Canadian Eagle Oil Co Ltd v The King: 1946

[1946] AC 119
England and Wales
Citing:
Overruled – Gilbertson v Fergusson CA 1881
. .

Cited by:
Cited – Anson v Revenue and Customs SC 1-Jul-2015
Interpretation of Double Taxation Agreements
This appeal is concerned with the interpretation and application of a double taxation agreement between the United Kingdom and the United States of America. A had been a member of an LLP in Delaware, and he was resident within the UK, but not . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.573170

Schuster v City of New York: 1958

Court of Appeals of New York – The victim was a public spirited young man whose murder had no obvious explanation other than retribution for his cooperation with the police.
Held: It may be possible to create a case of circumstantial evidence so strong as to lead the mind inevitably to the conclusion that injury to a person who supplied information to the police resulted from his having supplied such information.
154 NE2d 534, 5 NY2d 75, 180 NYS2d 265, 5 NY 2d 75
Cited by:
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.556808

Riss v City of New York: 1986

New York Court of Appeals – a young woman who had repeatedly sought police protection against a rejected suitor after repeated threats was blinded by a thug hired by him.
Held: (Keating J dissenting) No action for negligence lay. Individuals, juries and courts are ill-equipped to judge ‘considered legislative-executive decision[s]’ as to how particular community resources should be or should have been allocated to protect individual members of the public.’ The provision of a government service to protect the public from external hazards and to control the activities of criminal wrongdoers was more appropriate for a considered legislative – executive decision, taking into account the limited resources of the community.
240 NE2d 860, 293 NYS2d 897, (1986) 22 NY2d 579
United States
Cited by:
Cited – Michael and Others v The Chief Constable of South Wales Police and Another SC 28-Jan-2015
The claimants asserted negligence in the defendant in failing to provide an adequate response to an emergency call, leading, they said to the death of their daughter at the hands of her violent partner. They claimed also under the 1998 Act. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 26 October 2021; Ref: scu.556807

Re A (A Child): FD 16 Oct 2020

The mother seeks an order for the summary return of A to the jurisdiction of Italy pursuant to the 1980 Hague Convention on the Civil Aspects of International Child Abduction (‘the 1980 Hague Convention’). Her case is that A was wrongfully removed from Italy to England by (or on behalf of) the father on or about 16 October 2019.
[2020] EWHC 2784 (Fam)
Bailii
Civil Aspects of International Child Abduction
England and Wales

Updated: 25 October 2021; Ref: scu.656327

Andrejeva v Latvia: ECHR 18 Feb 2009

(Grand Chamber) The concept of jurisdiction for the purposes of article 1 reflects that term’s meaning in public international law and is closely linked to the international responsibility of the state concerned.
55707/00, [2009] ECHR 297, (2010) 51 EHRR 28
Bailii
European Convention on Human Rights 1
Cited by:
Cited – Smith and Others v The Ministry of Defence SC 19-Jun-2013
The claimants were PRs of men who had died or were severely injured on active duty in Iraq being variously fired at by mistake by other coalition forces, or dying in vehicles attacked by roadside bombs. Appeals were heard against a finding that the . .
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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 23 October 2021; Ref: scu.301685

Calvin’s case: 1606

Sir Edward Coke said: ‘If this alien becomes an enemy (as all alien friends may) then he is utterly disabled to maintain any action, or get anything within this realm.’ and ‘If a King comes to a kingdom by conquest, he may change and alter the laws of that kingdom; but if he comes to it by title and descent, he cannot change the laws of himself without the consent of Parliament.’ the court identified a reciprocal bond of allegiance between an individual and the state: ‘duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem; merito igitur ligeantia dicitur ab ligando, quia continet in se duplex ligamen.’
‘But between the Sovereign and the subject there is without comparison a higher and greater connexion; for as the subject oweth to the King his true and faithful ligeance and obedience, so the Sovereign is to govern and protect his subjects . . ‘
‘ . . ligeance is the mutual bond and obligation between the King and his subjects, whereby subjects are called his liege subjects, because they are bound to obey and serve him; arid he is called their liege lord, because he should maintain and defend them.’
(1608) Co Rep 1a, 77 ER 377
Commonlii
England and Wales
Cited by:
Cited – Amin v Brown ChD 27-Jul-2005
The defendant raised as a preliminary point the question of whether the claimant, an Iraqi, was an enemy alien, and therefore debarred from bringing proceedings to recover.
Held: Under modern law it could not be a requirement that a state of . .
Cited – Misick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .
Cited – Alcom Ltd v Republic of Colombia HL 1984
A bank account used to cover the day-to-day expenses of an Embassy, clearly served sovereign purposes and therefore was immune from enforcement measures. The Act of 1978 must be read against the background of customary international law current in . .
Cited – Smith, Regina (on The Application of) v Secretary of State for Defence and Oxfordshire Assistant Deputy Coroner (Equality and Human Rights Commission intervening) SC 30-Jun-2010
The deceased soldier died of heat exhaustion whilst on active service in Iraq. It was said that he was owed a duty under human rights laws, and that any coroner’s inquest should be a fuller one to satisfy the state’s duty under Article 2.
Cited – Regina v Secretary of State for the Home Department, ex Parte Northumbria Police Authority CA 18-Nov-1987
The Authority appealed from refusal of judicial review of a circular issued by the respondent as to the supply of Plastic Baton Rounds and CS gas from central resources only. The authority suggested that the circular amounted to permission for the . .

Lists of cited by and citing cases may be incomplete.
Updated: 19 October 2021; Ref: scu.230007

A and others v HM Treasury; G v HM Treasury: CA 30 Oct 2008

The Treasury appealed against an order quashing its own 2006 Orders, giving effect to the obligations on the United Kingdom as a member of the United Nations to ensure that the assets of an individual designated by the UN were to be subject to severe financial restrictions.
Held: The Orders in Council made under the 1946 Act giving effect to UN resolutions were effective subject to certain conditions. In particular there was a need to show reasonable cause to suspect involvement in terrorist activities, and proper opportunity to object to and answer any allegations made.
Sir Anthony Clarke MR said: ‘There is no power to appoint a special advocate in proceedings arising out of an order [made under the 2006 Order]. However, as I see it there is no reason in principle why a special advocate should not be appointed in a particular case. The authorities show that in an appropriate case the court would have the power to authorise or request the use of a special advocate, see in particular the decision of the House of Lords in Roberts . . where it was held that the court had power to do so even though it was not sanctioned by Parliament. Whether it should do so would depend on the particular circumstances of the case. It has very recently been held by the Divisional Court in Malik . . that the court has power to ask the Attorney-General to appoint a special advocate or that it should only do so in an exceptional case and as a last resort. . ‘ and ‘the court has power to order a special advocate. In most cases such an advocate should be able to ensure that the individual will receive a fair hearing. In other cases the direction would have to be discharged, see the reasoning of the House of Lords in the MB case. In either case, the interests of the individual will be protected.’
Sir Anthony Clarke MR, Sedley LJ, Wilson LJ
[2008] EWCA Civ 1187, [2009] Lloyd’s Rep FC 14, [2009] 2 All ER 747, [2009] ACD 16, [2009] 3 WLR 25
Bailii, Times
Al-Qaida and Taliban (United Nations Measures) Order 2006, Terrorism (United Nations Measures) Order 2006, United Nations Act 1946
England and Wales
Cited by:
Cited – Al Rawi and Others v The Security Service and Others QBD 18-Nov-2009
The claimants sought damages from the defendants saying that they had been held and ill treated at various detention centres by foreign authorities, but with the involvement of the defendants. The defendants sought to bring evidence before the court . .
Appeal from – HM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
Cited – Al Rawi and Others v The Security Service and Others CA 4-May-2010
Each claimant had been captured and mistreated by the US government, and claimed the involvement in and responsibility for that mistreatment by the respondents. The court was asked whether a court in England and Wales, in the absence of statutory . .
Cited – Al Rawi and Others v The Security Service and Others SC 13-Jul-2011
The claimant pursued a civil claim for damages, alleging complicity of the respondent in his torture whilst in the custody of foreign powers. The respondent sought that certain materials be available to the court alone and not to the claimant or the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.277356

Re Visser: ChD 1928

English law generally does not permit either the direct or indirect enforcement of foreign revenue laws.
Tomlin J
[1928] 1 Ch 877
England and Wales
Cited by:
Cited – Revenue and Customs and Another v Ben Nevis (Holdings) Ltd and Others ChD 20-Jul-2012
The claimant sought to make arrangements with a view to collecting substantial arrears of tax due to South Africa. The revenue said that it had that power by virtue of the double taxation treaty with South Aftrica. The company replied that the . .

Lists of cited by and citing cases may be incomplete.
Updated: 17 October 2021; Ref: scu.519310

J v Dr P: FD 30 Mar 2007

Sumner J
[2007] EWHC 704 (Fam)
Bailii
England and Wales

Updated: 15 October 2021; Ref: scu.251182

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
Teare J
[2020] EWHC 1721 (Comm), [2020] WLR(D) 382
Bailii, WLRD
England and Wales
Cited by:
Cited – 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. . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.652447

JC v CS: FD 16 Nov 2006

[2006] EWHC 2891 (Fam)
Bailii
England and Wales

Updated: 14 October 2021; Ref: scu.247601

Ruhorimbere v Council (Judgment): ECFI 15 Sep 2021

Common foreign and security policy – Restrictive measures taken in view of the situation in the Democratic Republic of the Congo – Freezing of funds – Restriction on admission to the territories of the Member States – Retention of the applicant’s name on the lists of persons concerned – Obligation to state reasons – Right to be heard – Proof of the validity of inclusion and maintenance on the lists – Manifest error of assessment – Perpetuation of the factual and legal circumstances which led to the adoption of the restrictive measures – Right to respect for private and family life – Presumption of innocence – Proportionality – Exception of illegality
T-105/20, [2021] EUECJ T-105/20, ECLI:EU:T:2021:581
Bailii
European

Updated: 14 October 2021; Ref: scu.668121

Melli Bank Plc v Council of The European Union: ECFI 20 Feb 2013

ECFI Common foreign and security policy – Restrictive measures against Iran with the aim of preventing nuclear proliferation – Freezing of funds – Entity wholly owned by an entity identified as being involved in nuclear proliferation – Plea of illegality – Obligation to state reasons – Rights of the defence – Right to effective judicial protection
Pelikanova P
T-492/10, [2013] EUECJ T-492/10
Bailii
European

Updated: 13 October 2021; Ref: scu.471151

Trafigura Beheer Bv v Kookmin Bank Co: ComC 27 Jul 2006

Application for a post-trial anti-suit injunction restraining proceedings brought by the defendant (‘Kookmin’) in Seoul Central District Court.
Field J
[2006] EWHC 1921 (Comm), [2007] 1 Lloyds Rep 669
Bailii
England and Wales
Citing:
See Also – Trafigura Beheer Bv v Kookmin Bank Co ComC 5-Aug-2005
Entitlement to anti-suit injunction. . .
Cited – Trafigura Beheer Bv v Kookmin Bank Co ComC 16-Jun-2006
The defendant bank had given the claimant a letter of credit, but when the goods under transport were discharged without the bills of lading,and the buyers became insolvent, the bank refused to pay. There had been proceedings in Korea, but the . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.245436

Miliangos v George Frank (Textiles) Ltd: HL 1975

The issue was whether an English court was able to award damages in Sterling only.
Held: The House distinguished clearly between the substance of the debtor’s obligations and the effect of English procedural law when a debt in a foreign currency came to be enforced in England. A judgment debt expressed in a foreign currency must be converted into sterling for enforcement purposes on the date when the court authorises enforcement of the judgment. The general rule in tort is that damages should be assessed as at the date of breach.
The House considered whether it was obliged to follow its own previous decisions. Lord Wilberforce: ‘It is true that since 1966 your Lordships have power to depart from a previous decision of your Lordships’ House; although, in view of the limited resources available to decision-making by a court of law, it is a power which your Lordships have exercised with proper restraint. But the statement of Lord Gardiner LC of July 26, 1966 [Practice Statement: (Judicial Precedent) [1966] 1 WLR 395], expressly asserted that it was ‘not intended to affect the operation of the rule of precedent elsewhere than’ in your Lordships’ House; and it is clear law that the Court of Appeal is bound by a decision of your Lordships’ House and (at least on its civil side) by a previous decision of the Court of Appeal itself: Young v Bristol Aeroplane Co. Ltd [1944] KB 718; [1946] AC 163, 160. Any change in this respect would require legislation.’
Lord Wilberforce said: ‘The substance of the debtor’s obligations depends upon the proper law of the contract (here Swiss law); and though English law (lex fori) prevails as regards procedural matters, it must surely be wrong in principle to allow procedure to affect, detrimentally, the substance of the creditor’s rights. [I]f means exist for giving effect to the substance of a foreign obligation, conformably with the rules of private international law, procedure should not unnecessarily stand in the way.’ and ‘[O]bjections based on authority against making an order in specie for the payment or delivery of foreign money, are not, on examination, found to rest on any solid principle or indeed on more than the Court’s discretion.’
Lord Wilberforce, Lord Cross of Chelsea, Lord Edmund-Davies
[1976] AC 443, [1975] 1 WLR 758
England and Wales
Citing:
Not followed – In re United Railways of Havana and Regla Warehouses Ltd; Tomkinson v First Pennsylvania Banking and Trust Co HL 1960
A sum was held to be due from that company in US dollars under a lease and another agreement which were both governed by the law of Pennsylvania.
Held: The sum provable in the liquidation of the company was to be converted at the rates of . .
Appeal from – Miliangos v George Frank (Textiles) Ltd CA 1975
The court looked at what makes a case decided per incuriam: ‘a case is not decided per incuriam because counsel have not cited all the relevant authorities or referred to this or that rule of court or statutory provision.’ (Lord Denning MR) . .
Cited – Clippens Oil Co v Edinburgh and District Water Trustees HL 1907
A wrongdoer must take his victim as he finds him, and be answerable for the consequences which actually flow from his wrongful act.
Lord Collins said: ‘In my opinion the wrongdoer must take his victim talem qualem, and if the position of the . .

Cited by:
Cited – Smith and Another v South Gloucestershire Council CA 31-Jul-2002
The claimants purchased land. The local search did not reveal a planning permission which affected the value of the property by applying an occupancy condition. He claimed compensation. Compensation was eventually agreed to be payable, but the . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others CA 31-Jul-2003
The parties went to arbitration to resolve disputes in a construction contract. The award appeared to have been made for payment in currencies different from those set out in the contract. The question was asked as to whether the award of interest . .
Cited – Barings Plc (In Liquidation) and Another, Barings Futures (Singapore) Pte Ltd (In Liquidation) v Coopers and Lybrand (A Firm) and Others, Mattar and 36 Others ChD 17-Oct-2003
BFS was a company incorporated in Singapore which conducted its internal affairs in Singapore Dollars. It was by statute required to render its accounts in that currency. It paid its staff in Singapore Dollars. It sought damages in Singapore . .
Cited – In re Telewest Communications Plc ChD 26-Apr-2004
A scheme of arrangement had been proposed. The creditor complained that in providing for payment in a currency other than that agreed, it had been prejudiced.
Held: The provision in the scheme did purport to alter the claimant’s rights. . .
Cited – Carnegie v Glessen and Others CA 1-Mar-2005
A dispute had been settled by imposition of a charging order against property expressed in a foreign currency. The claimant now said such an order was not possible, and had been made by mistake correctable under the slip rule.
Held: The Master . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Cited – National Westminster Bank plc v Spectrum Plus Limited and others HL 30-Jun-2005
Former HL decision in Siebe Gorman overruled
The company had become insolvent. The bank had a debenture and claimed that its charge over the book debts had become a fixed charge. The preferential creditors said that the charge was a floating charge and that they took priority.
Held: The . .
Cited – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Cited – Desnousse v London Borough of Newham and others CA 17-May-2006
The occupier had been granted a temporary licence by the authority under the homelessness provisions whilst it made its assessment. The assessment concluded that she had become homeless intentionally, and therefore terminated the licence and set out . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – Golden Strait Corporation v Nippon Yusen Kubishka Kaisha (‘The Golden Victory’) HL 28-Mar-2007
The claimant sought damages for repudiation of a charterparty. The charterpary had been intended to continue until 2005. The charterer repudiated the contract and that repudiation was accepted, but before the arbitrator could set his award, the Iraq . .
Cited – William John Henry Johnson v Gore Wood and Co CA 3-Dec-2003
. .
Cited – Alcoa Minerals of Jamaica Inc v Herbert Broderick PC 20-Mar-2000
(Jamaica) Damage had been caused to the claimant’s property, but, because of his lack of funds, he was dependent upon the receipt of the damages to carry out the works of repair necessary. By the time the matter came to trial, inflation meant that . .
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 – LB Holdings Intermediate 2 Ltd, The Joint Administrators of v Lehman Brothers International (Europe), The Joint Administrators of and Others SC 17-May-2017
In the course of the insolvent administration of the bank, substantial additional sums were received. Parties appealed against some orders made on the application to court for directions as to what was to be done with the surplus.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.182981

Regina v Secretary of State for the Home Department, ex parte Adan, Same, ex parte Aitsegeur: HL 20 Dec 2000

The Convention gave protection to an asylum seeker fearing persecution by non-state agents in his country of origin where that government was unable or unwilling to provide protection. France and Germany did not recognise this right, and therefore an asylum seeker returned to those countries would in turn face return to his country of origin. Accordingly neither France and Germany was a safe country for return in these circumstances. There can be only one correct interpretation of the treaty, and cases of dispute, should be dealt with by the International Court of Justice under article 38. In the absence of such a decision, national courts must make their decisions, but do so untrammelled by national legal culture. No criticism was intended of interpretations adopted in good faith by Germany and by France.
Lord Slynn observed that an international treaty has only one meaning. The courts: ‘cannot simply adopt a list of permissible or legitimate or possible or reasonable meanings and accept that any one of those when applied would be in compliance with the Convention.’
Times 20-Dec-2000, Gazette 25-Jan-2001, [2001] 1 All ER 593, [2001] 2 WLR 143, [2000] UKHL 67, [2001] 2 AC 477
House of Lords, House of Lords, Bailii
Geneva Convention and Protocol relating to the Status of Refugees 1951 (1951) (Cmd 9171)
England and Wales
Citing:
See Also – Adan v Secretary of State for the Home Department HL 6-Apr-1998
A fear of persecution which was justified only historically, was insufficient to justify an asylum claim. The applicant must show justification for contemporary fears. The applicant had been granted exceptional leave to remain in the UK, but wanted . .

Cited by:
Cited – Mohammad, Manoharan, Sakhee, Yogarajah v The Secretary of State for the Home Department QBD 24-Jan-2002
The applicants were asylum seekers. They were made subject to certificates issued by the Secretary of State which would require refoulement, for them to be returned to the country into which they first made their escape for their application for . .
Cited – Sepet and Bulbil v Secretary of State for the Home Department HL 20-Mar-2003
The appellants sought asylum. They were Kurdish pacifists, and claimed that they would be forced into the armed forces on pain of imprisonment if they were returned to Turkey.
Held: The concept of ‘persecution’ was central. It is necessary to . .
Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
Cited – HC v Secretary of State for the Home Department CA 20-Jul-2005
The applicant challenged refusal of his asylum application saying that the court had failed to take account of the fact that as a homosexual moslem, he would face persecution if returned home.
Held: The IAT had not properly recognised that at . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department Admn 2-Dec-2002
The Claimant was a Tamil from Sri Lanka claiming asylum. He was married in 1991; his wife was also Tamil. In 1995 his claim for asylum in Germany failed. What then happened was disputed. The Claimant said that he voluntarily returned to Sri Lanka, . .
Cited – Regina (Nadarajah) v Secretary of State for the Home Department; Abdi v Secretary of State for the Home Department CA 22-Nov-2005
The asylum applicant challenged a certificate given by the respondent that the claim for asylum was manifestly ill-founded. The respondent had made a mistake in applying the appropriate policy, but had sought to correct the error. The claimants . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – Secretary of State for the Home Department v K, Fornah v Secretary of State for the Home Department HL 18-Oct-2006
The claimants sought asylum, fearing persecution as members of a social group. The fear of persecution had been found to be well founded, but that persecution was seen not to arise from membership of a particular social group.
Held: The . .
Cited – Reyes v Al-Malki and Another SC 18-Oct-2017
The claimant alleged that she had been discrimated against in her work for the appellant, a member of the diplomatic staff at the Saudi Embassy in London. She now appealed against a decision that the respondent had diplomatic immunity.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 October 2021; Ref: scu.87923

King v Bristow Helicopters Ltd; Morris v KLM Royal Dutch Airlines: HL 28 Feb 2002

Psychiatric Injury under Warsaw Convention

The applicants were passengers who claimed damages for psychiatric injury, after accidents in aircraft.
Held: The Convention created strict liability on air carriers, but explicitly restricted damages to be payable for ‘bodily injury’. That term did not include mental injury, and the awards for such were overturned. The brain as a part of the body was perfectly capable of being injured, and where the injury had a physical manifestation, damages were claimable. There was respectable medical support for the view that, for example, a major depressive disorder was the expression of physical changes in the brain and its hormonal chemistry. Such physical changes were capable of amounting to an injury and, if they did, they were bodily injuries. Also cases of post-traumatic stress disorder which had been shown to have a physical element in changes of the brain had been successful. The rights of a claimant are exclusively defined in the Convention; if the Convention gives no remedy then the alleged wrong will not be satisfied at law. Lord Hope: statutes of the ‘always speaking’ type: should be interpreted in the light of the current scientific evidence . . The proper approach is to make use of the best current medical and scientific knowledge that is available.’
Lord Hope stated the convention ‘was not based on the legal system of any of the contracting states. It was intended to be applicable in a uniform way across legal boundaries’, and ‘the language used should be construed on broad principles leading to a result that is generally acceptable’
Lord Hobhouse of Woodborough stated that the purpose of uniformity required the national court to ‘put to one side its views about its own law and other countries’ laws’ and focus on the question ‘what do the actual words used mean?’
Lord Nicholls of Birkenhead, Lord Mackay of Clashfern, Lord Steyn, Lord Hope of Craighead and Lord Hobhouse of Woodborough
Times 01-Mar-2002, Gazette 28-Mar-2002, [2002] UKHL 7, [2002] 2 AC 628, [2002] 2 WLR 578
House of Lords, Bailii
Warsaw Convention on International Carriage by Air 1929 17, Carriage by Air Act 1961
Scotland
Citing:
Cited – Weaver v Delta Airlines Inc 30-Jun-1999
(United States District Court, D. Montana, Billings Division.) . .
Appeal from – Morris v KLM Royal Dutch Airlines CA 17-May-2001
An unaccompanied female passenger aboard an aircraft was indecently assaulted. She suffered mental, but no physical, injury. She claimed damages against the airline under the Convention.
Held: The assault was a special risk inherent in air . .

Cited by:
Cited – In re Deep Vein Thrombosis and Air Travel Group Litigation QBD 20-Dec-2002
The claimants claimed to have suffered deep vein thrombosis having been sat in cramped conditions for long periods whilst travelling by air. They sought compensation, saying that the failure by the airlines to warn them and take steps to minimise . .
Cited – Glen and Other v Korean Airlines Company Ltd QBD 28-Mar-2003
The claimant sought damages for personal injuries under the Act. The injuries were psychiatric, being suffered when they witnessed a crash from the ground.
Held: Psychiatric injury is a recognised form of personal injury, and no statute . .
Cited – GKN Westland Helicopters Ltd and Another v Korean Air Lines Co Ltd; Press Tech Controls Ltd v Same ComC 19-May-2003
The sum accepted as a payment in, in an air carriage case was capable of being the ‘amount of damages’ awarded under the convention. That it exceeded the amount offered in settlement negotiations meant that the rights to costs under article 22.4 . .
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – Regina (Smeaton) v Secretary of State for Health and Others Admn 18-Apr-2002
The claimant challenged the Order as regards the prescription of the morning-after pill, asserting that the pill would cause miscarriages, and that therefore the use would be an offence under the 1861 Act.
Held: ‘SPUC’s case is that any . .
Cited – Deep Vein Thrombosis and Air Travel Group Litigation HL 8-Dec-2005
The appellants had suffered deep vein thrombosis whilst travelling on long haul air flights. The defendants said that their liability was limited because the injuries were not accidents.
Held: The claimants’ appeal failed. The definition of . .
Cited – Barclay v British Airways Plc CA 18-Dec-2008
The claimant sought damages for personal injury. The airline said that the injury was not the result of an accident within article 17.1. She was walking down the aisle and slipped.
Held: The appeal was dismissed. The meaning of ‘accident’ . .
Cited – Gard Marine and Energy Ltd and Another v China National Chartering Company Ltd and Another SC 10-May-2017
The dispute followed the grounding of a tanker the Ocean Victory. The ship was working outside of a safe port requirement in the charterparty agreement. The contract required the purchase of insurance against maritime war and protection and . .
Cited – Mitsui and Co Ltd and Others v Beteiligungsgesellschaft Lpg Tankerflotte Mbh and Co Kg and Another SC 25-Oct-2017
This appeal raises the issue whether the daily vessel-operating expenses of shipowners incurred while they were negotiating to reduce the ransom demands of pirates should be allowed in general average – ie whether those expenses should be shared . .
Cited – Warner v Scapa Flow Charters (Scotland) SC 17-Oct-2018
This appeal raises a question about the interpretation of article 16 of the Athens Convention relating to the Carriage of Passengers and their Luggage by Sea 1974 (‘the Athens Convention’) and its application to the Scots law of limitation of . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.167671

Abnett v British Airways Plc (Scotland): IHCS 28 Apr 1995

A passenger wrongfully detained in Kuwait, whilst travelling at the time when Iraq invaded Kuwait, only has right to claim damages under Warsaw Convention.
Lord Allanbridge, Lord Mayfield and Lord Clyde
Times 22-Jun-1995, 1996 SLT 529
Warsaw Convention for the Unification of Certain Rules regarding International Air Transport 1929
Scotland
Citing:
Distinguished – Gatewhite v Iberia Lineas Aereas de Espana SA 1990
In a contract for the carriage of goods by air, the court considered whether the owner of goods who had not been named as the consignor or consignee on the air waybill was entitled to sue the carrier for damages to the goods while in transit.
Cited by:
Appeal from – Sidhu and Others v British Airways Plc; Abnett (Known as Sykes) v Same HL 13-Dec-1996
The claimants had been air passengers who were unlawfully detained in Kuwait, when their plane was captured whilst on the ground on the invasion of Kuwait. They sought damages for that detention.
Held: There are no exceptions to the Warsaw . .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.77611

Re G (Abduction: Withdrawal of Proceedings, Acquiescence, and Habitual Residence): FD 30 Nov 2007

Sir Mark Potter
[2007] EWHC 2807 (Fam)
Bailii
Child Abduction and Custody Act 1985
England and Wales
Citing:
See Also – In re G (Surrogacy: Foreign Domicile) FD 28-Nov-2007
. .

Lists of cited by and citing cases may be incomplete.
Updated: 27 September 2021; Ref: scu.262189

Korea National Insurance Corp (KNIC) v Allianz Global Corporate and Speciality Ag: CA 2 Dec 2008

The insurance company appealed against refusal of the court to decline to enforce a judgment entered against it by the courts of North Korea. It had argued that the insurance policy had been obtained by fraud of the NK government, and that the court was not independent of NK. The court had found the defence non-justiciable.
Held: The judge had made his order without advice from the Foreign and Commonwealth Office. He should not have done so. ‘There is no general rule that if an allegation might embarrass a foreign sovereign it follows that that will also embarrass diplomatic relations with the United Kingdom and that thus such embarrassing issues are non-justiciable.’ Nevertheless allegations of fraud against a head of state were particularly serious, and the court might consider whether the case could be repleaded to avoid the non-justiciability issue.
Waller LJ, Rix LJ, Thomas LJ
[2008] EWCA Civ 1355, Times 22-Dec-2008, [2009] Lloyd’s Rep IR 480, [2008] 2 CLC 837, [2009] Bus LR D59
Bailii
England and Wales
Citing:
Appeal from – Korea National Insurance Company v Allianz Global Corporate and Specialty Ag ComC 18-Nov-2008
The claimant sought to enforce a judgment for payment of a sum under a policy of insurance. The defendant sought to refuse saying that the policy had been instigated by a fraud perpetrated by the state of North Korea, and or that the judicial system . .
Cited – Kuwait Airways Corporation v Iraqi Airways Company (Conjoined Appeals 4 and 5) CA 10-Nov-2000
If a foreign made law was in breach of clearly established international law, then an English court should not recognise it. To do otherwise would be contrary to public policy. An interference with goods pursuant to such a law was actionable in . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 September 2021; Ref: scu.278525

Chorley v Chorley: CA 12 Jan 2005

The husband claimed that he had begun court proceedings elsewhere in France and before the wife issued her petition here. She contended that she should be allowed to proceed since the husband’s proceedings had not reached a stage at which the court was seised of the matter within the regulation.
Held: When the court need to ask whether the proceedings amounted to the issue of divorce proceedings within the regulations, the proper court to decide the nature of the proceedings was the court at issue, which could then apply the regulations and accept or decline jurisdiction.
Thorpe, Tuckey, Dyson LJJ
Times 18-Jan-2005, [2005] EWCA Civ 68, [2005] 2 FLR 38, [2005] 1 WLR 1469
Bailii
Council Regulation (EC) No 1347/2000 on jurisdiction and enforcement in matrimonial matters and parental responsibility
England and Wales

Updated: 25 September 2021; Ref: scu.222859

Kireeva and Another v Bedzhamov: ChD 13 Aug 2021

Application to have recognised a Russian bankruptcy order.
[2021] EWHC 2281 (Ch)
Bailii
England and Wales

Updated: 05 September 2021; Ref: scu.666607

Shanning International Ltd (in liquidation) v Lloyds Bank plc Lloyds Bank plc v Rasheed Bank: HL 2 Jul 2001

Under a series of cross guarantees, equipment was supplied to Iraq. Final payment was due on delivery of the final equipment. Before it could be delivered, the prohibitions came into effect against satisfying or making any claims in connection with transactions in matters covered by the UN resolution. The company went into liquidation, and sought claims under the guarantees from the bank. The bank agreed liability if it could itself be excused liability to the Iraqi company. It was held that the intention was to create a permanent prohibition. To hold otherwise would risk reviving contractual obligations which could no longer be performed. The ban might end but prohibition on the enforcement of earlier contracts must remain.
Bingham, Steyn, Hope, Hobhouse, Scott L
Times 02-Jul-2001, Gazette 23-Aug-2001, [2001] UKHL 31, [2001] 1 WLR 1462, [2001] 3 CMLR 14
Bailii, House of Lords
Council Regulation (EEC) 3541/92
England and Wales
Citing:
Appeal from – Shanning International Limited (In Liquidation) v Lloyds TSB Bank Plc (Formerly Lloyds Bank Plc) Part 20 and Rasheed Bank and Sbg Holdings Limited Part 20 CA 25-May-2000
. .
At first instance – Shanning International Ltd v Lloyds TSB Bank plc; Lloyds TSB Bank plc v Rasheed Bank and another ComC 17-Dec-1999
The parties were linked together by a series of bonds, deposits, and guarantees and indemnities which had been designed to enable trade with a customer in Iraq. The Regulation operated to prevent any claim being made under the bond, and therefore . .
Cited – Litster and Others v Forth Dry Dock and Engineering Co Ltd HL 16-Mar-1989
The twelve applicants had been unfairly dismissed by the transferor immediately before the transfer, and for a reason connected with the transfer under section 8(1). The question was whether the liability for unfair dismissal compensation . .
Cited – William Dowling v Ireland, Attorney General and Minister for Agriculture and Foods ECJ 22-Oct-1992
Europa The combined provisions of Articles 3(3) and 3a of Regulation No 857/84, as amended by Regulation No 764/89 and subsequently by Regulation No 1639/91, do not provide for any possibility of granting a . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.89187

Republic of India and Others v India Steamship Co Ltd (‘The Indian Endurance and The Indian Grace’) (No 1): HL 29 Mar 1993

Munitions were being carried to Cochin on board the defendants’ vessel. Some was jettisoned in a fire and the remainder was damaged. The cargo owners sought damages in India for short delivery under the bills of lading, as to the jettisoned cargo only. The defendants were held liable for the value of the undelivered cargo. The plaintiffs then sued in rem in London for the total loss. The claim in the Indian action was for short delivery and was advanced under one of the two bills of lading under which the consignment was shipped, pleading negligence in the shipowners. This was taken to refer to a breach of their duty as bailees (carriers for reward). It was either common ground (or found by the Indian judge) that the contract incorporated the Hague Rules. The claim in the English action was in the ordinary form for a damage to cargo claim, alleging against the shipowners (1) breach of contract and/or duty as carrier by sea for reward to deliver the goods in like good order and condition as when shipped; (2) negligence, in breach of duty as carriers and/or as bailees for reward; and (3) breach of their obligations under article III(1) and (2) of the Hague-Visby Rules, which apply to the contracts contained in or evidenced by the two bills of lading under which the goods were shipped. The House considered whether the causes of action alleged in the two actions were the same.
Held: Because the Act operated to bar the commencement of proceedings, rather than to exclude the jurisdiction of the court per se, the parties were entitled to contract explicitly, or by waiver or otherwise to exclude the operation of the Act, and to give jurisdiction to the UK court. The operation of the res judicata doctrine is subject to exception for plea of waiver or estoppel.
Lord Goff of Chieveley said: ‘the goods in question were shipped under a contract of carriage the terms of which (as set out in the Hague Rules or the Hague-Visby Rules) regulate the respective rights and obligations of the parties. In these circumstances, the mere fact that the pleader can, so to speak, get the case on its feet by alleging short delivery or delivery of the goods not in the like good order and condition as when shipped, does not in my opinion assist. For it is wholly unrealistic to regard the cause of action as being other than a cause of action arising under the contract, which provides for the relevant duties of the shipowners regarding the seaworthiness of the ship and the care of the goods. Even if attention is concentrated on the liability of the shipowner as bailee, the fact remains that he is a bailee for reward, and that accordingly his liability will be governed by the terms of the contract of carriage . . Here . . it is necessary to identify the relevant breach of contract; and if it transpires that the cause of action in the first action is a breach of contract which is the same breach of contract which constitutes the cause of action in the second, then the principle of res judicata applies, and the plaintiff cannot escape from the conclusion by pleading in the second action particulars of damage which were not pleaded in the first.’ and ‘[The present case] is rather concerned with a single incident, i.e., the fire during transit which broke out in the cargo over which the plaintiffs’ consignment of munitions was stowed, which resulted in the damage to that consignment and to loss (by jettison) of a small part of it. Furthermore, as appears from the pleadings, that loss or damage might have resulted from breach of more than one term of the contract, for example breach of the obligation to make the vessel seaworthy under article III, rule 1, of the Hague-Visby Rules, or breach of the obligation to load and stow, etc., the vessel carefully under article III, rule 2. However, for present purposes, there is no need to distinguish between the two breaches; because the factual basis relied upon by the plaintiffs as giving rise to the two breaches is the same, and indeed was referred to compendiously by the plaintiffs in the Cochin action as ‘negligence’. In these circumstances, I am satisfied that there is identity between the causes of action in the two sets of proceedings.’
Lord Goff of Chieveley
Gazette 07-Apr-1993, Ind Summary 29-Mar-1993, [1993] 2 WLR 461, [1993] AC 410, [1993] 1 All ER 998
Civil Jurisdiction and Judgments Act 1982 34
England and Wales
Citing:
Appeal from – Republic of India and Others v India Steamship Co Ltd; The Indian Endurance and The Indian Grace CA 1992
Munitions were consigned to Cochin on board the defendants’ vessel. A fire occurred, and part was jettisoned, the remainder being damaged. The cargo owners first claimed damages in India for short delivery under the bills of lading for the . .

Cited by:
Cited – Meretz Investments Nv and Another v ACP Ltd and others ChD 30-Jan-2006
The applicant challenged the exercise of a power of sale under a mortgage, saying that the mortgagee’s purposes included purposes not those under the mortgage. The parties had been involved in an attempted development of a penthouse.
Held: The . .
Cited – Sarwar v The Royal Bank of Scotland Plc (Rev 1) ChD 27-Jul-2011
The claimant appealed against a finding of indebtedness to the bank. He had said at trial that the bank had been charging interest at 25%. The bank denied this, but after trial it became clear that he had been correct. The bank argued for abuse of . .
Cited – Moorjani and Others v Durban Estates Ltd and Another TCC 15-May-2019
Allegations of breach of landlords’ repairing obligations – defendants’ strike out application.
Held: ‘ the critical question is whether this second action is based on the same cause, or causes, of action, and not whether it pleads the same . .
See Also – Republic of India v India Steamship Co Ltd (Indian Endurance and Grace (No 2) CA 1-May-1996
An action against ship in rem prevents a personal action against the owner; there would be a risk of double jeopardy. . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 September 2021; Ref: scu.88741

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 under their contract.
[1939] AC 332
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.
Updated: 25 August 2021; Ref: scu.230251

Gaudiya Mission and Others v Kamalaksha Das Brahmachary: ChD 14 Mar 1997

There was a dispute as to the management and ownership of the London Temple of the plaintiff, a Vaishnava religious sect in India.
Held: The proceedings were charity proceedings within section 33(8), because they are proceedings brought under the Court’s jurisdiction in respect of trusts in relation to the administration of a trust for charitable purposes. A foreign registered charity operating in UK is subject to Charities Act jurisdiction. The court found that the plaintiff was a Charity, and that the Attorney-General should be joined.
David Oliver QC
Times 01-Apr-1997
Charities Act 1993 33(2) 33(8) 96(1)
England and Wales
Cited by:
Appeal from – Gaudiya Mission and others v Brahmachary CA 30-Jul-1997
The High Court had found the plaintiff to be a charity, and ordered the Attorney-General to be joined in. The A-G appealed that order saying that the plaintiff was not a charity within the 1993 Act. The charity sought to spread the Vaishnava . .

Lists of cited by and citing cases may be incomplete.
Updated: 24 August 2021; Ref: scu.80771

Marubeni Hong Kong and South China Ltd v Mongolian Government: ComC 12 Mar 2004

The court dismissed a claim for money owed by the Mongolian government based upon a letter of guarantee issued by the ministry of finance.
Held: The English court would not seek to adjudicate upon the cabinet meetings of friendly powers.
Cresswell J
[2004] EWHC 472 (Comm), Times 14-May-2004, [2004] 2 Lloyd’s Rep 198
Bailii
England and Wales
Cited by:
Appeal from – Marubeni Hong Kong and South China Ltd v Ministry of Finance of Mongolia CA 13-Apr-2005
A letter was written by the Mongolian Ministry of Finance guaranteeing payment for textile plant and machinery to be supplied to a Mongolian company. A letter from the justice minister confirmed the authority of the finance minister to sign the . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 August 2021; Ref: scu.194721

Heine v Reemtsma Cigarettenfabriken GmbH: 14 Nov 2003

(Second Chamber for Civil Matters of the Arnsberg Regional Court, Germany) The Plaintiff claimed damages and compensation for pain due to harm to his health from smoking cigarettes manufactured by the Defendant. He also sought information about the addition of addiction-promoting substances and a finding with regard to consequential damages. He cited the Defendant’s failure to provide warnings, product manipulation and a fundamental flaw in the cigarette product.
Held: There was no liability from the point of view of producer liability due to a fault in construction or instruction: ‘There is no construction fault in cigarettes. Cigarettes are not a faulty product, in spite of the health risks arising from their consumption. The dangers arising from this have indisputably been known to consumers and the Plaintiff for a long time and were consciously accepted. Everyone knows that in the long term smoking can lead to serious, potentially even fatal harm to health, that it can lead to addiction which makes it hard to stop smoking. Consumers cannot justifiably expect that cigarettes are constructed in such a way that they do not give rise to these dangers. For instance, in the jurisdiction which this chamber follows it has long been recognised that the producer does not have to avert dangers which are typically linked with the use of a product and known to the users or recognised and accepted by them […]. The decisive aspect therefore is that smokers are responsible for their own acts. They must themselves bear the consequences of their independent behaviour and cannot pass them on to the cigarette manufacturers.’ and ‘The Defendant has also not committed a so-called instruction fault by neglecting warnings on his products. The Plaintiff did not concretely assert that the Defendant had not met the legal duty of information and this is not evident. There are no further duties of information for the Defendant. . . The manufacturer of a product must only indicate the most important features. He must not meet any special duties of information if certain product risks are generally known. . . However, all risks linked with the consumption of cigarettes have been known to the consumers for a long time. This also includes the possible addictive effect of cigarette consumption. This does not concern special knowledge – such as how health is harmed by cigarette consumption. Therefore the judiciary has basically unanimously rejected a further duty of information […]. Thus there does not have to be separate information about an allegedly addiction-increasing effect of additives. Because the effect of these substances, i.e. in lay terms that smoking is addictive – as always – is not news to the consumer.’
2 O 294/02
England and Wales
Cited by:
Cited – McTear v Imperial Tobacco Ltd OHCS 31-May-2005
The pursuer sought damages after her husband’s death from lung cancer. She said that the defenders were negligent in having continued to sell him cigarettes knowing that they would cause this.
Held: The action failed. The plaintiff had not . .

Lists of cited by and citing cases may be incomplete.
Updated: 10 August 2021; Ref: scu.226701

The Bodo Community and Others v The Shell Petroleum Development Company of Nigeria Ltd: TCC 28 Mar 2014

Claims for compensation by 11,000 or more individual inhabitants of an area in the Niger Delta known broadly as the Bodo Community. There are a large number of claims which have been brought together in group litigation, and the matter was transferred to the TCC last year. These claims are for damages and compensation, both at ‘common law’, and I use that term in parenthesis at this stage, and also under statute in Nigeria.
[2014] EWHC 958 (TCC)
Bailii
England and Wales

Updated: 10 August 2021; Ref: scu.523591

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 referred, in place of so much discrepancy of opinion, the question would still remain, how far the law as stated by the publicists had received the assent of the civilized nations of the world. For writers on international law, however valuable their labours may be in elucidating and ascertaining the principles and rules of law, cannot make the law. To be binding, the law must have received the assent of the nations who are to be bound by it. This assent may be express, as by treaty or the acknowledged concurrence of governments, or may be implied from established usage . . ‘ and
‘Nor, in my opinion, would the clearest proof of unanimous assent on the part of other nations be sufficient to authorize the tribunals of this country to apply, without an Act of Parliament, what would practically amount to a new law. In so doing we should be unjustifiably usurping the province of the legislature. The assent of nations is doubtless sufficient to give the power of parliamentary legislation in a matter otherwise within the sphere of international law; but it would be powerless to confer without such legislation a jurisdiction beyond and unknown to the law, such as that now insisted on, a jurisdiction over foreigners in foreign ships on a portion of the high seas.’
The prisoner was indicted at the Central Criminal Court for manslaughter. He was a foreigner and in command of a foreign ship, passing within three miles of the shore of England on a voyage to a foreign port; and whilst within that distance his ship ran into a British ship and sank her, whereby a passenger on board the latter ship was drowned. The facts of the case were such as to amount to manslaughter by English law.
Held: By the majority of the Court (Cockburn, C.J., Kelly, C.B., Bramwell, J.A., Lush and Field, JJ., Sir R. Phiilimore, and Pollock, B.; Lord Coleridge, CJ, Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ., dissenting), that the Central Criminal Court had no jurisdiction to try the prisoner for the offence charged.
By the whole of the majority of the Court, on the ground that, prior to 28 Hen. 8, c. 15, the admiral had no jurisdiction to try offences by foreigners on board foreign ships, whether within or without the limit of three miles from the shore of England; that that and the subsequent statutes only transferred to the Common Law Courts and the Central Criminal Court the jurisdiction formerly possessed by the admiral; and that, therefore, in the absence of statutory enactment, the Central Criminal Court had no power to try such an offence.
By Kelly, C.B., and Sir R. Phiilimore, also, on the ground that, by the principles of international law, the power of a nation over the sea within three miles of its coasts is only for certain limited purposes; and that Parliament could not, consistently with those principles, apply English criminal law within those limits.
Held, contra, by Lord Coleridge, C.J., Brett and Amphlett, JJ.A., Grove, Denman, and Lindley, JJ., on the ground that the sea within three miles of the coast of England is part of the territory of England; that the English criminal law extends over those limits; and the admiral formerly had, and the Central Criminal Court now has, jurisdiction to try offences there committed although on board foreign ships.
By Lord Coleridge, C.J., and Denman, J., on the ground that the prisoner’s ship having run into a British ship and sank it, and so caused the death of a passenger on board the latter ship, the offence was committed on board a British ship, and, therefore, the Central Criminal Court had jurisdiction.
Cockburn CJ
(1876) 2 Ex D 63, (1876-1877) 2 ExD 63, [1876] UKLawRpExch 73, [1876] UKLawRpExch 73, (1876-1877) 2 ExD 63
Cmmonlii
England and Wales
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 . .
Cited – Regina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .

Lists of cited by and citing cases may be incomplete.
Updated: 07 August 2021; Ref: scu.220674

Generalno Konsulstvo Na Republika Bulgaria (Judicial Cooperation In Civil Matters – Determination of International Jurisdiction of The Courts of A Member State – Judgment): ECJ 3 Jun 2021

Reference for a preliminary ruling – Judicial cooperation in civil matters – Regulation (EU) No 1215/2012 – Determination of international jurisdiction of the courts of a Member State – Article 5(1) – Employee residing in a Member State – Contract concluded with a consular representation of that Member State in another Member State – Functions of the employee – No exercise of public powers
C-280/20, [2021] EUECJ C-280/20, ECLI:EU:C:2021:443
Bailii
European

Updated: 07 August 2021; Ref: scu.664283

General Dynamics United Kingdom Ltd v The State of Libya: CA 3 Jul 2019

Sir Terence Etherton MR, Longmore, Flaux LJJ
[2019] EWCA Civ 1110, [2019] WLR(D) 382
Bailii, WLRD
State Immunity Act 1978
England and Wales

Updated: 06 August 2021; Ref: scu.639491

Entores Ltd v Miles Far East Corporation: CA 1955

The plaintiff traded from London, and telexed an offer to purchase cathodes to a company in Holland, who signified their acceptance by return, again by telex. Entores later wanted to sue the defendant, the parent company of the Dutch party. It was denied that a contract had come into existence within the UK jurisdiction. Application was now made for leave to serve notice of a writ out of the jurisdiction on the grounds that the action was brought to recover damages for breach of a contract made within the jurisdiction or by implication to be governed by English law. The Plaintiffs were an English company. The Defendants were an American corporation.
Held: The resultant contract was made in, and was actionable in, London.
The rule about instantaneous communications between the parties is different from the rule about the post. The contract is only complete when the acceptance is received by the offeror; and the contract is made at the place where the acceptance is received. Lord Denning said: ‘The contract is only complete when the acceptance is received by the offeror’.
An agreement made in one country and amended in another should not be regarded as having been made in the second country.
Denning LJ said: ‘In a matter of this kind however it is very important the countries of the world should have the same rule. I find that most of the European countries have substantially the same rules as that I have stated’.
Denning, Birkett, Parker LJJ
[1955] 2 All ER 394, [1955] 2 QB 327, [1955] EWCA Civ 3, [1955] 3 WLR 48, [1955] 1 Lloyds Rep 511, 99 Sol Jo 384
Bailii
England and Wales
Citing:
Considered – Carlill v Carbolic Smoke Ball Co CA 7-Dec-1892
Carlill_CarbolicCA1893
The defendants advertised ‘The Carbolic Smoke Ball,’ in the Pall Mall Gazette, saying ‘andpound;100 reward will be paid by the Carbolic Smoke Ball Company to any person who contracts the increasing epidemic influenza, colds, or any disease caused by . .
Not Supported – Newcomb and Another v De Roos 5-Nov-1859
. .
Cited – Adams v Lindsell KBD 5-Jun-1818
No Contract by Post until Acceptance Received
The defendant sent his offer of wool for sale to the plaintiff by post. The plaintiff’s acceptance was at first misdirected. Before receiving the reply the defendant had sold the wool elsewhere, but this was only after he would have received the . .

Cited by:
Cited – BP Exploration Co (Libya) Ltd v Hunt 1976
The fact that the contract was governed by English law was the predominating factor to be borne in mind when deciding jurisdiction.
The court should be careful before describing as non-disclosure as material not included in an affidavit in . .
Cited – Four Seasons Holdings Incorporated v Brownlie SC 19-Dec-2017
The claimant and her family were in a car crash while on holiday in Egypt. The claimant’s husband and his daughter died. The holiday had been booked in England and the car excursion booked in advance from England. The hotel operator was incorporated . .

Lists of cited by and citing cases may be incomplete.
Updated: 04 August 2021; Ref: scu.183109

O, Regina v: CACD 2 Sep 2008

The defendant agirl in her mid teens, appealed against her conviction for carrying a false identity card.
Held: The appeal was not opposed. The United Kingdom having signed the Convention on Action against People Trafficking was bound to implement its provisions by virtue of article 18 of the Vienna Convention. It is incumbent on those undertaking prosecutions which may be affected by duties under such a convention to apply provisions as necessary. The defendant was herself a victim of trafficking. In this case also the defendant’s lawyers had material which should have been brought to the attention of the court. The circumstances here were shameful.
Lord Justice Laws, Mr Justice Jack and Sir Charles Gray
[2008] EWCA Crim 2835
Bailii, Times
Convention on Action against Trafficking in Human Beings (Council of Europe Treaty Series 197, Vienna Convention on the Law of Treaties 18
England and Wales
Cited by:
Cited – LM and Others v Regina; Regina v M(L), B(M) and G(D) CACD 21-Oct-2010
Each defendant appealed saying that being themselves the victims of people trafficking, the prosecutions had failed to take into account its obligations under the Convention.
Held: Prosecutors had ‘a three-stage exercise of judgment. The first . .
Cited – N, Regina v CACD 20-Feb-2012
n_r1CACD2012
The court considered the offence of child trafficking. The defendants had been the victims of such offences and used for managing cannabis production. It was argued that neither defendant should have been prosecuted.
Held: The appeals failed. . .

Lists of cited by and citing cases may be incomplete.
Updated: 03 August 2021; Ref: scu.278953

Re IG (Child Abduction Habitual Residence Article 13B): CA 27 Jul 2021

[2021] EWCA Civ 1123
Bailii
England and Wales

Updated: 31 July 2021; Ref: scu.666178

Sarkandi and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs: Admn 11 Jul 2014

The claimants had wrongly been listed as sanctions breakers, and now challenged the respondent’s refusal to remove them from the related list.
Bean J
[2014] EWHC 2359 (Admin)
Bailii
England and Wales
Cited by:
Appeal from – Sarkandi and Others, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 14-Jul-2015
Appeal from order allowing use of closed material procedures under section 6 of the 2013 Act.
Richards LJ said: ‘The 2013 Act is one of those in which Parliament has stipulated that a closed material procedure may be permitted by the court. It . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.534119

Khaled and Another v The Secretary of State for Foreign and Commonwealth Affairs and Others: Admn 15 Jun 2017

The Claimants were designated by the UN Sanctions Committee in 2007 and 2008 respectively as individuals suspected of being associated with Al-Qaida and the Libyan Islamic Fighting Group, and of being involved in terrorism. They sought judicial review of the decisions following that designation.
Jay J
[2017] EWHC 1422 (Admin)
Bailii
Justice and Security Act 2013
England and Wales
Cited by:
Cited – Belhaj and Another v Director of Public Prosecutions and Another SC 4-Jul-2018
Challenge to decision not to prosecute senior Intelligence Service officials for alleged offences in connection with his unlawful rendition and mistreatment in Libya. The issue here was whether on the hearing of the application for judicial review, . .

Lists of cited by and citing cases may be incomplete.
Updated: 30 July 2021; Ref: scu.588884

Shagang Shipping Company Ltd v HNA Group Company Ltd: CA 23 Jul 2018

Appeal from finding that a contract award had not been obtained by bribery. The defendant said that the confessions of bribery had been extracted by torture and appealed a finding that the contract was enforceable.
Held: The appeal succeeded. The judge failed to ask and answer the correct legal question as to what weight should be accorded to the confession evidence and failed to take all the appropriate matters into account and to exclude irrelevant matters in considering whether the alleged bribe was paid. As a matter of law, if an allegation that a statement was made as a result of torture has not been proved on the balance of probabilities, a court when estimating the weight to be given to the statement as hearsay evidence in civil proceedings must entirely disregard the possibility that the statement was obtained by torture, even if on the evidence given at trial the court considers this to be a serious possibility which it cannot rule out.
The judge’s decision was ‘unsustainable’: ‘The judge did not follow the logical steps necessary to reach a proper evaluation of the admissible evidence. He failed to ask and answer the correct legal question as to what weight should be accorded to the admissions evidence. The judge ought to have said why he was unable to place any reliance on the admissions, if that was his view. The judge also fell into legal error in failing to take all the appropriate matters into account in deciding the crucial bribery issue. As we have also said, the judge failed to exclude irrelevant matters (including his lingering doubt as to whether the admissions were procured by torture) in considering whether the alleged bribe was paid.’
Sir Geoffrey Vos, Chancellor of the High Court, Lord Justice Newey, and Dame Elizabeth Gloster DBE
[2018] EWCA Civ 1732
Bailii
England and Wales
Citing:
Appeal from – Shagang Shipping Company Ltd v HNA Group Company Ltd ComC 16-May-2016
It was said that a contract had been procured only by bribery. The defendant said that the so called confessions had been obtained by torture, and were inadmissible. No one with first-hand knowledge of the alleged bribery or torture gave evidence . .

Cited by:
Appeal from – Shagang Shipping Company Ltd v HNA Group Company Ltd SC 5-Aug-2020
Allegations had been made that a contract had been procured by bribery. The other party said that the admissions of bribery had been extracted by torture and were inadmissible. The CA had decided that the unproven possibility that it was obtained by . .

Lists of cited by and citing cases may be incomplete.
Updated: 29 July 2021; Ref: scu.620479

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 failed. The hearing was almost entirely an open hearing.
Maurice Kay VP LJ, Elias LJ, Pitchford LJ
[2011] EWCA Civ 1, [2012] QB 101, [2011] Lloyd’s Rep FC 168, [2011] 3 WLR 714, [2011] UKHRR 208, [2011] HRLR 13, [2011] 2 All ER 802
Bailii
Financial Restrictions (Iran) Order 2009, Counter-Terrorism Act 2008
England and Wales
Citing:
Appeal from – 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 . .

Cited by:
Appeal from – 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 . .
Appeal from – 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 . .

Lists of cited by and citing cases may be incomplete.
Updated: 25 July 2021; Ref: scu.427980

L R Avionics Technologies Ltd v The Federal Republic of Nigeria and Another: ComC 15 Jul 2016

Whether activities outsourced by a state retained immunity under the 1978 Act.
Males J
[2016] EWHC 1761 (Comm)
Bailii
State Immunity Act 1978
England and Wales

Updated: 24 July 2021; Ref: scu.567266

AF v M B-F: FD 22 Feb 2008

The father sought the return of the two children to Poland after they had been brought to England by the mother. She said that she had come to seek work as a dentist, and had been unable to support the family in Poland. She said that her Polish solicitor had advised her that the effect of court orders in Poland would not restrict her actions. The father said that the contact rights given by the polish Court amounted to rights of custody.
Held: The father’s rights included ‘parental authority’. The court took this to ‘award parental authority to the mother in the sense of responsibility for the day to day care and problems of the two children while providing/ reserving to the father restricted (parental) authority to ‘co-decide’ with the mother ‘vital problems’ in connection with upbringing, education and medical treatment’ ‘ and ‘the father’s (restricted) custody right is to be found in his right of veto and not in a mere right to apply to the court.’ The removal of the children to England was in breach of the father’s rights of custody. The wife had not shown acquiescence. The father pointed toa report saying that the mother had poisoned the children’s minds against him, but the child welfare officer found the objections genuine. The father had not challenged three issues of substance supporting the children’s views. The deciding factor was the contrast between the success of the children in their schooling in England and in Poland. No order for return was to be made.
Sir Mark Potter P
[2008] EWHC 272 (Fam), [2008] Fam 75, [2008] 2 FLR 1239, [2008] 3 WLR 527, [2008] Fam Law 966, [2008] 2 FCR 120
Bailii
Child Abduction and Custody Act 1985
England and Wales
Citing:
Cited – C v C (Minor:Abduction: Rights of Custody Abroad) CA 1989
The English mother married the Australian father in Australia and bore their child their. After divorce both parents had custody with no right to remove the child. The mother brought the child to England without the father’s consent.
Held: The . .
Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Cited – Re H, H v H (Child Abduction: Acquiescence) HL 10-Apr-1997
The mother and father were orthodox Jews. The mother brought the children to England from Israel against the father’s wishes. She said that he had acquiesced in their staying here by asking for them to be returned to Israel temporarily. The father . .
Cited – S v S (Child abduction) (Child’s views) 1992
Where a parent objects to the child being returned under the Act to a home country on the basis of the child’s objections, if the objections result solely from a desire to remain with the abducting parent, who in turn does not wish to return, then . .
Cited – Re M (A Child) CA 27-Mar-2007
The Court reviewed the questions which need to be explored when considering a defence of Child’s Objections to a claim under the Act for their return to a home country. It shouls ask:
(1) Are the objections to return made out? In this connection . .
Cited – Re M and another (Children) (Abduction; Rights of Custody) HL 5-Dec-2007
Three children had been brought from Zimbabwe by their mother against the wishes of the father and in breach of his rights there. The mother appealed an order for their return.
Held: The mother’s appeal was allowed. The House had to consider . .
Cited – Klentzeris v Klentzeris CA 10-May-2007
In the exercise of a discretion under the Hague Convention in a child’s objections case, an additional test or requirement of ‘exceptionality’ is appropriate when the Court comes to weigh the policy considerations underlying the Convention against . .
Cited – Cannon v Cannon CA 19-Oct-2004
The mother had brought the child to the UK wrongfully. She had hidden their identity for more than a year. Upon discovering her, the father came to England and began proceedings for the child’s return to the US.
Held: Because the child’s . .
Cited – Zaffino v Zaffino 2006
The court considered the treatment of a child’s objections to being returned to a home country by an order under the Act. . .
Cited – Vigreux v Michel and Another CA 18-May-2006
The mother sought the return of her children to France. Her summons had been dismissed after balancing the policy of the Convention against the strength of the child’s objection to return together with certain welfare considerations. The . .

Lists of cited by and citing cases may be incomplete.
Updated: 21 July 2021; Ref: scu.264661

General Dynamics United Kingdom Ltd v State of Libya: SC 25 Jun 2021

Commercial interactions with foreign states are governed by the State Immunity Act 1978 (‘SIA’). This appeal raises questions about how to enforce an arbitral award (the ‘Award’) against a foreign state within this framework, namely whether: 1. the SIA requires service of certain documents to the state concerned through the Foreign and Commonwealth Office (‘FCO’);
2. an arbitration claim form is within the category of documents required by section 12(1) of the SIA to be served on a state through the FCO; and
3. in exceptional circumstances, the court can make use of certain rules of English civil procedure (which govern litigation proceedings) to dispense with such service
Lord Lloyd-Jones, Lord Briggs, Lady Arden, Lord Burrows, Lord Stephens
[2021] UKSC 22, [2021] WLR(D) 363, [2021] 3 WLR 231
Bailii, WLRD, Bailii Press Summary, Bailii Issues and Facts
England and Wales

Updated: 17 July 2021; Ref: scu.665997

Lumley v Gye (2): 14 Jan 1854

A commission, under stat. 1 W. 4, c. 22, S. 4, issued at the instance of the defendant, directed to an English barrister, to examine witnesses in Germany. The witness, a Prussian subject, being at Berlin, the commissiotier went thither, but learned that, by the Prussian law, an oath could be administered to a Prussian subject only by a Prussian judge, or some one authorized by a Prussian Court. On the petition of the cornmissioner, a Prussian Court authorized D., a Prussian to administer the oath. On the commission beirig opened, D. insisted on assuming the controul of tbe whole examination, and rejected a question put conformably to the English law, on the ground that it could not be put conformably to the Prussian law. The parties then refused to act further under the commission. The commissioner returned these facts: and application was then made, by tha defendant, for a new commission, to be directed to a Prussiam court or judge, without the clause requiring the commissioner to be sworn. From the affidavit in support of the rule, the above facts appeared ; and it appeared, further, from the opinion of a Prussian lawyer, that the Prussian rules of evidence were different from the English, especilly that examination and cross-examination by counsel was not permitted .
[1854] EngR 95, (1854) 3 El and Bl 114, (1854) 118 ER 1083
Commonlii
England and Wales
Citing:
See Also – Lumley v Gye 1853
Inducing breach of contract is a Tort
An opera singer (Miss Wagner) and the defendant theatre owner were joint wrongdoers. They had a common design that the opera singer should break her contract with the plaintiff theatre owner, refuse to sing in the plaintiff’s theatre and instead . .

These lists may be incomplete.
Updated: 16 July 2021; Ref: scu.292952