Category: Torts – Other

Loeschman v Machin: 1818

If a hirer of the goods sends them to an auctioneer to be sold, he is guilty of a conversion of the goods; and if the auctioneer afterwards refuses to deliver them to the owner, unless he will pay a sum of money which he claims, he is also guilty of a conversion.

Judges:

Abbott J

Citations:

(1818) 2 Stark 311, [1818] EngR 36, (1818) 171 ER 656

Links:

Commonlii

Cited by:

Cited – Marcq v Christie, Manson and Woods Ltd CA 23-May-2003
The claimant’s stolen painting was put up for sale by the defendant. On being withdrawn, they returned it to the person who had brought it in. The claimant sought damages.
Held: There was no reported case in which a court has had to consider . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Agency

Updated: 29 April 2022; Ref: scu.182761

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 racial discrimination, but the only element of her claim which succeeded was of unfair dismissal, rejecting others saying that it had no jurisdiction. The defendants argued that the contract was unlawful, asking the Court: ‘In what circumstances should the defence of illegality defeat a complaint by an employee that an employer has discriminated against him by dismissing him contrary to section 4(2)(c) of the Race Relations Act 1976? ‘
Held: The claimant’s appeal was allowed. The defence of illegality of the employment of an illegal immigrant did not operate to defeat a claim of the tort of discrimination.
Lord Wilson set out a definition of human trafficking: ‘The accepted international definition of trafficking is contained in the UN Protocol to Prevent, Suppress and Punish Trafficking in Persons (‘the Palermo Protocol’) signed in 2000 and ratified by the UK on 9 February 2006. Article 3 provides:
‘(a) ‘Trafficking in persons’ shall mean the recruitment, transportation, transfer, harbouring or receipt of persons, by means of the threat or use of force or other forms of coercion, of abduction, of fraud, of deception, of the abuse of power or of a position of vulnerability . . for the purpose of exploitation. Exploitation shall include, at a minimum, . . sexual exploitation, forced labour or services, slavery or practices similar to slavery, servitude or the removal of organs;
(b) The consent of a victim of trafficking in persons to the intended exploitation set forth in subparagraph (a) of this article shall be irrelevant where any of the means set forth in subparagraph (a) have been used;
(c) The recruitment, transportation, transfer, harbouring or receipt of a child for the purpose of exploitation shall be considered ‘trafficking in persons’ even if this does not involve any of the means set forth in subparagraph (a) of this article’.’
Lord Wilson said: ‘The defence of illegality rests upon the foundation of public policy. ‘The principle of public policy is this . . ‘ said Lord Mansfield by way of preface to his classic exposition of the defence in Holman v Johnson (1775) 1 Cowp 341, 343. ‘Rules which rest upon the foundation of public policy, not being rules which belong to the fixed or customary law, are capable, on proper occasion, of expansion or modification’: Maxim Nordenfelt Guns and Ammunition Co Nordenfelt [1893] 1 Ch 630, 661 (Bowen LJ). So it is necessary, first, to ask ‘What is the aspect of public policy which founds the defence?’ and, second, to ask ‘But is there another aspect of public policy to which application of the defence would run counter?”
Lord Hughes said: ‘When a court is considering whether illegality bars a civil claim, it is essentially focussing on the position of the claimant vis-a-vis the court from which she seeks relief. It is not primarily focusing on the relative merits of the claimant and the defendant. It is in the nature of illegality that, when it succeeds as a bar to a claim, the defendant is the unworthy beneficiary of an undeserved windfall. But this is not because the defendant has the merits on his side; it is because the law cannot support the claimant’s claim to relief. ‘
Lord Toulson’s concluded generally:
‘Looking behind the maxims, there are two broad discernible policy reasons for the common law doctrine of illegality as a defence to a civil claim. One is that a person should not be allowed to profit from his own wrongdoing. The other, linked, consideration is that the law should be coherent and not self-defeating, condoning illegality by giving with the left hand what it takes with the right hand.’
Lord Toulson set out how the courts should approach the question:
‘So how is the court to determine the matter if not by some mechanistic process? In answer to that question I would say that one cannot judge whether allowing a claim which is in some way tainted by illegality would be contrary to the public interest, because it would be harmful to the integrity of the legal system, without (a) considering the underlying purpose of the prohibition which has been transgressed, (b) considering conversely any other relevant public policies which may be rendered ineffective or less effective by denial of the claim, and (c) keeping in mind the possibility of overkill unless the law is applied with a due sense of proportionality. We are, after all, in the area of public policy. That trio of necessary considerations can be found in the case law. . . The courts must obviously abide by the terms of any statute, but I conclude that it is right for a court which is considering the application of the common law doctrine of illegality to have regard to the policy factors involved and to the nature and circumstances of the illegal conduct in determining whether the public interest in preserving the integrity of the justice system should result in denial of the relief claimed. I put it in that way rather than whether the contract should be regarded as tainted by illegality, because the question is whether the relief claimed should be granted.’
Lord Toulson brought the elements together: ‘The essential rationale of the illegality doctrine is that it would be contrary to the public interest to enforce a claim if to do so would be harmful to the integrity of the legal system (or, possibly, certain aspects of public morality, the boundaries of which have never been made entirely clear and which do not arise for consideration in this case). In assessing whether the public interest would be harmed in that way, it is necessary (a) to consider the underlying purpose of the prohibition which has been transgressed and whether that purpose will be enhanced by denial of the claim, (b) to consider any other relevant public policy on which the denial of the claim may have an impact and (c) to consider whether denial of the claim would be a proportionate response to the illegality, bearing in mind that punishment is a matter for the criminal courts. Within that framework, various factors may be relevant, but it would be a mistake to suggest that the court is free to decide a case in an undisciplined way. The public interest is best served by a principled and transparent assessment of the considerations identified, rather by than the application of a formal approach capable of producing results which may appear arbitrary, unjust or disproportionate.’

Judges:

Lady Hale, Deputy President, Lord Kerr, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2014] UKSC 47, [2014] ICR 847, [2014] Eq LR 559, [2014] 4 All ER 595, [2014] 1 WLR 2889, [2014] IRLR 811, [2014] WLR(D) 353, UKSC 2012/0188

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Jurisdiction:

England and Wales

Citing:

At EAT – Allen (Nee Aboyade-Cole) v Hounga and Another EAT 31-Mar-2011
EAT JURISDICTIONAL POINTS – Fraud and illegality
The Claimant brought claims for unfair dismissal, breach of contract, unpaid wages and unpaid holiday pay as well as racial discrimination arising out of her . .
At CA – Hounga v Allen and Another CA 15-May-2012
. .
Cited – Boulter v Clark 1747
A party to an illegal prize fight who is damaged in the conflict cannot sue for assault . .
Cited – National Coal Board v England HL 1954
The plaintiff sought damages after being injured when a co-worker fired a shot. The employee however had himself coupled the detonator to the cable rather than leaving it to the shotfirer, and had his cimmitted a criminal offence. He had been found . .
Cited – Saunders v Edwards CA 24-Mar-1986
The parties had agreed for the sale and purchase of land and chattels, but had deliberately misdescribed the apportionment so as to reduce tax liability. The purchasers then brought an action for misrepresentation. The vendor replied that the action . .
Cited – Howard v Shirlstar Container Transport Ltd CA 1990
The parties contracted for the recovery from Nigeria of an aircraft owned by the defendants which was being detained by the Nigerian authorities at Lagos. Under the contract, the plaintiff was entitled to recover a fee of andpound;25,000 if he . .
Cited – Cross v Kirkby CA 18-Feb-2000
The claimant was a hunt saboteur and the defendant a local farmer. The claimant shouted to the defendant ‘You’re fucking dead’ and jabbed him in the chest and throat with a broken baseball bat. In order to ward off further blows, the defendant . .
Cited – Hall v Woolston Hall Leisure Limited CA 23-May-2000
The fact that an employment contract was tainted with illegality of which the employee was aware, did not deprive the employee of the possibility of claiming rights which were due to her under a statute which created rights associated with but not . .
Cited – Enfield Technical Services Ltd v Payne; Grace v BF Components Ltd EAT 25-Jul-2007
EAT Unfair dismissal – Exclusions including worker/jurisdiction
These two appeals consider the circumstances in which contracts will be considered illegal so as to preclude an employee from taking claims . .
Cited – Enfield Technical Services Ltd v Payne and Another CA 22-Apr-2008
The appellant company appealed dismissal of their defence to a claim for unfair dismissal that the employment contract was tainted with illegality. The EAT had heard two cases with raised the question of the effect on unfair dismissal claims of . .
Cited – V v Addey and Stanhope School CA 30-Jul-2004
The respondent resisted a claim of unfair dismissal and race discrimination on the basis that the employment contract was illegal since the claimant was an immigrant and unable to work without a work permit.
Held: The Court of Appeal upheld a . .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
A claim was made for the price of goods which the plaintiff sold to the defendant in Dunkirk, knowing that the defendant’s purpose was to smuggle the goods into England. The plaintiff was met with a defence of illegality.
Held: The defence . .
Cited – Hall v Hebert 29-Apr-1993
(Canadian Supreme Court) After they had been drinking heavily together, Mr Hebert, who owned a muscle car, allowed Mr Hall to drive it, including initially to give it a rolling start down a road on one side of which there was a steep slope. The car . .
Cited – Regina v Lyons, Parnes, Ronson, Saunders HL 15-Nov-2002
The defendants had been convicted on evidence obtained from them by inspectors with statutory powers to require answers on pain of conviction. Subsequently the law changed to find such activity an infringement of a defendant’s human rights.
Cited – Relaxion Group plc v Rhys-Harper; D’Souza v London Borough of Lambeth; Jones v 3M Healthcare Limited and three other actions HL 19-Jun-2003
The court considered whether discriminatory acts after the termination of employment were caught by the respective anti-discrimination Acts. The acts included a failure to give proper references. They pursued claims on the basis of victimisation . .
Cited – Siliadin v France ECHR 26-Jul-2005
(French Text) A 15-year-old girl, had been brought from Togo to France and made to work for a family without pay for 15 hours a day. She had been held in servitude and required to perform forced labour
Held: France had violated article 4 by . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered psychiatric injury in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had later gone on to kill another person, and he had been detained under section 41. . .
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 – 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 – CN v The United Kingdom ECHR 13-Nov-2012
The claimant said that having been raped repeatedly in Uganda, she had fled to England, where her passport was taken and she was forced to work and her earnings taken, and she was held captive. On escaping, her application for asylum was refused. . .
Cited – L and Others v The Children’s Commissioner for England and Another CACD 21-Jun-2013
Even where it has been clearly established that a defendant had been trafficked that should not provide him with immunity from prosecution for a criminal offence. Lord Judge CJ explained that: ‘it has not, however, and could not have been argued . .

Cited by:

Cited – Reyes and Another v Al-Malki and Another CA 5-Feb-2015
The claimants wished to make employment law claims alleging, inter alia, that they had suffered racial discrimination and harassment, and had been paid less than the national minimum wage aganst the respondents. They had been assessed as having been . .
Cited – Les Laboratoires Servier and Another v Apotex Inc and Others SC 29-Oct-2014
Ex turpi causa explained
The parties had disputed the validity a patent and the production of infringing preparations. The english patent had failed and damages were to be awarded, but a Canadian patent remained the defendant now challenged the calculation of damages for . .
Cited – Jetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
Cited – Taiwo and Another v Olaigbe and Others SC 22-Jun-2016
The claimants had been brought here illegally to act as servants for the defendants. They were taken advantage of and abused. They made several claims, but now appealed against rejection of their claims for discrimination. The court was asked . .
Cited – Henderson v Dorset Healthcare University NHS Foundation Trust CA 3-Aug-2018
Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Lists of cited by and citing cases may be incomplete.

Employment, Discrimination, Human Rights, Torts – Other

Updated: 29 April 2022; Ref: scu.535439

Downs v Chappell; Downs v Stephenson Smart (a Firm): CA 1996

The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against those prepared when deciding what the plaintiff would have done. In deceit the plaintiff need only first to establish that there had been a material fraudulent misrepresentation. Had the plaintiff known of the deceit he would not have purchased the business, and therefore damages were to be calculated on that basis. Once he became aware of the misrepresentation, they failed to act upon an offer of purchase, and that was their own act, and damages were adjusted accordingly. Changes in the market were too remote and were not to be awarded. It then fell to decide whether the the torts themselves caused the loss. Since here if the figures had been true, the plaintiffs could have financed the purchase, no windfall was created by the award.
Hobhouse LJ said: ‘The judge was wrong to ask how they [the representees] would have acted if they had been told the truth. They were never told the truth. They were told lies in order to induce them to enter into the contract. The lies were material and successful . . The judge should have concluded that the plaintiffs had proved their case on causation . .’

Judges:

Hobhouse LJ

Citations:

[1997] 1 WLR 426, [1996] 3 All ER 344, [1996] CLY 5689

Jurisdiction:

England and Wales

Citing:

Considered – Naughton v O’Callaghan 1990
Damages Award to Restore Plaintiff’s Poistion
In 1981 the plaintiffs had bought a thoroughbred yearling colt called ‘Fondu’ for 26,000 guineas. In fact a mistake had been made and its pedigree was not as represented. Its true pedigree made it suitable only for dirt track racing in the United . .
Approved – Doyle v Olby (Ironmongers) Ltd CA 31-Jan-1969
The plaintiff had been induced by the fraudulent misrepresentation of the defendant to buy an ironmonger’s business for 4,500 pounds plus stock at a valuation of 5,000 pounds. Shortly after the purchase, he discovered the fraud and started the . .

Cited by:

Cited – UCB Corporate Services Limited v Williams CA 2-May-2002
The wife of a borrower sought to defend a claim for possession of the property by the chargor. She claimed that he signature had been obtained by an equitable fraud.
Held: Undue influence occurred when improper means of persuasion were used to . .
Cited – AMEC Mining v Scottish Coal Company SCS 6-Aug-2003
The pursuers contracted to remove coal by opencast mining from the defender’s land. They said the contract assumed the removal first of substantial peat depositys from the surface by a third party. They had to do that themselves at substantial cost. . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Cited – Charter Plc and Another v City Index Ltd and others ChD 12-Oct-2006
An employee of the claimant had fraudulently spent several million pounds of the claimant’s money on personal bets through the defendant company. The claimant said that the defendants knew the origin of the funds and were liable to repay them. . .
Cited – Hayward v Zurich Insurance Company Plc SC 27-Jul-2016
The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Professional Negligence

Updated: 28 April 2022; Ref: scu.181210

Berry v British Transport Commission: CA 1961

The plaintiff had been prosecuted by the defendant for pulling the emergency cord on a train without proper cause. After acquittal and payment of part of her costs, she sued for malicious prosecution, saying the damages were the part of her defence costs not awarded. The defendant replied that this was not claimable loss.
Held: The award of costs included no element of compensation, and that therefore her claim stood.
Devlin said: ‘the rule of the law of damages that if costs were awarded in hostile civil litigation nothing beyond the taxed amount could be recovered by the successful party from the unsuccessful party rested on the presumption that the award of costs (as between party and party) gave compensation for the cost of litigation so far as the law allowed, and the reason for the rule was that the law could not permit the question of the amount of costs to be litigated a second time between the same parties in new proceedings; it was however a fiction that costs taxed between party and party were the same as costs reasonably incurred and the law should recognise that an assessment of damage and a taxation of party and party costs were two different things. The rule should not be extended to criminal cases, because the principles governing the award of costs in civil and criminal cases were not the same; for in criminal cases a successful defendant had no prima facie entitlement to an award of costs, as the prosecution was brought in the public interest, and an award of costs need not be directed to quantifying the damage and indemnifying the accused according to a conventional measure.’
A charge of a statutory offence punishable only by fine would not support an action for malicious prosecution unless the charge was such as to injure the ‘fair fame’ (that is, was necessarily and naturally defamatory) of the person charged.

Judges:

Devlin LJ

Citations:

(1962) 1 QB 306, [1961] 3 All ER 65, [1961] 3 WLR 450, 105 Sol Jo 587

Statutes:

Railways Act 1868

Jurisdiction:

England and Wales

Citing:

Appeal from – Berry v British Transport Commission QBD 1961
Although in civil cases extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in . .

Cited by:

Compared – Union Discount Company Ltd v Robert Zoller and Others, Union Cal Ltd CA 21-Nov-2001
The claimant had incurred costs in defending an action brought by the respondents in breach of an exclusive jurisdiction agreement. They appealed a judgement against them.
Held: The claim for the costs must succeed. The jurisdiction in which . .
Cited – Gregory v Portsmouth City Council CA 5-Nov-1997
The plaintiff councillor had been disciplined by the defendant for allegations. The findings were later overturned, and he now sought damages alleging malicious prosecution.
Held: The categories of malicious prosecution are closed, and it was . .
Cited – Botham v The Ministry of Defence QBD 26-Mar-2010
The claimant had been employed by the MOD. He was summarily dismissed for gross misconduct, and he was then placed on the list of persons unsuitable for work with children. He succeeded at the Tribunal in a claim for unfair and wrongful dismissal. . .
Cited – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Costs, Damages

Updated: 28 April 2022; Ref: scu.180971

Jacobsohn v Blake and Compton: 13 Jan 1843

Custom-house officers took possession of goods landed by the plaintiff for the purpose of examination and detained them upon a misapprehension that they were prohibited and liable to forfeiture. In an action for trespass, the defence was that, there having been no seizure by the officers, the action of trespass could not be maintained. The jury were directed that the goods having been legally in the possession of the defendants, and there having been no seizure by them, the action of trespass could not be maintained. That direction was upheld in the Court of Common Pleas.
Held: In order to entitle the plaintiff to maintain such an action [of trespass] there must have been an actual seizure of the plaintiff’s goods. There was no evidence of any act of trespass. There was no seizure whatever by the defendants. The goods were landed and taken possession of by the defendants in the discharge of their duty, for the purpose of their being examined. There was no evidence of any seizure or of any other act amounting to a trespass. There was no trespass in the first instance, or anything that could be called a seizure. The goods were taken by the plaintiff’s agent to the proper place for examination of them by the defendants in the regular discharge of their duty as custom-house officers. Upon their examination, all that the defendants did was, to detain them, till it could be ascertained whether or not they were liable to forfeiture. This is not an act of trespass.
Tindal CJ said: ‘[T]he defendants merely took possession of the goods, in the execution of their duty as custom-house officers, for the purpose of examination. When the goods were examined certain marks were found upon them, which induced the defendants to think they were prohibited; and they said they must detain them; and then, on a subsequent application on the part of the plaintiff for the delivery of the goods, the answer was that they were detained and would be prosecuted as seizures. It appears, therefore, that the defendants originally detained the goods under a real and honest doubt that they were subject to forfeiture: whether that doubt was well grounded, is not now the question. . . There has been no abuse of authority on their part. The goods remained, during the whole time of the examination, in the same custody in which they were, in the first instance, legally detained.’
Coltman J said: ‘The defendants were custom-house officers acting under an authority given them by law. It was their duty to examine the goods in question, in order to ascertain to what duty they were liable, or whether or not they were subject to forfeiture. If the goods had been afterwards detained by them for a time more than reasonable for the examination, that might have been an abuse of their authority so as to render them liable in another form of action. But it appears to me there is no ground for saying they did more than detain the goods for a reasonable time, in order that the question as to the liability of the goods to forfeiture might be submitted to the proper authorities.’

Judges:

Tindal CJ, Erskine J, Cresswell J

Citations:

(1844) 6 Man and G 919, 13 LJ CP 89, [1843] EngR 175, (1844) 6 Man and G 919, (1843) 134 ER 1164

Links:

Commonlii

Cited by:

Cited – Gora and others v Commissioners of Customs and Excise and others CA 11-Apr-2003
The appellants challenged decisions of the VAT and Duties Tribunal after seizure of their goods, and in particular whether the cases had been criminal or civil cases and following Roth, whether the respondent’s policy had been lawful and . .
Cited – Eastenders Cash and Carry Plc and Others, Regina (on The Application of) v Revenue and Customs SC 11-Jun-2014
Alcoholic drinks had been seized by the respondents pending further enquiries with a view to a possible forfeiture, then held and returned but only under court order. The company had complained that the detention of the goods was unlawful. The . .
Lists of cited by and citing cases may be incomplete.

Customs and Excise, Torts – Other

Updated: 28 April 2022; Ref: scu.181001

Lloyd v Director of Public Prosecutions: QBD 1992

Mr Lloyd had parked his car in a private car park with five large notices boards located at the entrance to and exit of this private car park positioned at eye-level for car drivers. All those notices warned that unauthorised vehicles would be immobilised. Mr Lloyd’s car was found clamped on his return. He contacted the security firm responsible for the clamping who required payment of andpound;25 to release Mr Lloyd’s car. Mr Lloyd refused to pay, but later returned and cut the two padlocks. Mr Lloyd’s defence when prosecuted was that he had a lawful excuse for damaging the padlocks, namely that a trespass was being committed to his car. He also argued that once he had returned to the car park and requested the removal of the clamp, any consent by him to the clamping of his car ceased, and even if the clamping of the car had not constituted a trespass up to that point it was a trespass thereafter. He appealed against his conviction for criminal damage.
Held: The appeal failed. As to criminal law only, the suggestion of lawful excuse was wholly untenable. At the worst he had suffered a civil wrong. The remedy for such wrongs is available in the civil courts. That is what they are there for. Self-help involving the use of force can only be contemplated where there is no reasonable alternative. Here, as in Stear -v- Scott, there was such an alternative. ‘The differences between the facts of that case and those of the present case are quite insufficient to my mind to make it distinguishable.’ The ancient remedies of self-help should be carefully scrutinised in the present day and certainly not extended.

Judges:

Nolan LJ, Connell J

Citations:

[1992] 1 All ER 982, [1992] RTR 215

Statutes:

Criminal Damage Act 1971 1(1) 592)(b)

Jurisdiction:

England and Wales

Cited by:

Cited – Vine v London Borough of Waltham Forest CA 5-Apr-2000
The act of wheel clamping a car which was unlawfully parked is a trespass to goods. To avoid an action for damages, the clamper must show that the car parker consented to the clamping. He can do so by showing, in accordance with established . .
Cited – Regina v Burns, Paul CACD 27-Apr-2010
The defendant appealed against his conviction for assault. He had picked up a sex worker, driven away, but then changed his mind, and forcibly removed her from the car when she delayed. He now argued that he had the same right at common law to . .
Cited – Chamberlain v Lindon Admn 18-Mar-1998
The appellant challenged the dismissal of his private prosecution of the defendant in destroying a new garden wall. The magistrates had found a lawful excuse in that the defendant said that the wall had been constructed to obstruct his private right . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Crime

Updated: 28 April 2022; Ref: scu.180659

Unilever Plc v Chefaro Proprietaries Ltd; Chiron Corp etc v Organon: CA 24 Nov 1994

The Court of Appeal gave guidance on what criteria are to be used by them for expediting appeals cases.
Glidewell LJ stated that what must be shown ito establish common design in an allegation of tort is that there are ‘facts from which an inference [of an agreement] could clearly and properly be drawn’.

Judges:

Glidewell LJ

Citations:

Times 28-Nov-1994, Independent 24-Nov-1994, [1994] FSR 135

Jurisdiction:

England and Wales

Cited by:

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 – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Torts – Other

Updated: 28 April 2022; Ref: scu.90056

Hunter and Others v Canary Wharf Ltd: QBD 20 Dec 1994

The plaintiff made two claims arising from the construction works involvd in the Canary Wharf development. First that the building now prevented her TV signal reception, and second that the works had released substantial volumes of dust so as to prevent her enjoyment of her property under the rule in Rylands v Fletcher.
Held: Interference with television reception is capable of constituting an actionable nuisance, but a right of exclusive possession of land is necessary in each case to entitle a person to sue in private nuisance. Claims were made by a wide range of people, with different interestst in land. The right to sue in private nuisance did not extend to include so wide a class of plaintiffs, but was limited to those with a right to exclusive possession of the relevant property.

Judges:

Judge Havery QC

Citations:

Independent 20-Dec-1994

Jurisdiction:

England and Wales

Citing:

Cited – Rylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

Cited by:

Appeal from – Hunter and Others v Canary Wharf Ltd; Same v London Docklands Development Board CA 13-Oct-1995
A release of dust over neighbouring properties can be a nuisance but not a blocking of TV reception signals. No action lay in private nuisance for interference with television caused by the mere presence of a building. ‘A substantial link between . .
At first Instance – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Nuisance, Torts – Other

Updated: 28 April 2022; Ref: scu.81537

Khrapunov v JSC BTA Bank: CA 2 Feb 2017

Judges:

Gloster DBE, Beatson, Sales LJJ

Citations:

[2017] EWCA Civ 40, [2017] WLR(D) 71

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Cited by:

Appeal from – JSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Torts – Other

Updated: 28 April 2022; Ref: scu.573867

Marfani and Co Ltd v Midland Bank Ltd: CA 1968

A rogue opened a new bank account under a false name with the help of an incorrect reference from a valued customer.
Held: When an account is fraudulently opened with the bank in the name of another person by someone pretending to be that person, the person opening the account is the customer.
The court explained the tort of conversion, with special reference to bills of exchange. Liability is strict for misappropriation of goods.
Diplock LJ: ‘It is, however, in my view, clear that the intention of the subsection and its statutory predecessors is to substitute for the absolute duty owed at common law by a banker to the true owner of a cheque not to take any steps in the ordinary course of business leading up to an including the receipt of payment of the cheque, and the crediting of the amount of the cheque to the account of his customer, in usurpation of the true owner’s title thereto a qualified duty to take reasonable care to refrain from taking any such step which he foresees is, or ought reasonably to have foreseen was, likely to cause loss or damage to the true owner.
The only respect in which this substituted statutory duty differs from a common law cause of action in negligence is that, since it takes the form of a qualified immunity from a strict liability at common law, the onus of showing that he did take such reasonable care lies upon the defendant banker. Granted good faith in the banker (the other condition of the immunity), the usual matter with respect to which the banker must take reasonable care is to satisfy himself that his own customer’s title to the cheque delivered to him for collection is not defective, i.e., that no other person is the true owner of it. Where the customer is in possession of the cheque at the time of delivery for collection and appears upon the face of it to be the ‘holder’, i.e., the payee or indorsee or the bearer, the banker is, in my view, entitled to assume that the customer is the owner of the cheque unless there are facts which are, or ought to be, known to him which would cause a reasonable banker to suspect that the customer was not the true owner.
What facts ought to be known to the banker, i.e., what inquiries he should make, and what facts are sufficient to cause him reasonably to suspect that the customer is not the true owner, must depend upon current banking practice, and change as that practice changes. Cases decided 30 years ago, when the use by the general public of banking facilities was much less widespread, may not be a reliable guide to what the duty of a careful banker in relation to inquiries, and as to facts which should give rise to suspicion, is today.
What the court has to do is to look at all the circumstances at the time of the acts complained of and to ask itself: were those circumstances such as would cause a reasonable banker possessed of such information about his customer as a reasonable banker would possess, to suspect that his customer was not the true owner of the cheque?
In all actions of the kind with which we are here concerned, the banker’s customer has in fact turned out to be a fraudulent rogue, and attention is naturally concentrated upon the duty of care which was owed by the banker to the person who has in fact turned out to be the true owner of the cheque. We are always able to be wise after the event, but the banker’s duty fell to be performed before it, and the duty which he owed to the true owner ought not to be considered in isolation. At the relevant time, the true owner was entitled to take into consideration the interests of his customer, who, be it remembered, would in all probability turn out to be honest, as most men are, and his own business interests, and to weigh those against the risk of loss or damage to the true owner of the cheque in the unlikely event that he should turn out not to be the customer himself.’

As to the practice of bankers: ‘The only evidence of the practice of bankers was given by the manager and the securities clerk of the branch in question of the defendant bank. No evidence that the general practice of other bankers differed from that adopted by the defendant bank was called by the plaintiff company, although they knew well in advance of the trial, as a result of searching interrogatories, exactly what steps the defendant bank had taken, and what inquiries they had made. It seems a reasonable inference that what the defendants did in the present case was in accordance with current banking practice. Nield J accepted that it was, and Mr Lloyd has not sought to argue the contrary. What he contends is that this court is entitled to examine that practice and to form its own opinion as to whether it does comply with the standard of care which a prudent banker should adopt. That is quite right, but I venture to think that this court should be hesitant before condemning as negligent a practice generally adopted by those engaged in banking business.’

Judges:

Diplock LJ

Citations:

[1968] 1 WLR 956, [1968] 2 All ER 573

Statutes:

Cheques Act 1957 4

Jurisdiction:

England and Wales

Citing:

Approved – Commissioners of State Savings Bank v Permewan, Wright and Co 18-Dec-1914
(High Court of Australia) The court considered the nature of negligence in a banker: ‘the test of negligence is whether the transaction of paying in any given cheque [coupled with the circumstances antecedent and present] was so out of the ordinary . .

Cited by:

Cited – Dextra Bank and Trust Company Limited v Bank of Jamaica PC 26-Nov-2001
(Jamaica) A cheque was drawn which was used as part a complex financial arrangement intended to purchase foreign currency to work around Jamaica’s foreign exchange control regulations. It was asserted that by presenting the cheque used in the . .
Cited – Architects of Wine Ltd v Barclays Bank Plc CA 20-Mar-2007
The bank appealed summary judgement against it for conversion of cheques. The cheques had been obtained by a fraud.
Held: The court considered the question of neglience under section 4: ‘The section 4 qualified duty does not require an . .
Cited – White v Withers Llp and Dearle CA 27-Oct-2009
The claimant was involved in matrimonial ancillary relief proceedings. His wife was advised by the defendants, her solicitors, to remove his private papers. The claimant now sought permission to appeal against a strike out of his claim against the . .
Lists of cited by and citing cases may be incomplete.

Banking, Torts – Other

Updated: 28 April 2022; Ref: scu.181845

Wardley Australia Ltd v Western Australia: 1992

(High Court of Australia) A claim was based on a statutory trade indemnity scheme. The insurers claimed damages from Wardley, on the basis that its alleged deceit induced them to grant an indemnity, which was subsequently called on.
Held: ‘[T]he English decisions have proceeded according to the view that, where the plaintiff is induced by a negligent misrepresentation to enter into a contract and the contract, as a result of the negligence, yields property or contractual rights of lesser value, the plaintiff first suffers financial loss on entry into the contract, notwithstanding that the full extent of the plaintiff’s financial loss may be incapable of ascertainment until some later date’ and
‘If, contrary to the view which we have just expressed, the English decisions properly understood support the proposition that where, as a result of the defendant’s negligent misrepresentation, the plaintiff enters into a contract which exposes him or her to a contingent loss or liability, the plaintiff first suffers loss or damage on entry into the contract, we do not agree with them. In our opinion, in such a case, the plaintiff sustains no actual damage until the contingency is fulfilled and the loss becomes actual; until that happens the loss is prospective and may never be incurred. A deferred liability may stand in a different position but there is no occasion here to discuss that matter. ‘ and ‘The conclusion which we have reached is reinforced by the general considerations . . . It is unjust and unreasonable to expect the plaintiff to commence proceedings before the contingency is fulfilled. If an action is commenced before that date, it will fail if the events so transpire that it becomes clear that no loss is, or will be, incurred. Moreover, the plaintiff will run the risk that damages will be estimated on a contingency basis, in which event the compensation awarded may not fully compensate the plaintiff for the loss ultimately suffered. These practical consequences which would follow from an adoption of the view for which the appellants contend outweigh the strength of the argument that the principle applicable to the cases in which the plaintiff acquires property (or a chose in action) should be extended to cases where an agreement subjects the plaintiff to a contingent loss. In such cases, it is fair and sensible to say that the plaintiff does not incur loss until the contingency is fulfilled.’
The English case of Fortser v Outred was explained: ‘by reference to the immediate effect of the execution of the mortgage on the value of the plaintiff’s equity of redemption . . . It has been contended that the principle underlying the English decisions extends to the point that a plaintiff sustains loss on entry into an agreement notwithstanding that the loss to which the plaintiff is subjected by the agreement is a loss upon a contingency. For our part, we doubt that the decisions travel so far. Rather, it seems to us, the decisions in cases which involve contingent loss were decisions which turned on the plaintiff sustaining measurable loss at an earlier time, quite apart from the contingent loss which threatened at a later date . . . If . . the English decisions properly understood support the proposition that where, as a result of the defendant’s negligent representation, the plaintiff enters into a contract which exposes him or her to a contingent loss or liability, the plaintiff first suffers loss or damage on entry into the contract, we do not agree with them. In our opinion, in such a case, the plaintiff sustains no actual damage until the contingency is fulfilled and the loss becomes actual; until that happens the loss is prospective and may never be incurred.’

Judges:

Mason CJ and Dawson, Gaudron and McHugh JJ

Citations:

[1992] 109 ALR 247, (1992) 175 CLR 514

Jurisdiction:

Australia

Citing:

Rejected – Forster v Outred and Co CA 1981
A mother signed a mortgage deed charging her property to H as security for a loan to her son. She claimed the solicitor had been negligent in his advice. The solicitor replied that the claim was out of time. The loss accrued not when demand for . .

Cited by:

Cited – Nykredit Mortgage Bank Plc v Edward Erdman Group Ltd (No 2) HL 27-Nov-1997
A surveyor’s negligent valuation had led to the plaintiff obtaining what turned out to be inadequate security for his loan. A cause of action against a valuer for his negligent valuation arises when a relevant and measurable loss is first recorded. . .
Cited – The Law Society v Sephton and Co and others CA 13-Dec-2004
The Society appealed dismissal for limitation of its claim against the defendant firm of accountants arising from alleged fraud in approval of a solicitor’s accounts.
Held: The liability did not arise until the Society decided to make . .
Approved – Law Society v Sephton and Co (a Firm) and Others HL 10-May-2006
A firm of solicitors had a member involved in a substantial fraud. The defendant firm of accountants certified the firm’s accounts. There were later many calls upon the compensation fund operated by the claimants, who sought recovery in turn from . .
Cited – Axa Insurance Ltd v Akther and Darby Solicitors and Others CA 12-Nov-2009
The court considered the application of the limitation period to answering when damage occurred when it arises under an unsecured contingent liability. The claimant insurance company had provided after the event litigation insurance policies to the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 28 April 2022; Ref: scu.181809

Royal Bank of Scotland Plc v Sandstone Properties Ltd and Others: QBD 12 Mar 1998

A stock-broker who innocently requested the registration of a transfer supported by a duplicate share certificate was obliged to indemnify the company registrar for his loss even though the fraud had been made possible by duplicate share issue.
Tuckey J: ‘The certificate named the true owner of the shares, Mr AF Moore. The fact that Mr Moore did not live at 4 Furness Road did not alter the truth of this statement. The certificate did represent that Mr Moore lived at that address, but there is no evidence that the brokers relied on the address as such. The certificate did not represent that the person in possession of it was Mr Moore. The brokers relied on the fact that the fraudster said that he was Mr Moore. For these reasons I do not think that [Counsel for the stockbroker] can point to any representation in the certificate upon which the brokers relied which might found an estoppel. But even if he could, all the cases in which the company was held to be estopped involved a bona fide purchaser for value of the shares in question. Here [Counsel’s] submission involves saying that the estoppel arises in favour of the fraudster who transferred the shares. That is not the law. If the estoppel cannot avail the fraudster, it cannot avail his agents, the brokers, either.’

Judges:

Tuckey J

Citations:

Times 12-Mar-1998, [1998] 2 BCLC 429

Jurisdiction:

England and Wales

Cited by:

Cited – Cadbury Schweppes Plc and Another v Halifax Share Dealing Ltd and Another ChD 23-May-2006
Fraudsters had successfully contrived to sell shares of others, by re-registering the shares to new addresses and requesting new certificates. The question was which of the company, the company registrars and the stockbrokers should bear the loss. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 28 April 2022; Ref: scu.88886

United Australia Ltd v Barclays Bank Ltd: HL 1940

A person whose goods were wrongfully converted by another had a choice of two remedies against the wrongdoer. He could recover damages, in respect of the loss he had sustained by the conversion, or he could recover the proceeds of the conversion obtained by the defendant. It is necessary to distinguish election between remedies from election between rights. The House could hear ‘ghosts clanking their mediaeval chains.’

Judges:

Lord Romer, Lord Atkin

Citations:

[1940] 4 All ER 20, [1941] AC 1

Jurisdiction:

England and Wales

Cited by:

Cited – Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited CA 18-Mar-1999
In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break . .
Cited – Regina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Updated: 27 April 2022; Ref: scu.180889

TT (Vietnam) v The Secretary of State for The Home Department: CA 27 Feb 2019

Appeal raising two discrete matters: albeit both arise in the context of human trafficking. The first is whether the Secretary of State was lawfully entitled to certify the appellant’s asylum claim as clearly unfounded. The second is whether the appellant is entitled to substantive damages in respect of his immigration detention

Citations:

[2019] EWCA Civ 248

Links:

Bailii

Jurisdiction:

England and Wales

Immigration, Torts – Other, Human Rights

Updated: 27 April 2022; Ref: scu.634076

Sweeney v Coote: HL 16 Apr 1907

Opinions that a combination of Protestant parents to withdraw their children from a National school with the object and result of securing the dismissal of a Roman Catholic teacher, not because of any spite or ill-will entertained by them against her personally, but because of her religious opinions, would not be a ‘conspiracy’ against her such as would furnish her with a ground for an action of damages against the parents.

Judges:

Lord Chancellor (Loreburn), the Earl of Halsbury, Lords Macnaghten, James of Hereford, Robertson, Atkinson, and Collins

Citations:

[1907] UKHL 1004, 44 SLR 1004

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other

Updated: 27 April 2022; Ref: scu.622286

Motasim v Crown Prosecution Service and Others: QBD 15 Aug 2017

The claimant had been arrested on suspicion of terrorism, from his innocent association with people later convicted of terrorism. The defendant discovered evidence which would undermine the case against him, but refuse to disclose it. Eventually, after the prosecutor was refused a PII claim, he was ordered to be released and the case was dropped. The defendant now applied for the claim to be struck out, saying that it was and had to be speculative.
Held: The claimant having established the detention, it was for the defendant to justify it. The claim was not to be struck out. If necessary, material could be adduced under closed procedure.
In a developing area of law, it would be wrong to strike out a claim on the basis of assumed or hypothetical facts.

Judges:

Davison M

Citations:

[2017] EWHC 2071 (QB)

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Human Rights Act 1998 6

Jurisdiction:

England and Wales

Citing:

Cited – Zenati v Police of The Metropolis and Another CA 11-Feb-2015
The claimant appealed against rejection of his claim for damages for false imprisonment and infringement of his human rights. On his arrest for a different offence his passport was suspected to be counterfeit, and he was then held for an offence . .
Cited – Glinski v McIver HL 1962
The court considered the tort of malicious prosecution when committed by a police officer, saying ‘But these cases must be carefully watched so as to see that there really is some evidence from his conduct that he knew it was a groundless charge.’ . .
Cited – Elguzouli-Daf v Commissioner of Police of the Metropolis and Another CA 16-Nov-1994
The Court upheld decisions striking out actions for negligence brought by claimants who had been arrested and held in custody during criminal investigations which were later discontinued. The Crown Prosecution Service owes no general duty of care to . .
Cited – Moulton v Chief Constable of The West Midlands CA 13-May-2010
The claimant appealed against dismissal of his claim for damages for malicious prosecution and misfeasance in public office. He had been arrested and held on allegations of serious sexual assaults, but then released when the matter came to the Crown . .
Cited – Hicks v Faulkner 1878
Before charging a prisoner, a police officer must have ‘an honest belief in the guilt of the accused based upon a full conviction, founded upon reasonable grounds, of the existence of a state of circumstances, which, assuming them to be true, would . .
Cited – Clooth v Belgium ECHR 12-Dec-1991
Hudoc Violation of Art. 5-3; Just satisfaction reserved . .
Cited – Barrett v London Borough of Enfield HL 17-Jun-1999
The claimant had spent his childhood in foster care, and now claimed damages against a local authority for decisions made and not made during that period. The judge’s decision to strike out the claim had been upheld by the Court of Appeal.
Lists of cited by and citing cases may be incomplete.

Human Rights, Police, Torts – Other

Updated: 26 April 2022; Ref: scu.621127

Shields v Shearer and Another: HL 3 Apr 1914

In an action of damages for wrongous arrest brought against two Glasgow policemen who had apprehended the pursuer without warrant, an issue ‘whether on or about 14th October 1912 the defenders wrongfully, illegally, and without reasonable grounds of suspicion apprehended the pursuer in or about Glebe Street, Townnead, and conveyed him to the St Rollox Police Office in Glasgow, to his loss, injury, and damage,’ approved.

Judges:

Lord Chancellor (Haldane), Lord Kinnear, Lord Dunedin, Lord Atkinson, and Lord Shaw

Citations:

[1914] UKHL 403

Links:

Bailii

Jurisdiction:

Scotland

Police, Torts – Other

Updated: 26 April 2022; Ref: scu.620716

Henderson v Dorset Healthcare University NHS Foundation Trust: CA 3 Aug 2018

Upon the allegedly negligent release of the claimant from mental health care, she had, while in the midst of a serious psychotic episode, derived from the schizophrenia, killed her mother and been convicted of manslaughter. She now sought damages in negligence. The defendant relied upon a defence of illegality.
Held: All the heads of claim were barred under public policy.

Judges:

Sir Terence Etherton MR, Sir Ernest Ryder SPT and Lady Justice Macur

Citations:

[2018] EWCA Civ 1841, [2018] WLR(D) 521

Links:

Bailii, WLRD

Statutes:

Forfeiture Act 1982, Criminal Procedure (Insanity and Unfitness to Plead) Act 1991 1, Homicide Act 1957 2, Mental Health Act 1983 3

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Birch CACD 1989
Even where there is culpability, a hospital order with a restriction order may well be the appropriate way to deal with a dangerous and disordered person.
Mustill LJ discussed the effect of a restriction order: ‘In marked contrast with the . .
Cited – Vowles and Others, Regina v CACD 5-Feb-2015
The court considered appeals by prisoners subject to indeterminate sentences (either imprisonment for public protection (IPP) or a life sentence) passed between 1997 and 2008, where there had been medical evidence before the court suggesting the . .
Cited – Patel v Mirza SC 20-Jul-2016
The claimant advanced funds to the respondent for him to invest in a bank of which the claimant had insider knowledge. In fact the defendant did not invest the funds, the knowledge was incorrect. The defendant however did not return the sums . .
Cited – Daniel MNaghtens Case HL 1843
Daniel M’Naghten suffered from a mental disorder under which he believed that he was being persecuted by various bodies in authority, including the Tory Party. He sought to kill the Tory Prime Minister Sir Robert Peel, but shot and killed instead . .
Cited – Young v The Bristol Aeroplane Co Ltd CA 28-Jul-1944
Court of Appeal must follow Own Decisions
The claimant was injured and received compensation. He then sought to recover again, alleging breach of statutory duty by his employers.
Held: The Court of Appeal was in general bound to follow its own previous decisions. The court considered . .
Cited – Clunis (By his Next Friend Prince) v Camden and Islington Health Authority CA 5-Dec-1997
The plaintiff had killed someone and, as a result, been convicted of manslaughter and ordered to be detained in a secure hospital when subject to after-care under section 117 of the 1983 Act. He sought damages from the health authority on the basis . .
Cited – Regina v Drew HL 8-May-2003
The defendant was mentally ill. He had been convicted of a second serious offence, and now appealed the life sentence imposed. Psychiatrists had recommended a hospital order, but such an order could not now be made by virtue of the 2000 Act save in . .
Cited – Gray v Thames Trains and Others HL 17-Jun-2009
The claimant suffered severe psychiatric injured in a rail crash caused by the defendant’s negligence. Under this condition of Post-Traumatic Stress Disorder, the claimant had gone on to kill another person, and he had been detained under section . .
See Also – Henderson v Dorset Healthcare University NHS Foundation Trust QBD 19-Dec-2016
. .
Cited – Holman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, . .
Cited – Browning v War Office CA 1962
The plaintiff had been a technical sergeant in the United States Air Force; his pay had been $450 per month and after his injuries caused by the negligence of the defendants’ driver he received only a ‘veteran’s benefit’ of $217 per month
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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Crime, Health

Updated: 25 April 2022; Ref: scu.620605

SQ v EIB: ECFI 13 Jul 2018

Judgment – Public service – Staff of the EIB – Complaint for psychological harassment – Administrative inquiry – Concept of ‘moral harassment’ – Requirement that the conduct complained of be repeated as constituting ‘moral harassment’ – Refusal to open the disciplinary procedure to against the perpetrator of these behaviors – Obligation of confidentiality relating to the existence of an administrative inquiry procedure in progress and, subsequently, to the decision closing the proceedings finding the existence of a case of moral harassment

Citations:

ECLI:EU:T:2018:478, T-377/17, [2018] EUECJ T-377/17

Links:

Bailii

Jurisdiction:

European

Employment, Torts – Other

Updated: 25 April 2022; Ref: scu.620048

Al-Nesnas v Al-Najar and Others: CA 10 Jul 2018

Claims of fraudulent (or negligent) misrepresentation, repudiatory breach of contract and other causes of action concerning an investment of approximately pounds 1.6 Million made by Mr Al-Nesnas pursuant to an agreement with the first appellant

Citations:

[2018] EWCA Civ 1619

Links:

Bailii

Jurisdiction:

England and Wales

Torts – Other

Updated: 25 April 2022; Ref: scu.619381

Lloyd v Grace Smith and Co: HL 19 Jul 1912

A principal is liable in damages for the fraud of his agent, whether benefited thereby or not, provided the agent is acting within the scope of his employment. In a case where a clerk, purporting to act on behalf of his employer a solicitor, obtained control of and embezzled the property of a client, held that the fact that the clerk was apparently invested by his employer with power to act for him was sufficient to make the employer responsible for his fraud.

Judges:

Earl Loreburn, the Earl of Halsbury, Lords Macnaghten, Atkinson, Shaw, and Robson

Citations:

[1912] UKHL 606, 50 SLR 606

Links:

Bailii

Jurisdiction:

England and Wales

Agency, Torts – Other

Updated: 25 April 2022; Ref: scu.619250

Freeman v Home Office (No 2): CA 1984

A prisoner brought an action in battery against a prison doctor for administering drugs to him by injection. He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody. . He failed at trial.
Held: The appeal was dismissed. The fact of imprisonment does not deprive a prisoner of his autonomy. In an allegation of assault, and in relation to the defence of consent, the burden of proving the absence of consent lies on the claimant.
The court cited with approval the view of McCowan J at first instance: ‘The right approach, in my judgment, is to say that where, in a prison setting, a doctor has the power to influence a prisoner’s situation and prospects a court must be alive to the risk that what may appear, on the face of it, to be real consent is not in fact so. I have borne that in mind throughout the case.’

Judges:

Stephen Brown LJ and Sir John Donaldson MR

Citations:

[1984] QB 524, (1984) 81 LSG 1045, [1984] 1 All ER 1036, [1984] 2 WLR 802

Jurisdiction:

England and Wales

Citing:

Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .

Cited by:

Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Ashley and Another v Sussex Police CA 27-Jul-2006
The deceased was shot by police officers raiding his flat in 1998. The claimants sought damages for his estate. They had succeeded in claiming damages for false imprisonment, but now appealed dismissal of their claim for damages for assault and . .
Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other

Updated: 24 April 2022; Ref: scu.235779

Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office: HL 24 Jul 1991

The prisoner challenged the decision to place him in segregation under Prison Rule 43. Under rule 43(1) the initial power to segregate was given to ‘the governor’. The case arose from the fact that the governor of one prison had purported to authorise the segregation of a prisoner on his arrival at another prison to which he was being transferred, as required by an instruction issued by the Home Office. The prisoner’s continued segregation at his new prison, after the initial period of segregation expired, was then automatically authorised by the regional director of prisons on behalf of the Secretary of State, in accordance with the same instruction.
Held: The House characterised the Prison Rules as regulatory in character, to the extent that they dealt with the management, treatment and control of prisoners.
A prisoner ‘is lawfully committed to a prison and while there is subject to the Prison Act 1953 and the Prison Rules 1954. His whole life is regulated by the regime. He has no freedom to do what he wants, when he wants. His liberty to do anything is governed by the prison regime. Placing Weldon in a strip cell and segregating Hague altered the conditions under which they were detained but did not deprive them of any liberty which they had not already lost when initially confined.’ A person who has been deprived of his liberty in pursuance of a lawful power to detain cannot through the medium of the tort of false imprisonment complain about the conditions in which he is detained, at least by those who are lawfully detaining him, though unauthorised persons, such as other prisoners, might indeed be guilty of false imprisonment if they confined another prisoner within the prison. Whether a statutory duty gives rise to a private cause of action is a question of construction of the statute. When justifying a detention, the issue of detention must be considered and determined before one can turn to the issue of justification.
As to an allegation of novus actus interveniens, Lord Bingham emphasised that the duty was a duty to take reasonable care and not to guarantee that a fatality did not occur: ‘Since an act of self-destruction by the deceased was the very risk against which the defendant was bound in law to take reasonable precautions, I cannot see how that act can be regarded as a novus actus. So to hold would be to deprive the duty of meaningful content. This was, after all, the very thing against which the defendant was duty- bound to take precautions. It can make no difference that the deceased was mentally ‘normal’ (assuming he was), since it is not suggested that the defendant’s duty was owed only to the abnormal. The suicide of the deceased cannot in my view be regarded as breaking the chain of causation.’ and ‘If the defendant owed the deceased a duty of care despite the fact that the deceased was of sound mind, then it again seems to me to empty that duty of meaningful content if any claim based on breach of the duty is inevitably defeated by a defence of volenti.’
Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it.

Judges:

Lord Bridge of Harwich, Lord Ackner, Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Lowry

Citations:

[1992] 1 AC 58, Times 25-Jul-1991, [1991] 3 All ER 733, [1990] UKHL 8, [1991] 3 WLR 340, [1992] COD 69, (1993) 5 Admin LR 425, [1991] UKHL 13, [1991] BCC 713, 1991 SLT 523, 1991 SC (HL) 22

Links:

Bailii, Bailii

Statutes:

Prison Act 1953 12 13, Prison Rules 1964 43

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague CA 5-Jun-1990
A decision to segregate a prisoner under rule 43 is to be made by the governor of the prison where he is held. Taylor LJ said: ‘Apart from the urgency of decisions under r 43, there may well be other public policy grounds for not giving reasons in . .
Cited – Regina v Board of Visitors of Hull Prison, Ex parte St Germain (No 2) CA 1979
Proper Limits on Imprisonment
The court discussed the proper limits of imprisonment: ‘despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to the nature and conduct of his incarceration . . An essential characteristic of . .
Cited – Leech v Governor of Parkhurst Prison HL 1988
The House was asked whether a disciplinary decision by a governor was amenable to judicial review.
Held: The functions of a governor adjudicating upon disciplinary charges are separate and distinct from his functions in running the prison; . .
Cited – Groves v Lord Wimborne CA 1898
The court heard a case dealing with a claim for breach of a duty to fence dangerous machinery under the Act.
Held: Legislation protecting safety in the workplace gives rise to an action by a person for whom the protection was intended for . .
Cited – Arbon v Anderson 1943
The court was asked whether a cause of action arose from a breach of the Prison Rules 1933. Goddard LJ said: ‘With regard to the prison rules, it would be enough to say that there were no breaches, but, in case a higher court should take a different . .
Cited – Regina v Deputy Governor of Parkhurst Prison, Ex parte Hague, Weldon v Home Office QBD 1990
A prisoner challenged the decision that he should be segregated under rule 43.
Held: Ralph Gibson LJ said: ‘In this case Mr Sedley acknowledged that there could not be an unqualified obligation in all cases upon the governor to allow the right . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
Cited – London Passenger Transport Board v Upson HL 1949
‘A prudent man will guard against the possible negligence of others when experience shows such negligence to be common’.
Lord Wright said: ‘a claim for damages for breach of a statutory duty intended to protect a person in the position of the . .
Cited – Becker v Home Office CA 1972
Mrs. Becker had started an action as trustee when she was sent to prison for obtaining credit as a bankrupt. She applied to leave prison in order to conduct her case. The Home Secretary made a direction for her production under Section 29 of the . .
Erroneous – Middleweek v The Chief Constable of Merseyside (Note) CA 1990
The plaintiff had been awarded damages for false imprisonment by the jury on the basis that his otherwise lawful detention at a police station had been made unlawful because it was unreasonable in the circumstances to keep him in a police cell.
Cited – Yorke v Chapman 1839
The plaintiff was a prisoner committed to the Queen’s Bench Prison for debt. He had been further confined by the marshal in terms of a rule of court in a strong room for disorderly behaviour. He had a statutory right to petition the court on the . .
Cited – Cobbett v Grey 1849
A prisoner complained that he had been falsely imprisoned in a part of a prison in which he could not lawfully be confined. . .
Cited – Osborne v Milman 1886
The plaintiff sought damages, saying that though a prisoner he had been further unlawfully confined within the prison. . .
Cited – Cutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
Cited – Williams v Home Office (No 2) 1981
Tudor-Evans J said: ‘In my judgment, the sentence of the court and the provisions of section 12(1) always afford a defence to an action of false imprisonment. The sentence justifies the fact of imprisonment and the subsection justifies the . .
Cited – Raymond v Honey HL 4-Mar-1981
The defendant prison governor had intercepted a prisoner’s letter to the Crown Office for the purpose of raising proceedings to have the governor committed for an alleged contempt of court.
Held: The governor was in contempt of court. Subject . .
Cited – Regina v Board of Visitors of Gartree Prison, Ex parte Sears 14-Mar-1985
A prisoner sought damages in respect of cellular confinement and loss of privileges.
Held: Mann J. said: ‘If a person is imprisoned in a place where he is lawfully so imprisoned, then it does not seem to me that a variation in conditions of . .

Cited by:

Cited – London Borough of Tower Hamlets v Runa Begum CA 6-Mar-2002
The applicant had applied for rehousing as a homeless person. She was offered interim accommodation but refused it. Her case was reviewed, and her reasons rejected. She claimed the procedure was unfair, in that the authority was looking at decisions . .
Cited – S v Airedale National Health Service Trust QBD 22-Aug-2002
The patient had been detained, and then secluded within the mental hospital for 11 days. He claimed to have been subjected to inhuman treatment, and false imprisonment.
Held: His claim failed. The policy allowed the authority to confine him to . .
Cited – Cullen v Chief Constable of the Royal Ulster Constabulary (Northern Ireland) HL 10-Jul-2003
The claimant had been arrested. He had been refused access to a solicitor whilst detaiined, but, in breach of statutory duty, he had not been given reasons as to why access was denied. He sought damages for that failure.
Held: If damages were . .
Cited – Munjaz v Mersey Care National Health Service Trust And the Secretary of State for Health, the National Association for Mental Health (Mind) Respondent interested; CA 16-Jul-2003
The claimant was a mental patient under compulsory detention, and complained that he had been subjected to periods of seclusion.
Held: The appeal succeeded. The hospital had failed to follow the appropriate Code of Practice. The Code was not . .
Cited – Stovin v Wise, Norfolk County Council (Third Party) HL 24-Jul-1996
Statutory Duty Does Not Create Common Law Duty
The mere existence of statutory power to remedy a defect cannot of itself create a duty of care to do so. A highway authority need not have a duty of care to highway users because of its duty to maintain the highway. The two stage test ‘involves . .
Cited – JD, MAK and RK, RK and Another v East Berkshire Community Health, Dewsbury Health Care NHS Trust and Kirklees Metropolitan Council, Oldham NHS Trust and Dr Blumenthal CA 31-Jul-2003
Damages were sought by parents for psychological harm against health authorities for the wrongful diagnosis of differing forms of child abuse. They appealed dismissal of their awards on the grounds that it was not ‘fair just and reasonable’ to . .
Cited – Regina v Carroll and Al-Hasan and Secretary of State for Home Department Admn 16-Feb-2001
The claimants challenged the instruction that they must squat whilst undergoing a strip search in prison. A dog search had given cause to supect the presence of explosives in the wing, and the officers understood that such explosives might be hidden . .
Cited – In Re L (By His Next Friend GE); Regina v Bournewood Community and Mental Health NHS Trust, Ex Parte L HL 25-Jun-1998
The applicant was an adult autistic, unable to consent to medical treatment. Treatment was provided at a day centre. He had been detained informally under the Act and against the wishes of his carers, but the Court of Appeal decided he should have . .
Cited – Secretary of State for the Home Department v SP CA 21-Dec-2004
The applcant, a girl aged 17 was in a young offender institution. She complained that she had been removed to segregation without first giving her chance to be heard. The respondent argued that there were sufficient post decision safeguards to . .
Cited – B, Regina (on the Application of) v Ashworth Hospital Authority HL 17-Mar-2005
The House was asked whether a patient detained for treatment under the 1983 Act can be treated against his will for any mental disorder from which he is suffering or only for the particular form of mental disorder from which he is classified as . .
No longer authoritative – Regina v Ashworth Hospital Authority (Now Mersey Care National Health Service Trust) ex parte Munjaz HL 13-Oct-2005
The claimant was detained in a secure Mental Hospital. He complained at the seclusions policy applied by the hospital, saying that it departed from the Guidance issued for such policies by the Secretary of State under the Act.
Held: The House . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Cited – Prison Officers Association v Iqbal CA 4-Dec-2009
The claimant, a prisoner, alleged false imprisonment. The prison officers had taken unlawful strike action leaving him to be confined within his cell and unable to be involved in his normal activities. In view of the strike, a governor’s order had . .
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 – Kambadzi (previously referred to as SK (Zimbabwe)) v Secretary of State for The Home Department SC 25-May-2011
False Imprisonment Damages / Immigration Detention
The respondent had held the claimant in custody, but had failed to follow its own procedures. The claimant appealed against the rejection of his claim of false imprisonment. He had overstayed his immigration leave, and after convictions had served a . .
Cited – King, Regina (on The Application of) v Secretary of State for Justice CA 27-Mar-2012
In each case the prisoners challenged their transfer to cellular confinement or segregation within prison or YOI, saying that the transfers infringed their rights under Article 6, saying that domestic law, either in itself or in conjunction with . .
Cited – Olutu v Home Office CA 29-Nov-1996
The claimant said that she had been detained in excess of the period allowed under the 1987 Regulations, and that that detention was unlawful. She now appealed against the striking out of her claim.
Held: Her action failed. The availablility . .
Cited – Bourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
Cited – Shahid v Scottish Ministers (Scotland) SC 14-Oct-2015
The appellant convicted of a racially-aggravated vicious murder. Since conviction he had spent almost five years in segregation from other prisoners. The appellant now alleged that some very substantial periods of segregation had been in breach of . .
Cited – Campbell v Gordon SC 6-Jul-2016
The employee was injured at work, but in a way excluded from the employers insurance cover. He now sought to make the sole company director liable, hoping in term to take action against the director’s insurance brokers for negligence, the director . .
Cited – Hemmati and Others, Regina (on The Application of) v Secretary of State for The Home Department SC 27-Nov-2019
The Home Secretary appealed from a finding that illegally entered asylum seekers had been unlawfully detained pending removal. The five claimants had travelled through other EU member states before entering the UK. The court considered inter alia . .
Cited – Poole Borough Council v GN and Another SC 6-Jun-2019
This appeal is concerned with the liability of a local authority for what is alleged to have been a negligent failure to exercise its social services functions so as to protect children from harm caused by third parties. The principal question of . .
Lists of cited by and citing cases may be incomplete.

Prisons, Torts – Other

Leading Case

Updated: 24 April 2022; Ref: scu.183200

Tomlinson v Congleton Borough Council and others: HL 31 Jul 2003

The claimant dived into a lake, severely injuring himself. The council appealed liability, arguing that it owed him no duty of care under the Act since he was a trespasser. It had placed warning signs to deter swimmers.
Held: The council’s appeal succeeded. The risk of injury arose, not from any danger due to the state of the defendants’ premises, or to things done or omitted to be done on those premises, but from the claimant’s own misjudgment in attempting to dive in water that was too shallow. This was not a risk that gave rise to any duty on the defendants’ part and that, in any event, it had not been a risk in respect of which the defendants might reasonably have been expected to afford the claimant protection. The dangers were signposted, and therefore the 1957 Act did not apply. Under the 1984 Act, the question was whether there was a difference between someone whose entry to the property was as a trespasser, and someone who having entered property lawfully, became a trespasser after by acting outside the terms of the licence. There should not be a difference, and nor should the authority be required to take greater steps than they had to prevent others taking risks which were obvious.
Lord Hoffmann said why the voluntary assumption of risk was a complete answer to his claim: ‘I think it will be extremely rare for an occupier of land to be under a duty to prevent people from taking risks which are inherent in the activities they freely choose to undertake upon the land. If people want to climb mountains, go hand-gliding or swim or dive in ponds or lakes, that is their affair. Of course the landowner may for his own reasons wish to prohibit such activities. He may think that they are a danger or inconvenience to himself or others. Or he may take a paternalistic view and prefer people not to undertake risky activities on his land. He is entitled to impose such conditions, as the Council did by prohibiting swimming. But the law does not require him to do so.
My Lords, as will be clear from what I have just said, I think that there is an important question of freedom at stake. It is unjust that the harmless recreation of responsible parents and children with buckets and spades on the beaches should be prohibited in order to comply with what is thought to be a legal duty to safeguard irresponsible visitors against dangers which are perfectly obvious. The fact that such people take no notice of warnings cannot create a duty to take other steps to protect them. I find it difficult to express with an appropriate moderation my disagreement with the proposition of Sedley LJ that it is ‘only where the risk is so obvious that the occupier can safely assume that nobody will take it that there will be no liability’. A duty to protect against obvious risks or self-inflicted harm exists only in cases in which there is no genuine and informed choice, as in the case of employees whose work requires them to take the risk, or some lack of capacity, such as the inability of children to recognise danger (Herrington v British Railways Board [1972] AC 877) or the despair of prisoners which may lead them to inflict injury on themselves: Reeves v Commissioner of the Police of the Metropolis [2000] 1 AC 360.’

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hutton, Lord Hobhouse of Woodborough, Lord Scott of Foscote

Citations:

[2003] UKHL 47, Times 01-Aug-2003, Gazette 11-Sep-2003, [2003] 3 WLR 705, [2004] 1 AC 46, [2003] NPC 102, [2003] 32 EGCS 68, [2003] 3 All ER 1122, [2004] PIQR P8

Links:

Bailii, House of Lords

Statutes:

Occupier’s Liability Act 1984 1, Occupier’s Liability Act 1957 2

Jurisdiction:

England and Wales

Citing:

Appeal from – Tomlinson v Congleton Borough Council and Another CA 14-Mar-2002
The claimant was injured swimming in a lake in a park. Warning signs clearly indicated that the lake was dangerous for swimming.
Held: The authority were liable. They knew that the lake was attractive to swimmers, and that the signs were . .
Cited – Hillen and Pettigrew v ICI (Alkali) Ltd HL 1936
Stevedores who were lawfully on a barge for the purpose of discharging it, nevertheless became trespassers when they went onto an inadequately supported hatch cover in order to unload some of the cargo. They knew that they ought not to use the . .
Cited – Donoghue v Folkestone Properties Limited CA 27-Feb-2003
The claimant had decided to go for a midnight swim, but was injured diving and hitting a submerged bed. The landowner appealed a finding that it was 25% liable. The claimant asserted that the defendant knew that swimmers were common.
Held: The . .
Cited – British Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
Cited – Staples v West Dorset District Council CA 5-Apr-1995
There was no duty of care on a landowner to warn of obvious danger on Lyme Regis Cobb. The quay clearly dangerous for anyone to see. . .
Cited – Overseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
Cited – Jolley v Sutton London Borough Council HL 24-May-2000
An abandoned boat had been left on its land and not removed by the council. Children tried to repair it, jacked it up, and a child was injured when it fell. It was argued for the boy, who now appealed dismissal of his claim by the Court of Appeal, . .
Cited – Darby v National Trust CA 29-Jan-2001
The claimant’s husband drowned swimming in a pond on the National Trust estate at Hardwick Hall. Miss Rebecca Kirkwood, the Water and Leisure Safety Consultant to the Royal Society for the Prevention of Accidents, gave uncontradicted evidence, which . .
Cited – Bolton v Stone HL 10-May-1951
The plaintiff was injured by a prodigious and unprecedented hit of a cricket ball over a distance of 100 yards. He claimed damages in negligence.
Held: When looking at the duty of care the court should ask whether the risk was not so remote . .
Cited – Commissioner of Police for the Metropolis v Reeves (Joint Administratix of The Estate of Martin Lynch, Deceased) HL 15-Jul-1999
The deceased was a prisoner known to be at risk of committing suicide. Whilst in police custody he hanged himself in his prison cell. The Commissioner accepted that he was in breach of his duty of care to the deceased, but not that that breach was . .
Cited – Stevenson v Glasgow Corporation 1908
Lord M’Laren said: ‘in a town, as well as in the country, there are physical features which may be productive of injury to careless persons or to young children against which it is impossible to guard by protective measures. The situation of a town . .
Cited – Hastie v Magistrates of Edinburgh 1907
There are certain risks against which the law, in accordance with the dictates of common sense, does not give protection – such risks are ‘just one of the results of the world as we find it’. . .
Cited – Glasgow Corporation v Taylor HL 18-Nov-1921
A father brought an action for damages for the death of his son who had eaten poisonous berries growing in one of the defenders’ public parks. The plants were easily accessible from a children’s play area and it was said that the defender had a duty . .
Cited – Cotton v Derbyshire District Council CA 20-Jun-1994
No notice warning of danger was necessary on a public right of way for an obviously dangerous cliff. The Court upheld the decision of the trial judge dismissing the plaintiff’s claim for damages for serious injuries sustained from falling off a . .
Cited – Karl Andrew Whyte v Redland Aggregates Limited CA 27-Nov-1997
The appellant dived into a disused gravel pit and struck his head on an obstruction on the floor of the pit. The Court dismissed his appeal that he was not entitled to damages.
Held: ‘In my judgment, the occupier of land containing or bordered . .
Cited – Bartrum v Hepworth Minerals and Chemicals Limited QBD 1984
The claimant dived from a ledge on a cliff. In order to avoid shallow water he knew that he had to dive out into the pool but he failed to do so and fractured his neck.
Held: The court dismissed his claim for damages saying ‘So far as the Act . .

Cited by:

Cited – Simonds v Isle of Wight Council QBD 23-Sep-2003
The claimant sought damages, having been injured at a school sports day. The school had carried out a risk asessment and acknowledged a risk of injury.
Held: Not every risk identified could or should be controlled. The injury occurred whilst . .
Cited – Gorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
Cited – Sandhar, Murray v Department of Transport, Environment and the Regions QBD 19-Jan-2004
The claimant asserted a common law duty on the respondent to maintain a roadway free of frost.
Held: No such common law duty existed. Where parliament has conferred a discretionary power, ‘ . . the minimum preconditions for basing a duty of . .
Cited – Jane Marianne Sandhar, John Stuart Murray v Department of Transport, Environment and the Regions CA 5-Nov-2004
The claimant’s husband died when his car skidded on hoar frost. She claimed the respondent was liable under the Act and at common law for failing to keep it safe.
Held: The respondent had not assumed a general responsibility to all road users . .
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 . .
Cited – Hampstead Heath Winter Swimming Club and Another v Corporation of London and Another Admn 26-Apr-2005
Swimmers sought to be able to swim unsupervised in an open pond. The authority which owned the pond on Hampstead Heath wished to refuse permission fearing liability for any injury.
Held: It has always been a principle of the interpretation of . .
Cited – Keown v Coventry Healthcare NHS Trust CA 2-Feb-2006
The claimant a young boy fell from a fire escape on the defendant’s building. He suffered brain damage and in later life was convicted of sexual offences.
Held: His claim failed: ‘there was no suggestion that the fire escape was fragile or had . .
Cited – Corr v IBC Vehicles Ltd CA 31-Mar-2006
The deceased had suffered a head injury whilst working for the defendant. In addition to severe physical consequences he suffered post-traumatic stress, became more and more depressed, and then committed suicide six years later. The claimant . .
Cited – JL, Regina (on the Application of) v Secretary of State for Justice; Regina (L (A Patient)) v Secretary of State for the Home Department HL 26-Nov-2008
The prisoner was left with serious injury after attempting suicide in prison. He said that there was a human rights duty to hold an investigation into the circumstances leading up to this.
Held: There existed a similar duty to hold an enhanced . .
Cited – Geary v JD Wetherspoon Plc QBD 14-Jun-2011
The claimant, attempting to slide down the banisters at the defendants’ premises, fell 4 metres suffering severe injury. She claimed in negligence and occupiers’ liability. The local council had waived a requirement that the balustrade meet the . .
Cited – Helena Partnerships Ltd v HM Revenue and Customs CA 9-May-2012
The company had undertaken substantial building works and sought associated tax relief. The court was asked whether, following a change in the company’s memorandum and articles of association, the company, a registered social landlord, remained a . .
Cited – Harvey v Plymouth City Council CA 29-Jul-2010
The Council appealed against a finding of liability under the 1957 Act after the claimant was injured after jumping over a fence to flee hving to pay a taxi, and falling down a steep slope onto a car park. The land had been licenced to the . .
Cited – Cockbill v Riley QBD 22-Mar-2013
The claimant sufferd catastrophic injury diving into a paddling pool at a party held by the defendant for his daughter to celebrate completing her GCSEs.
Held: The claim failed. ‘It was reasonably foreseeable that someone would lose his . .
Cited – Uren v Corporate Leisure (UK) Ltd CA 2-Feb-2011
The claimant suffered injury at a competitive fun day organised by his employers, the RAF at a facility of the respondents. He struck his head diving into a very shallow inflatable pool. He appealed against dismissal of his claim.
Held: The . .
Cited – Ovu v London Underground Ltd (Duty of Care) QBD 13-Oct-2021
Safety of Stairs within Undergrounds Care of duty
The Claimant sued the London Underground company because their relative Mr Ovu died after falling down stairs on a fire escape. It was late at night and he wandered on his own on a cold night, outdoors, onto the stairs. The staircase was in good . .
Lists of cited by and citing cases may be incomplete.

Land, Torts – Other

Leading Case

Updated: 24 April 2022; Ref: scu.185424

Secretary of State for The Home Department and Another v TLU and Another: CA 15 Jun 2018

The SSHD appealed on liability from the award of damages after it published on its website statistical and anonymised data about return of asylum and other applicants to their countries of origin. Unfortunately, a link was provided within the data to the non-anonymised data. The claim was at common law for distress and under the 1998 Act.

Judges:

Gross, McFarlane, Coulson LJJ

Citations:

[2018] EWCA Civ 2217

Links:

Bailii

Statutes:

Data Protection Act 1998

Jurisdiction:

England and Wales

Information, Torts – Other

Updated: 24 April 2022; Ref: scu.618389

Worthington and Another v Metropolitan Housing Trust Ltd: CA 17 May 2018

Appeal by the defendant housing association against a judgment holding that the Association had unlawfully harassed two of its tenants contrary to s1 of the 1997 At.

Judges:

Kitchin LJ, Rose J

Citations:

[2018] EWCA Civ 1125

Links:

Bailii

Statutes:

Protection from Harassment Act 1997 1

Jurisdiction:

England and Wales

Housing, Torts – Other

Updated: 22 April 2022; Ref: scu.616342

EB v Haughton: QBD 17 Feb 2011

The claimant alleged sexual assualt on her by the defendant when she was a child.

Judges:

Slade DBE J

Citations:

[2011] EWHC 279 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – RAR v GGC QBD 10-Aug-2012
The claimant alleged that the defendant, her stepfather, had sexually and otherwise assaulted her when she was a child. He had pleaded guilty to one charge in 1978, and now said that the claim was out of time. The claimant sought the extension of . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Damages

Updated: 22 April 2022; Ref: scu.429641

Thornton v Telegraph Media Group Ltd: QBD 4 Feb 2011

The defendant sought permission to amend its defence to the claim in malicious falsehood.

Judges:

Tugendhat J

Citations:

[2011] EWHC 159 (QB), [2011] EMLR 25

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Thornton v Telegraph Media Group Ltd QBD 16-Jun-2010
The claimant said that a review of her book was defamatory and a malicious falsehood. The defendant now sought summary judgment or a ruling as to the meaning of the words complained of.
Held: The application for summary judgment succeeded. The . .
See Also – Thornton v Telegraph Media Group Ltd QBD 12-Nov-2009
The claimant sought damages for an article in the defendant’s newspaper, a review of her book which said she had falsely claimed to have interviewed artists including the review author and that the claimant allowed interviewees control over what was . .
See Also – Thornton v Telegraph Media Group Ltd CA 29-Mar-2010
. .

Cited by:

See Also – Thornton v Telegraph Media Group Ltd QBD 27-May-2011
The defendant appealed against an order refusing trial by judge alone on the basis that the application had been made out of time. . .
See Also – Telegraph Media Group Ltd v Thornton CA 22-Jun-2011
. .
See Also – Thornton v Telegraph Media Group Ltd QBD 26-Jul-2011
The claimant alleged defamation and malicious falsehood in an article published and written by the defendants. She complained that she was said to have fabricated an interview with the second defendant for her book. An interview of sorts had now . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 22 April 2022; Ref: scu.428548

Hayward v Zurich Insurance Company Plc: SC 27 Jul 2016

The claimant had won a personal injury case and the matter had been settled with a substantial payout by the appellant insurance company. The company now said that the claimant had grossly exaggerated his injury, and indeed wasfiully recovered at the time of the settlement. It had however known something of the deceit, and the CA had said that having proceeded with that knowledge they could not now resile from the agreement.
Held: The insurer’s appeal succeeded, and the settlement was set aside. They had not at the time known the full extent of the exaggeration by the claimant A claimant basing his claim in deceit in an alleged misrepresentation, had to demonstrate that the defendant had made a misrepresentation where the falsity wen to the misrepresenytation, and was intended to lead, and had in fact lead, the claimant to accrue a detriment. In law, he did ned to establish that he had in fact believed the misrepresentation. The representee’s state of mind might remain relevant to the issue of inducement.
Toulson L said: ‘To establish the tort of deceit it must be shown that the defendant dishonestly made a material false representation which was intended to, and did, induce the representee to act to its detriment. The elements essential for liability can be broken down under three headings: (a) the making of a materially false representation (the defendant’s conduct element); (b) the defendant’s accompanying state of mind (the fault element); and (c) the impact on the representee (the causation element). Where liability is established, it remains for the claimant to establish (d) the amount of any resulting loss (the quantum element).’

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Clarke, Lord Reed, Lord Toulson

Citations:

[2016] 3 WLR 637, [2016] UKSC 48, [2016] 4 All ER 628, [2016] 2 All ER (Comm) 755, [2016] WLR(D) 423, [2017] AC 142, UKSC 2015/0099

Links:

Bailii, Bailii Summary, SC, SC Summary, SC Summary Vid, SC 2016 Jun 16 am, SC 2016 Jun 16 pm, WLRD

Jurisdiction:

England and Wales

Citing:

Cited – Ladd v Marshall CA 29-Nov-1954
Conditions for new evidence on appeal
At the trial, the wife of the appellant’s opponent said she had forgotten certain events. After the trial she began divorce proceedings, and informed the appellant that she now remembered. He sought either to appeal admitting fresh evidence, or for . .
Appeal from – Hayward v Zurich Insurance Company Plc CA 31-Mar-2015
The claimant sought damages alleging his back had been injured at work. The insurers accepted liability but said that the claimant had exaggerated the extent of his injury. The claim was settled, but later a neighbour of the claimants said that the . .
Cited – Fairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .
Cited – Edgington v Fitzmaurice CA 7-Mar-1885
False Prospectus – Issuers liable in Deceit
The directors of a company issued a prospectus, falsely stating that the proceeds were to be used to complete alterations to the buildings of the company, to purchase horses and vans and to develop the trade of the company. In fact it was to pay off . .
Cited – Smith v Kay HL 1859
A party who has practised deception with a view to a particular end, which has been attained by it, cannot be allowed to deny its materiality.
Lord Cranworth rejected what he described as ‘a very desperate argument’ that a representation could . .
Cited – Pan Atlantic Insurance Co Ltd and Another v Pine Top Insurance Co Ltd HL 27-Jul-1994
The plaintiff had written long term (tail) insurance. The defendant came to re-insure it. On a dispute there were shown greater losses than had been disclosed, and that this had been known to the Plaintiff.
Held: ‘material circumstance’ which . .
Cited – Briess v Woolley HL 1954
A fraudulent misrepresentation made in the course of pre-contractual discussions by a shareholder in a company. He was subsequently authorised by the other shareholders to continue the negotiations as their agent, and in due course a contract was . .
Cited – Barton v Armstrong PC 5-Dec-1973
(New South Wales) The appellant had executed a deed on behalf of a company to sell shares to the respondent in the context of a long running boardroom battle. He said that the deed had been obtained by duress and was voidable. The respondent was . .
Cited – Gipps v Gipps 1978
(Court of Appeal of New South Wales) In order to defeat a claim in misrepresentation, it is necessary for the false belief to be ‘wholly dissipated’ for knowledge to defeat misrepresentation. Huttley JA said: ‘Any other rule would be an affront to . .
Cited – Gould v Vaggelas 6-Nov-1984
A deceit was alleged.
Wilson J said: ‘The representation need not be the sole inducement in sustaining the loss. If it plays some part, even if only a minor part, in contributing to the course of action taken a causal connection will exist.’ . .
Cited – Downs v Chappell; Downs v Stephenson Smart (a Firm) CA 1996
The plaintiff purchased a book shop. He claimed that in doing so he had relied upon the accounts prepared and signed off by the respective defendants.
Held: The judge had been wrong by testing what would have been the true figures as against . .
Cited – Standard Chartered Bank v Pakistan National Shipping Corporation, Standard Chartered Bank v Pakistan National Shipping Corporation and Others and Another and Others (Nos 2 and 4) HL 6-Nov-2002
Fraudulent Misrepresentation by Company Director
Fraudulent bills of lading had been issued in order to rely upon letters of credit issued by the bank. The director signing the bills sought to avoid personal liability, saying it was the Act of the company. The defendant company also appealed on . .
Cited – Ross River Ltd and Another v Cambridge City Football Club Ltd ChD 19-Sep-2007
The club sought to rescind agreements for leasing its ground, saying that the developers had made a secret payment to its chairman.
Briggs J said: ‘First and foremost, in a case where fraudulent material misrepresentations have been . .
Cited – Australian Steel and Mining Corpn Pty Ltd v Corben 1974
Complaint was made that a statement (as to the identity of a purchaser to whom Mr Corben, who had decided to sell, was to give an option to purchase) was a ‘but for’ cause of the agreement. Mr Corben would not have persevered with the deal if he had . .
Cited – BP Exploration Operating Co Ltd v Chevron Transport (Scotland) HL 18-Oct-2001
A ship owned by the defenders caused substantial damage whilst moored at the claimant’s docks. The claim was made against different members of the defendants as they asserted and denied responsibility. The last company asserted that the claim was . .
Cited – Sharland v Sharland SC 14-Oct-2015
The Court considered the impact of fraud upon a financial settlement agreed between divorcing parties where that agreement is later embodied in a court order? Does ‘fraud unravel all’, as is normally the case when agreements are embodied in court . .
Cited – Arkwright v Newbold CA 1881
Cotton LJ discussed the tort of deceit and said: ‘In my opinion, it would not be right in an action of deceit to give a plaintiff relief on the ground that a particular statement, according to the construction put on it by the court, is false, when . .
Cited – Betjemann v Betjemann CA 1895
A father and his two sons had carried on the business as partners from 1856 to 1886; the father died in 1886 but the sons continued the business until 1893 when one of the sons died. The deceased son’s executor brought an action against the . .
Cited – Strover v Harrington 1988
A property was at first wrongly described by the agents as having mains drainage. Correcting information was sent to the buyer’s solicitors by the Agents, but the solicitors did not pass on the correction to their client. The mistake was later . .
Cited – Lazarus Estates Ltd v Beasley CA 1956
There was a privative clause in the 1954 Act. A landlord’s declaration under the Act that work of a specified value, supporting an increase in rent, had been carried out on leased premises, could not be questioned after 28 days of its service on the . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Cited – Kyle Bay Ltd (T/A Astons Nightclub) v Underwriters CA 7-Feb-2007
The claimant had been insured under a business interruption insurance policy issued by the respondent defendaants. A claim had arisen, and had been settled, but the caimant said that the parties had mistaken the basis of the policy and had settled . .
Cited – Redgrave v Hurd CA 1881
The plaintiff, an elderly solicitor wishing to retire, advertised for someone to enter into partnership with him and to buy his house. The defendant responded to the advertisement and negotiations followed, in which the plaintiff stated that the . .
Cited – Smith v Chadwick HL 18-Feb-1884
Unclear Words Insufficient as Representation
A purchaser claimed to have entered into the contract in reliance on the truth of a misrepresentation by the seller. The plaintiff claimed damages for deceit through having been induced to buy shares in an iron company by false representations in a . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Torts – Other

Updated: 21 April 2022; Ref: scu.567606

Lunt v Liverpool City Justices: CA 5 Mar 1991

A man of good reputation had been imprisoned for forty two days wholly unjustifiably for alleged default in payment of rates. He sought damages.
Held: The Court increased the award from andpound;13,500.00 to andpound;25,000.00. Commenting on Walter -v- Alltools: ‘I do not for my part doubt that that is a correct principle of law . .[counsel for the claimant] is, in my judgment, entitled to submit that any form of imprisonment gives rise to a stigma and that stigma is not removed until the reputation of the imprisoned party is vindicated in an appropriate manner.’

Judges:

Bingham LJ

Citations:

Unreported, 5th March 1991

Jurisdiction:

England and Wales

Citing:

Disapproved – Walter v Alltools 1944
The court considered damages to be awarded for false imprisonment: ‘ . . any evidence which tends to aggravate or mitigate the damage to a man’s reputation which flows naturally from his imprisonment must be admissible up to the moment when damages . .

Cited by:

Cited – Independent Assessor v O’Brien, Hickey, Hickey CA 29-Jul-2004
The claimants had been imprisoned for many years before their convictions were quashed. They claimed compensation under the Act. The assessor said that there should be deducted from the award the living expenses they would have incurred if they had . .
Cited – AT and others v Dulghieru and Another QBD 19-Feb-2009
The claimants had been subject to unlawful human trafficking. Their abductors had been imprisoned, and they now sought damages. The court was asked now to assess the damages to be awarded for sexual enslavement. Each claimant suffered chronic post . .
Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other

Updated: 20 April 2022; Ref: scu.199753

Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital: HL 21 Feb 1985

Explanation of Medical Risks essential

The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to consent to medical treatment for any reason, rational or irrational, or for no reason at all, even where that decision may lead to his or her own death.
However, where a patient does not ask as to the risks, Lord Diplock said: ‘we are concerned here with volunteering unsought information about risks of the proposed treatment failing to achieve the result sought or making the patient’s physical or mental condition worse rather than better. The only effect that mention of risks can have on the patient’s mind, if it has any at all, can be in the direction of deterring the patient from undergoing the treatment which in the expert opinion of the doctor it is in the patient’s interest to undergo. To decide what risks the existence of which a patient should be voluntarily warned and the terms in which such warning, if any, should be given, having regard to the effect that the warning may have, is as much an exercise of professional skill and judgment as any other part of the doctor’s comprehensive duty of care to the individual patient, and expert medical evidence on this matter should be treated in just the same way. The Bolam test should be applied.’ and ‘a doctor’s duty of care, whether he be general practitioner or consulting surgeon or physician is owed to that patient and none other, idiosyncrasies and all.’ .’
Lord Scarman said: ‘Damage is the gist of the action of negligence’

Judges:

Lord Templeman, Lord Diplock, Lord Scarman, Lord Keith

Citations:

[1985] 1 All ER 643, [1985] 2 WLR 480, [1985] AC 871, [1985] UKHL 1

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .
Cited – Maynard v West Midlands Regional Health Authority HL 1985
The test of professional negligence is the standard of the ordinary skilled man exercising and professing to have that special skill. Lord Scarman said: ‘a doctor who professes to exercise a special skill must exercise the ordinary skill must . .
Cited – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .

Cited by:

Cited – Airedale NHS Trust v Bland CA 9-Dec-1992
The official Solicitor appealed against a decision that doctors could withdraw medical treatment including artificial nutrition, from a patient in persistent vegetative state.
Held: The doctors sought permission to act in accordance with . .
Cited – Airedale NHS Trust v Bland HL 4-Feb-1993
Procedures on Withdrawal of Life Support Treatment
The patient had been severely injured in the Hillsborough disaster, and had come to be in a persistent vegetative state (PVS). The doctors sought permission to withdraw medical treatment. The Official Solicitor appealed against an order of the Court . .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – In re MB (Medical Treatment) CA 26-Mar-1997
The patient was due to deliver a child. A delivery by cesarean section was necessary, but the mother had a great fear of needles, and despite consenting to the operation, refused the necessary consent to anesthesia in any workable form.
Held: . .
Cited – AB and others v Leeds Teaching Hospital NHS Trust, Cardiff and Vale NHS Trust QBD 26-Mar-2004
Representative claims were made against the respondents, hospitals, pathologists etc with regard to the removal of organs from deceased children without the informed consent of the parents. They claimed under the tort of wrongful interference.
Followed – In re T (Adult: Refusal of Treatment) CA 1992
A patient’s right to veto medical treatment is absolute: ‘This right of choice is not limited to decisions which others might regard as sensible. It exists notwithstanding that the reasons for making the choice are rational, irrational, unknown or . .
Cited – Pearce and Pearce v United Bristol Healthcare NHS Trust CA 20-May-1998
A doctor advised a mother to delay childbirth, but the child was then stillborn. She complained that he should have advised her of the risk of the baby being stillborn.
Held: ‘In a case where it is being alleged that a plaintiff has been . .
Cited – Chester v Afshar HL 14-Oct-2004
The claimant suffered back pain for which she required neurosurgery. The operation was associated with a 1-2% risk of the cauda equina syndrome, of which she was not warned. She went ahead with the surgery, and suffered that complication. The . .
Cited – Gregg v Scott HL 27-Jan-2005
The patient saw his doctor and complained about a lump under his arm. The doctor failed to diagnose cancer. It was nine months before treatment was begun. The claimant sought damages for the reduction in his prospects of disease-free survival for . .
Cited – Moy v Pettman Smith (a firm) and another HL 3-Feb-2005
Damages were claimed against a barrister for advice on a settlement given at the door of the court. After substantial litigation, made considerably more difficult by the negligence of the solicitors, the barrister had not advised the claimant at the . .
Cited – JD v East Berkshire Community Health NHS Trust and others HL 21-Apr-2005
Parents of children had falsely and negligently been accused of abusing their children. The children sought damages for negligence against the doctors or social workers who had made the statements supporting the actions taken. The House was asked if . .
Cited – Powell and Another v Boldaz and others CA 1-Jul-1997
The plaintiff’s son aged 10 died of Addison’s Disease which had not been diagnosed. An action against the Health Authority was settled. The parents then brought an action against 5 doctors in their local GP Practice in relation to matters that had . .
Cited – F v West Berkshire Health Authority HL 17-Jul-1990
The parties considered the propriety of a sterilisation of a woman who was, through mental incapacity, unable to give her consent.
Held: The appeal succeeded, and the operation would be lawful if the doctor considered it to be in the best . .
Cited – McFaddens (A Firm) v Platford TCC 30-Jan-2009
The claimant firm of solicitors had been found negligent, and now sought a contribution to the damages awarded from the barrister defendant. They had not managed properly issues as to their clients competence to handle the proceedings.
Held: . .
Applied – Montgomery v Lanarkshire Health Board SCS 30-Jul-2010
Outer House – The pursuer sought damages for personal injuries to her son at his birth, alleging negligence by the medical staff at the defender hospital. She said that she had been advised a cesarian birth for her child, but the doctors had not . .
Cited – NM v Lanarkshire Health Board SCS 23-Jan-2013
Inner House – The pursuer and reclaimer sought reparation for son after grave injury sustained at his birth in a maternity hospital run by the defenders and respondents. She attributes that injury to negligence in a consultant obstetrician. . .
Criticised – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Nicklinson and Another, Regina (on The Application of) SC 25-Jun-2014
Criminality of Assisting Suicide not Infringing
The court was asked: ‘whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions relating to . .
Cited – Freeman v Home Office (No 2) CA 1984
A prisoner brought an action in battery against a prison doctor for administering drugs to him by injection. He argued that he was incapable of consenting to the procedure because he was in the defendant’s custody. . He failed at trial.
Held: . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Negligence

Leading Case

Updated: 19 April 2022; Ref: scu.180380

In re D (A Child): SC 26 Sep 2019

D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, and whether his parents could give consent for it.
Held: (LL Carnwath and Lloyd-Jones dissenting) It was not within the scope of parental responsibility for D’s parents to consent to a placement which deprived him of his liberty. Although there is no doubt that they, and indeed everyone else involved, had D’s best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must. In this case, D enjoyed the safeguard of the proceedings in the Court of Protection. In future, the deprivation of liberty safeguards contained in the Mental Capacity Act 2005 (as amended by the Mental Capacity (Amendment) Act 2019) will apply to children of 16 and 17. I

Judges:

Lady Hale, President, Lord Carnwath, Lady Black, Lord Lloyd-Jones, Lady Arden

Citations:

[2019] UKSC 42, [2019] PTSR 1816, [2020] MHLR 135, [2020] COPLR 73, [2020] 1 FLR 549, [2019] HRLR 18, [2019] 1 WLR 5403, [2020] 2 All ER 399, (2019) 22 CCL Rep 475, [2019] 3 FCR 631, (2020) 171 BMLR 51, [2019] WLR(D) 587

Links:

Bailii, Bailii Summary, SC, SC Press Summary, SC Summary Video, SC 2018 Oct 03 am Video, SC 2018 Oct 03 pm Video, SC 2018 Oct 04 am Video, WLRD

Statutes:

European Convention on Human Rights 8, Mental Capacity Act 2005, Guardianship of Infants Act 1925, Children Act 1989 1(1) 25, Children (Secure Accommodation) Regulations 1991

Jurisdiction:

England and Wales

Citing:

At First Instance – RK v BCC and Others CA 20-Dec-2011
A young woman aged 17 suffered from autism, attention deficit hyperactivity disorder and severe learning difficulties, as well as epilepsy. She had been looked after at home for nearly 16 years but was then accommodated by the local authority under . .
Appeal From – Re D (A Child) CA 31-Oct-2017
The court considered an order effectively depriving child D of his liberty. . .
Cited – Storck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .
Cited – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – Rusi Kosev Stanev v Bulgaria ECHR 17-Jan-2012
. .
Cited – Gillick v West Norfolk and Wisbech Area Health Authority and Department of Health and Social Security HL 17-Oct-1985
Lawfulness of Contraceptive advice for Girls
The claimant had young daughters. She challenged advice given to doctors by the second respondent allowing them to give contraceptive advice to girls under 16, and the right of the first defendant to act upon that advice. She objected that the . .
Cited – The Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .
At CoP – Birmingham City Council v D CoP 21-Jan-2016
D was a young adult with several disorders presenting challenging behaviour. The Hospital sought arrangements allowing control over him for his care and education. . .
Cited – In re AB (A Child : Deprivation of Liberty) FD 28-Jul-2015
The court was asked who, as between the parents and the local authority, could consent to an order depriving a child in residential care, of his liberty.
Held: A local authority with parental responsibility by virtue of a care order or interim . .
Cited – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .
Cited – In re Agar-Ellis (No 2) CA 24-Jul-1883
A father has a legal right to control and direct the education and bringing up of his children until they attain the age of twenty-one years, even although they are wards of Court, and the Court will not interfere with him in the exercise of his . .
Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .
Cited – Hewer v Bryant CA 1969
The issue was the meaning of ‘in the custody of a parent’ in the Limitation Act 1954.
Held: A 15-year-old living away from home and working as an agricultural trainee was not in the custody of a parent for this purpose. ‘Custody’ in the . .
Cited – Regina v Howard 1966
A child below the age of 16 could consent to sexual intercourse so that it was not rape . .
Cited – Regina v D HL 1984
D was convicted for kidnapping his 5-year old daughter, a ward of court, who was in the care and control of her mother. The CA held that there was no such offence as the kidnapping of a child under 14, that it could not be committed by a parent, and . .
Cited – HL v United Kingdom ECHR 2004
Lack of Patient Safeguards was Infringement
The claimant had been detained at a mental hospital as in ‘informal patient’. He was an autistic adult. He had been recommended for release by the Mental Health Review Tribunal, and it was decided that he should be released. He was detained further . .
Cited – Stefan Stankov v Bulgaria ECHR 17-Mar-2015
. .
Cited – The Queen v Howes 23-Nov-1860
a father sought the delivery to him of a girl of 15 who was unwilling to return to him, and had been brought into court in obedience to a writ of habeas corpus and interviewed privately by the judges before they heard argument. Cockburn CJ, giving . .
Cited – Rex v Greenhill 29-Jan-1836
The children were all under six years of age and were with their mother. Their father obtained an order for them to be delivered up to him and their mother applied for that to be set aside.
Held: She was unsuccessful, a father being entitled . .
Cited – Mihailovs v Latvia ECHR 22-Jan-2013
. .
Cited – DD v Lithuania ECHR 14-Feb-2012
. .
Cited – Stanev v Bulgaria ECHR 17-Jan-2012
The court observed, in passing, that ‘there are situations where the wishes of a person with impaired mental facilities may be validly replaced by those of another person acting in the context of a protective measure and that it is sometimes . .
Cited – Thomasset v Thomasset CA 1894
The machinery of enforcement of payment of maintenance was laid down in the Poor Laws: ‘As regards maintenance, the parents’ obligations were measured both at law and in equity by the Poor Laws’.
After quoting Coleridge J in Greenhill, Lindley . .
Cited – Regina v Maria Clarke 21-Jan-1857
The court was asked whether the ten year old girl’s widowed mother, as her guardian for nurture, had a legal right to custody against the wishes of the girl, however intelligent she was, or whether the court was bound to examine the child to . .
Cited – Re T (A Child) CA 4-Oct-2018
The appellant was 15 years old and subject to a full care order. The local authority proposed that she be detained in a unit which was not an approved children’s home, and sought authority from the High Court for the restriction of the child’s . .
Cited – Regina v Gyngall 1893
The father of the child (a girl of about 15) was dead and it was the mother who was the guardian, it seems by operation of the Guardianship of Infants Act 1886. The decision of the first instance court not to return the girl to her mother, despite . .
Cited – Ferreira, Regina (on The Application of) v HM Senior Coroner for Inner South London CA 26-Jan-2017
The situation where a person is taken into an intensive care unit for the purpose of life-saving treatment and is unable to give their consent to their consequent loss of liberty, does not result in a deprivation of liberty for article 5 purposes so . .
Cited – Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital HL 21-Feb-1985
Explanation of Medical Risks essential
The plaintiff alleged negligence in the failure by a surgeon to disclose or explain to her the risks inherent in the operation which he had advised.
Held: The appeal failed. A mentally competent patient has an absolute right to refuse to . .
Cited – Re H-B (Contact) CA 22-Apr-2015
F’s appeal against orders made on his application for contact refusing him direct contact.
Sir James Munby P said: ‘. . parental responsibility is more, much more than a mere lawyer’s concept or a principle of law. It is a fundamentally . .
Cited – Nielsen v Denmark ECHR 28-Nov-1988
The applicant, a minor, complained about his committal to a child psychiatric ward of a state hospital at his mother’s request. The question was whether this was a deprivation of his liberty in violation of article 5. The applicant said that it was, . .
Cited – In Re C (A Minor) (Medical Treatment: Court’s Jurisdiction); Re C (Detention: Medical Treatment) FD 21-Mar-1997
A children’s clinic is not secure accommodation, and the court may make orders for his or her treatment whilst in the clinic. The court discussed whether the state had power if necessary to detain a child using its parens patriae powers to give . .
Cited – Montgomery v Lanarkshire Health Board SC 11-Mar-2015
Change in Doctors’ Information Obligations
The pursuer claimed that her obstetrician had been negligent, after her son suffered severe injury at birth. The baby faced a birth with shoulder dystocia – the inability of the shoulders to pass through the pelvis. The consultant considered that a . .
Cited – Regina v Secretary of State for the Home Department Ex Parte A HL 27-Jan-2000
A youth had been remanded into the care of the local authority pending his trial. He was eventually made subject to a custodial sentence and sought to have the period of remand deducted from his sentence. The period in care had not been in a secure . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Torts – Other, Health Professions, Children

Updated: 19 April 2022; Ref: scu.642320

Re D (A Child ; Deprivation of Liberty): FD 31 Mar 2015

The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of its actions.

Judges:

Keehan J

Citations:

[2015] EWHC 922 (Fam), [2015] 3 FCR 60, (2015) 144 BMLR 210, [2015] Fam Law 636, [2016] 1 FLR 142, [2015] COPLR 209

Links:

Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Citing:

Cited – In Re K (A Child) (Secure Accommodation Order: Right to Liberty) CA 29-Nov-2000
An order providing that a child should stay in secure accommodation, was an order which restricted the child’s liberty. A justification for such a restriction had to be brought within the exceptions listed in article 5.
Held: Detention for . .
See Also – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .

Cited by:

See Also – Re D (A Child ; Deprivation of Liberty) FD 31-Mar-2015
The child, now 15 suffered several conditions which led to his challenging behaviour. He had been voluntarily admitted for assessment, and awaited placement in the community, but the Health trust now sought directions confirming the lawfulness of . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Children, Health Professions, Torts – Other, Human Rights

Updated: 18 April 2022; Ref: scu.545014

P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar: SC 19 Mar 2014

Deprivation of Liberty

P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult male, again without capacity, also complained as to the arrangements for his care, and the lack of restraint on the deprivation of his liberty. The Court now considered the criteria for judging whether the living arrangements made for a mentally incapacitated person amount to a deprivation of liberty.
Held: (Lord Clarke of Stone-cum-Ebony, Lord Carnwath and Lord Hodge JJSC dissenting) A person suffering a mental incapacity has no lesser rights to personal freedom than someone with capacity. The appeals of P and Q succeeded. An arrangement which would amount to a deprivation of liberty for a person with capacity is equally a deprivation of liberty of someone without. Any system providing such restrictions must include periodic and independent checks to verify that any such restriction remained necessary and in their personal best interests.
The phrase ‘deprivation of liberty’ when used to apply to living arrangements for a person without capacity was to be construed as providing the same protection as Article 5 of the Convention. Though each case was to be decided as a matter of the particular facts.
Otherwise: Surrey County Council v P; Cheshire West and Chester Council v P

Judges:

Lord Neuberger, President, Lady Hale, Deputy President, Lord Kerr, Lord Clarke, Lord Sumption, Lord Carnwath, Lord Hodge

Citations:

[2014] UKSC 19, (2014) 17 CCL Rep 5, [2014] HRLR 13, [2014] 2 WLR 642, [2014] 2 All ER 585, [2014] WLR(D) 140, [2014] 2 FCR 71, [2014] PTSR 460, [2014] COPLR 313, UKSC 2012/0068, [2014] AC 896, (2014) 137 BMLR 16, [2014] Med LR 321

Links:

Bailii, Bailii Summary, WLRD, SC Summary, SC

Statutes:

Mental Capacity Act 2005 64(5), European Convention on Human Rights 5

Jurisdiction:

England and Wales

Citing:

At CoP – A Primary Care Trust v P and Others Misc 21-Dec-2009
(Court of Protection) The court was asked whether, if P could be found to lack mental capacity where he should live, where there was an essential conflict between representatives of the State who owe statutory duties to P on the one hand, and the . .
See Also – Cheshire West and Chester Council v P CA 18-Nov-2011
. .
Appeal from – Cheshire West and Chester Council v P CA 9-Nov-2011
The claimant, a disabled adult with cerebral palsy and Downs, asserted that the care plan set out in an order of the Court of Protection involved a contravention of his human rights since it involved a deprivation of his liberty. He was incontinent . .
See Also – Cheshire West and Chester Council v P and Another COP 14-Jun-2011
The patient, an adult without capacity and with Down’s syndrome and cerebral palsy complained of his treatment, when in order to prevent his habit of eating his nappy, they dressed him in an adult babygrow costume. The court was asked whether the . .
Cited – P and Q v Surrey County Council CA 28-Feb-2011
The appellant sisters, both with substantial learing disabilities appealed against a declaration that the arrangements made for their care by the respondent did not amount to a deprivation of their liberty. In either case, they would only be allowed . .
Adopted – Storck v Germany ECHR 16-Jun-2005
ECHR Judgment (Merits and Just Satisfaction) – Preliminary objection rejected ( res iudicata ); Violation of Art. 5-1 (placement in private clinic from 1977 to 1979); No separate issue under Arts. 5-4 and 5-5; No . .

Cited by:

Applied – In re X and Others (Deprivation of Liberty) CoP 7-Aug-2014
inreX_dolCoP1408
The court considered the practical and procedural implications for the Court of Protection of what was expected too be a large increase in its case-load which following the Supreme Court’s decision in Surrey County Council v P where it was held that . .
Cited – The Secretary of State for Justice v MM CA 29-Mar-2017
Power of FTT to deprive patient of liberty
Two patients who had been confined to a secure hospital, appealed against orders which would continue to restrict their liberty upon being conditionally released. The parties now disputed the jurisdiction of the FTT to make such an order.
Cited – Secretary of State for Justice v MM SC 28-Nov-2018
The respondent had been detained after conviction for arson, under the 1983 Act, and was liable to indefinite detention in hospital for medical treatment and dischargeable only by the Appellant or the First Tier Tribunal, possibly only as a . .
Cited – Welsh Ministers v PJ SC 17-Dec-2018
A patient detained under the Mental Health Act 1983 (MHA) may be released from compulsory detention in hospital subject to a community treatment order. The question arising on this appeal is whether a patient’s responsible clinician (may impose . .
Cited – In re D (A Child) SC 26-Sep-2019
D, a young adult had a mild learning disability and other more serious conditions. He was taken into a hospital providing mental health services. The external door was locked, and a declaration was sought to permit this deprivation of his liberty, . .
Lists of cited by and citing cases may be incomplete.

Health, Torts – Other, Human Rights

Leading Case

Updated: 18 April 2022; Ref: scu.522603

Gujra v Roath and Another: QBD 19 Apr 2018

The claimant appealed from the striking out of his claim. He said that he had burned a car belonging to the defendant at his request. The court had said that if the request had been made as asserted then he must have known that the arrangement would form the basis of an intended insurance fraud.
Held: The appeal failed, though the court should be slow to look to find prima facie dishonesty at a preliminary hearing.

Judges:

Martin Spencer J

Citations:

[2018] EWHC 854 (QB), [2018] WLR(D) 235

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Contract, Torts – Other

Updated: 13 April 2022; Ref: scu.609111

Husayn (Zubaydah) v The Foreign and Commonwealth Office and Others: QBD 19 Feb 2021

Allegation that representatives of the defendant had taken advantage of the claimant’s illegal imprisonment and torture by the CIA, to have questions put to him. The court now looked at which law would apply.

Judges:

Mr Justice Lane

Citations:

[2021] EWHC 331 (QB), [2022] 4 WLR 40

Links:

Bailii

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995 11 12

Jurisdiction:

England and Wales

Torts – Other

Updated: 13 April 2022; Ref: scu.658838

Belhaj and Another v Straw and Others: CA 30 Oct 2014

Judiciary 1. In these proceedings the appellants seek a declaration of illegality and damages arising from what they contend was the participation of the respondents in their unlawful abduction, kidnapping and removal to Libya in March 2004. The claim includes allegations that they were unlawfully detained and/or mistreated in China, Malaysia, Thailand and Libya, and on board a US registered aircraft. It is alleged that their detention and mistreatment was carried out by agents of China, Malaysia, Thailand, Libya and the United States of America. The claim pleads the following causes of action: false imprisonment, trespass to the person, conspiracy to injure, conspiracy to use unlawful means, negligence and misfeasance in public office.
2. We must emphasise that the hearings below and on this appeal have been conducted on the basis of the pleadings lodged by the parties. As matters stand these are no more than allegations.
3. On behalf of the respondents it is submitted that the proceedings are barred by state immunity and the act of state doctrine.
4. We agree with the judge that state immunity does not bar these proceedings.
5. However, we also consider that the claim is not barred by the act of state doctrine because it falls within a limitation on grounds of public policy in cases of violations of international law and fundamental human rights. In coming to this conclusion we are influenced, in particular, by the following considerations:
(1) The allegations in this case – although they are only allegations – are of particularly grave violations of international law and human rights in the form of torture and unlawful rendition.
(2) The respondents in these proceedings are either current or former officers or officials of state in the United Kingdom or government departments or agencies. Their conduct, considered in isolation, would not normally be exempt from investigation by the courts. On the contrary there is a compelling public interest in the investigation by the English courts of these allegations.
(3) This is not a case in which there is a lack of judicial or manageable standards. On the contrary, the applicable principles of international law and domestic law are clearly established.
(4) Unless the English courts were able to exercise jurisdiction in this case, these very grave allegations would go uninvestigated and the appellants would be left without any legal recourse or remedy.

Judges:

Lord Dyson MR, Lloyd Jones, Sharp LJJ

Citations:

[2014] EWCA Civ 1394, [2014] WLR(D) 459, [2015] 2 WLR 1105, [2016] 1 All ER 121

Links:

Bailii, Judiciary Summary, WLRD

Jurisdiction:

England and Wales

Citing:

Appeal from – Belhaj and Another v Straw and Others QBD 20-Dec-2013
The Claimants sought a declaration of illegality and claim damages arising from what they contend was the participation of the seven Defendants in their unlawful abduction, kidnapping and illicit removal across state borders to Libya in March 2004. . .

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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, News, International

Updated: 12 April 2022; Ref: scu.538185

Rahmatullah v The Ministry of Defence: QBD 19 Nov 2014

Judges:

Leggatt J

Citations:

[2014] EWHC 3846 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – Rahmatullah v Secretary of State for Foreign Affairs and Another Admn 29-Jul-2011
The claimant, a Pakistani national, detained by US Armed forces in Bagram in Afghanistan, sought a writ of habeas corpus. He had been first captured by British forces in Iraq in 2004, and transferred to US military under a Memorandum of . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Human Rights, International

Updated: 12 April 2022; Ref: scu.538898

Belhaj and Another v Straw and Others: QBD 20 Dec 2013

The Claimants sought a declaration of illegality and claim damages arising from what they contend was the participation of the seven Defendants in their unlawful abduction, kidnapping and illicit removal across state borders to Libya in March 2004. The claim encompassed allegations that they were unlawfully detained and/or mistreated in four foreign states, China, Malaysia, Thailand, and Libya, and on board a US-registered aircraft; and that their detention and mistreatment was carried out by agents of the States concerned.

Judges:

Simon J

Citations:

[2013] EWHC 4111 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Appeal from – Belhaj and Another v Straw and Others CA 30-Oct-2014
Judiciary 1. In these proceedings the appellants seek a declaration of illegality and damages arising from what they contend was the participation of the respondents in their unlawful abduction, kidnapping and . .
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.

Torts – Other

Updated: 12 April 2022; Ref: scu.519765

Cheshire West and Chester Council v P and Another: COP 14 Jun 2011

The patient, an adult without capacity and with Down’s syndrome and cerebral palsy complained of his treatment, when in order to prevent his habit of eating his nappy, they dressed him in an adult babygrow costume. The court was asked whether the circumstances in which a man who lacks capacity amount to a deprivation of liberty.
Held: The circumstances of P’s life at Z House, and the provision of care and support as set out in the amended care plan, amount to a deprivation of liberty within the meaning of Article 5 of ECHR and the Mental Capacity Act 2005.
Baker J described the general process of the Court of Protection: ‘The processes of the Court of Protection are essentially inquisitorial rather than adversarial. In other words, the ambit of the litigation is determined, not by the parties, but by the court, because the function of the court is not to determine in a disinterested way a dispute brought to it by the parties, but rather, to engage in a process of assessing whether an adult is lacking in capacity, and if so, making decisions about his welfare that are in his best interests.’

Judges:

Baker J

Citations:

[2011] EWHC 1330 (Fam), [2011] EWHC 1330 (COP), [2011] EWCOP 1330

Links:

Bailii, Bailii

Statutes:

Mental Capacity Act 2005

Jurisdiction:

England and Wales

Cited by:

Appeal From – Cheshire West and Chester Council v P CA 9-Nov-2011
The claimant, a disabled adult with cerebral palsy and Downs, asserted that the care plan set out in an order of the Court of Protection involved a contravention of his human rights since it involved a deprivation of his liberty. He was incontinent . .
See Also – Cheshire West and Chester Council v P CA 18-Nov-2011
. .
See Also – P (By His Litigation Friend The Official Solicitor) v Cheshire West and Chester Council and Another and similar SC 19-Mar-2014
Deprivation of Liberty
P and Q were two adolescent sisters without capacity. They complained that the arrangements made for their care amounted to an unjustified deprivation of liberty, and now appealed against rejection of their cases. In the second case, P, an adult . .
Cited – AMDC v AG and Another CoP 18-Nov-2020
Guidance for Expert Witnesses on Capacity
The court was asked as to the preparation and use of expert reports as to the capacity of a patient litigant.
Held: Poole J discussed what was need of expert witness in such cases: ‘it will benefit the court if the expert bears in mind the . .
Lists of cited by and citing cases may be incomplete.

Health, Human Rights, Torts – Other

Updated: 12 April 2022; Ref: scu.445032

Regina v Governor of Richmond Remand Centre, Ex Parte Asghar: QBD 1971

The Secretary of State had detained two persons who were awaiting removal with the object that they should testify in a pending criminal trial. Lord Parker J rejected the suggestion that the detention could be justified as reasonable in these circumstances, stating: ‘it does seem to me that while a reasonable time is contemplated between the giving of the directions and the final removal, that is a reasonable time necessary to effect the physical removal’.
He considered the length of time for which the plaintiff had been detained after release from prison but pending deportation saying: ‘even if . . valid directions were given, the question remains whether, persuant to paragraph 4(1), the applicants continued thereafter, that is after the directions, to be held pending removal in pursuance of such directions. It quite clearly contemplates, of course, that there will be some interval of time between the giving of the directions and their implementation, and for that period of time there is authority to detain. But when one turns to the facts of this case, the reality of the position is that the applicants were being detained pending the trial at the Central Criminal Court at which they were required to give evidence. Accordingly on that second ground I think that detention was not justified.
Mr Slynn has argued very forcibly that of course the period contemplated that may elapse between the giving of the directions and the actual removal must be a reasonable period. He says here that in all the circumstances it was reasonable for the Secretary of State to require the detention of these two men pending the completion of the trial at the Central Criminal Court.
Much as I wish I could accede to that argument, it does seem to me that while a reasonable time is contemplated between the giving of the directions and the final removal, that is a reasonable time necessary to effect the physical removal, the truth of the matter is that the Home Office naturally desires to do nothing which will interfere with the trial. One sympathises with this object, but of course it can be achieved, by giving these applicants conditional permits. There are obvious practical reasons why this course is not adopted, because as experience has shown, nothing may ever be seen of the applicants again.’

Judges:

Lord Parker LCJ

Citations:

[1971] 1 WLR 129

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Governor of Durham Prison, ex parte Hardial Singh QBD 13-Dec-1983
Unlawful Detention pending Deportation
An offender had been recommended for deportation following conviction. He had served his sentence and would otherwise have been released on parole. He had no passport and no valid travel documents. He complained that the length of time for which he . .
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 . .
Lists of cited by and citing cases may be incomplete.

Immigration, Torts – Other

Updated: 12 April 2022; Ref: scu.425351

Conway v George Wimpey and Co Ltd: CA 1951

A number of contractors were employed in work at the Heathrow Airport. The defendant company had instituted a bus service for their own employees and the driver was prohibited by the defendant company from giving lifts to anyone other than their own employees.
Held: The claim failed. The act of the driver in giving a lift to the plaintiff was outside the scope of his employment. It was not merely a wrongful mode of performing an act of the class which the driver was employed to perform, but was the performance of an act which he was not employed to perform.
Asquith LJ said: ‘I should hold that taking men not employed by the defendants on to the vehicle was not merely a wrongful mode of performing the act of the class this driver was employed to perform, but was the performance of an act of a class ‘which he was not employed to perform at all.’

Judges:

Asquith LJ

Citations:

[1951] 2 KB 266

Jurisdiction:

England and Wales

Cited by:

Not Followed – Rose v Plenty CA 7-Jul-1975
Contrary to his employers orders, a milkman allowed children to assist him in his milkround. One was injured, and sued the milkman’s employer.
Held: The milkman had not gone so far outside the activities for which he was employed for the . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Vicarious Liability

Updated: 12 April 2022; Ref: scu.278318

Ludlow and Others v Burgess: 1972

A police officer has no more right to lay hands on someone than any other member of the community. The person so restrained is entitled to use reasonable force to free himself.

Judges:

Parker LCJ

Citations:

(1972) 75 Cr App R 227

Jurisdiction:

England and Wales

Cited by:

Cited – Wood v Director of Public Prosecutions Admn 14-May-2008
The defendant challenged his conviction for obstructing a police officer and threatening behaviour. The officer had taken hold of him to restrain him, not intending to arrest him, but only to establish whether he was a person they were looking for. . .
Lists of cited by and citing cases may be incomplete.

Crime, Police, Torts – Other

Updated: 12 April 2022; Ref: scu.272770

Fontin v Katapodis: 10 Dec 1962

(High Court of Australia) The plaintiff struck the defendant with a weapon, a wooden T-square. It broke on his shoulder. The defendant then picked up a sharp piece of glass with which he was working and threw it at the plaintiff, causing him severe injury. The Judge had reduced the damages from andpound;2,850 to andpound;2,000 by reason of the provocation.
Held: Provocation could be used to wipe out the element of exemplary or aggravated damages but could not be used to reduce the actual figure of pecuniary compensation. So they increased the damages to the full andpound;2,850.

Judges:

Sir Owen Dixon CJ, McTiernan, Owen JJ

Citations:

[1962] 108 CLR 177, [1963] ALR 582, 36 ALJR 283, [1962] HCA 63

Links:

Austlii

Jurisdiction:

England and Wales

Cited by:

Approved – Lane v Holloway CA 30-Jun-1967
In the context of a fight with fists, ordinarily neither party has a cause of action for any injury suffered during the fight. But they do not assume ‘the risk of a savage blow out of all proportion to the occasion. The man who strikes a blow of . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 12 April 2022; Ref: scu.258462

Morris v Kanssen: HL 1946

The House considered the effect of provisions relating to the acts of directors in the 1929 Act. Lord Simonds said: ‘There is, as it appears to me, a vital distinction between (a) an appointment in which there is a defect or, in other words, a defective appointment, and (b) no appointment at all. In the first case it is implied that some act is done which purports to be an appointment but is by reason of some defect inadequate for the purpose; in the second case there is not a defect, there is no act at all. The section does not say that the acts of a person acting as director shall be valid notwithstanding that it is afterwards discovered that he was not appointed a director. Even if it did, it might well be contended that at least a purported appointment was postulated. But it does not do so, and it would, I think, be doing violence to plain language to construe the section as covering a case in which there has been no genuine attempt to appoint at all. These observations apply equally where the term of office of a director has expired, but he nevertheless continues to act as a director, and where the office has been from the outset usurped without the colour of authority.’

Judges:

Lord Simonds

Citations:

[1946] AC 459, [1946] 1 All ER 586, 115 LJ Chancery 177

Statutes:

Companies Act 1929 143

Jurisdiction:

England and Wales

Citing:

Explained – Royal British Bank v Turquand CEC 1856
The plaintiff sought payment from the defendants, a joint stock Company, on a bond, signed by two directors, under the seal of the Company whereby the Company acknowledged themselves to be bound to the plaintiff in pounds 2,000. The company said . .

Cited by:

Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .
Cited – Re Richborough Furniture Ltd ChD 21-Aug-1995
The court was faced with the question whether one of the three respondents, who was not a director of the company de jure, was nevertheless a director of the company de facto and as such liable to disqualification.
Held: A de facto director . .
Applied – Re New Cedos Engineering Company Ltd 1994
The company had two directors. On a death the inheritor of a members shares were entitled to have their shares registered. The majority shareholder died. The remaining board refused to register his widow as owner of the shares. She remarried, and . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Company

Updated: 12 April 2022; Ref: scu.251747

Dimbleby and Sons v National Union of Journalists: HL 1984

The Trades Union caused its members to withdraw their labour from the plaintiff, so preventing the plaintiff from performing a contract with a firm of printers. The conduct was aimed, primarily, not at the plaintiff but at the printers, with whom the union was in dispute.
Held: The plaintiff’s claim for an injunction was upheld.

Citations:

[1984] 1 WLR 427

Jurisdiction:

England and Wales

Citing:

Appeal from – Dimbleby and Sons v National Union of Journalists CA 1983
. .

Cited by:

Cited – Douglas and others v Hello! Ltd and others (No 3) CA 18-May-2005
The principal claimants sold the rights to take photographs of their wedding to a co-claimant magazine (OK). Persons acting on behalf of the defendants took unauthorised photographs which the defendants published. The claimants had retained joint . .
Cited – Douglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Employment

Updated: 12 April 2022; Ref: scu.225472

Kemp Properties (UK) Ltd v Dentsply Research and Development Corporation: 1989

The court considered a Solicitor’s possible personal liability for misrepresentation made in replies given to enquiries before contract on acting on the sale of land.

Citations:

[1989] 2 EGLR 205

Jurisdiction:

England and Wales

Cited by:

Cited – First National Commercial Bank Plc v Loxleys (a Firm) CA 6-Nov-1996
The plaintiff claimed damages from the seller of land and from their solicitors for misrepresentation in the replies to enquiries before contract. He appealed a striking out of his claim.
Held: A lawyer’s disclaimer placed on his Replies to . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other

Updated: 12 April 2022; Ref: scu.220835

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 involved personally. The court had been correct to reject the claim against the state. Despite other developments, states still enjoyed immunity from such claims, and normally its officials should receive the same protection, and even if the official had infringed the country’s national law. However claims against officials could not be given blanket protection, because that would deprive applicants such as the present of any remedy. A delicate balancing act would be required in each case to test the various issues of jurisdiction and human rights. However the offence of torture itself had a special status under international law, and such acts could not be the acts of a state. Claims to state immunity should be resolved at an early stage in the proceedings.

Judges:

Mance LJ

Citations:

[2004] EWCA Civ 1394, Times 01-Nov-2004, [2005] 2 WLR 808

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Aksionairnoye Obschestvo A M Luther v James Sagor and Co CA 1921
A claim was made as to property seized by a decree of Russian revolutionaries later recognised as the government.
Held: A court is required to recognise a foreign state’s dealings with private proprietary rights within its jurisdiction. An . .
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 – Rahimtoola v Nizam of Hyderabad HL 1957
A claim was made against the former High Commissioner for Pakistan personally for money had and received. He established that he had received the money in England in his official capacity as High Commissioner.
Held: Appeal allowed. The . .
Cited – Princess Paley Olga v Weisz 1929
English courts will refrain from examining the validity of foreign executive action relating to matters within the territorial jurisdiction of the foreign state. . .
Cited – Oppenheimer v Cattermole (Inspector of Taxes) HL 5-Feb-1975
HL Income tax, Schedule D – Foreign possessions – Double taxation relief – German government pension for past services – Paid to British subject of German origin – Whether German nationality deemed to be retained . .
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 – Church of Scientology 1978
(German Supreme Court) A claim to immunity by the defendant (the ‘Head of New Scotland Yard’) was not ‘derived from his person’, but was based on the fact that the act on which the claimant sued was ‘a sovereign act of State which can only be . .
Cited – Herbage v Meese 1990
(US) A claim was brought against British police officers and prosecuting counsel for knowingly and falsely stating, in the context of extradition proceedings against the claimant, that the United States had made a valid ‘provisional request’ for his . .
Cited – Regina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
Cited – Propend Finance Property Ltd and Others v Sing and Another CA 17-Apr-1997
Diplomatic immunity had not been waived by an Australian policeman acting in breach of a court undertaking re documents. The effect of s14(1) was to give state officials protection ‘under the same cloak’ as the state itself: ‘The protection afforded . .
Cited – Al-Adsani v Government of Kuwait and Others (No 2) CA 29-Mar-1996
The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he . .
Cited – Jaffe v Miller 1993
(Ontario Court of Appeal) Florida state officials were sued for alleged conspiracy maliciously to prosecute and to kidnap and detain the claimant, in order to blackmail him into giving up a civil suit.
Held: It is the character of the act, . .

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 . .
Cited – Alamieyeseigha, Regina (on the Application Of) v Crown Prosecution Service Admn 25-Nov-2005
The defendant argued that as Governor and Chief Excecutive of Bayelsa State in Nigeria he had sovereign immunity. The Foreign Office had issued a certificate that the defendant was not a Head of States under the 1978 Act. The A-G of Bayelsa had . .
Appeal from – 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 . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Personal Injury, Police, International

Updated: 12 April 2022; Ref: scu.219138

Blackburn, Low and Co v Vigors: CA 1886

Lord Esher MR: ‘This seems to me to be the true doctrine. The freedom from mis-representation or concealment is a condition precedent to the right of the assured to insist on the performance of the contract, so that on a failure of the performance of the condition the assured cannot enforce the contract.’ Lindley LJ: ‘It is a condition of the contract that there is no misrepresentation or concealment either by the assured or by anyone who ought as a matter of business and fair dealing to have stated or disclosed the facts to him or to the underwriter for him.’ Lord Halsbury LC warned against ‘the somewhat vague use of the word ‘agent” which, he said, ‘leads to confusion’ in insurance cases.

Judges:

Lord Esher MR, Lindley LJ,

Citations:

(1886) 17 QBD 553

Jurisdiction:

England and Wales

Citing:

Appealed to – Blackburn, Low and Co v Vigors HL 1887
There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: . .

Cited by:

Appeal from – Blackburn, Low and Co v Vigors HL 1887
There was a condition precedent of full disclosure of material facts in an insurance contract. The duty of an agent to disclose circumstances within his own knowledge to the insurer is independent of the duty of the insured to make disclosure, but: . .
Cited – HIH Casualty and General Insurance Limited and others v Chase Manhattan Bank and others HL 20-Feb-2003
The insurance company had paid claims on policies used to underwrite the production of TV films. The re-insurers resisted the claims against them by the insurers on the grounds of non-disclosure by the insured, or in the alternative damages for . .
Lists of cited by and citing cases may be incomplete.

Agency, Insurance, Torts – Other

Updated: 12 April 2022; Ref: scu.219303

Clarkson v Davies: PC 1923

In a case involving fraud, referring to Taylor v Davies, Lord Justice Clerk said that: ‘it was there laid down that there is a distinction between a trust which arises before the occurrence of the transaction impeached and cases which arises only by reason of that transaction.’

Judges:

Lord Justice Clerk

Citations:

[1923] AC 100

Citing:

Cited – Taylor v Davies PC 19-Dec-1919
(Ontario) An assignee for the benefit of creditors conveyed mortgaged property to the mortgagee in satisfaction of part of the debt due to him. The mortgagee was also one of the inspectors required by the Canadian legislation to supervise the . .

Cited by:

Cited – DEG-Deutsche Investitions und Entwicklungsgesellschaft mbH v Koshy and Other (No 3); Gwembe Valley Development Co Ltd (in receivership) v Same (No 3) CA 28-Jul-2003
The company sought to recover damages from a director who had acted dishonestly, by concealing a financial interest in a different company which had made loans to the claimant company. He replied that the claim was out of time. At first instance the . .
Cited – Dubai Aluminium Company Limited v Salaam and Others HL 5-Dec-2002
Partners Liable for Dishonest Act of Solicitor
A solicitor had been alleged to have acted dishonestly, having assisted in a fraudulent breach of trust by drafting certain documents. Contributions to the damages were sought from his partners.
Held: The acts complained of were so close to . .
Cited – Williams v Central Bank of Nigeria SC 19-Feb-2014
Bank not liable for fraud of customer
The appellant sought to make the bank liable for a fraud committed by the Bank’s customer, the appellant saying that the Bank knew or ought to have known of the fraud. The court was asked whether a party liable only as a dishonest assistant was a . .
Cited – Halton International Inc Another v Guernroy Ltd CA 27-Jun-2006
The parties had been involved in investing in an airline to secure its future, but it was now said that one party had broken the shareholders’ or voting agreement in not allowing further investments on a pari passu basis. The defendants argued that . .
Lists of cited by and citing cases may be incomplete.

Company, Trusts, Torts – Other

Updated: 12 April 2022; Ref: scu.187433

Kemp Properties (UK) Ltd v Dentsply Research and Development Corporation: 1991

The measure of damages is the same as for fraudulent misrepresentation i.e. all loss caused by the plaintiff having been induced to enter into the contract.

Judges:

Bingham LJ

Citations:

[1991] 2 EGLR 197

Statutes:

Misrepresentation Act 1967 2(1)

Jurisdiction:

England and Wales

Cited by:

Cited – William Sindall Plc v Cambridgeshire County Council CA 21-May-1993
Land was bought for development, but the purchaser later discovered a sewage pipe which very substantially limited its development potential. The existence of the pipe had not been disclosed on the sale, being unknown to the seller.
Held: . .
Cited – Smith New Court Securities Ltd v Scrimgeour Vickers HL 21-Nov-1996
The defendant had made misrepresentations, inducing the claimant to enter into share transactions which he would not otherwise have entered into, and which lost money.
Held: A deceitful wrongdoer is properly liable for all actual damage . .
Lists of cited by and citing cases may be incomplete.

Damages, Torts – Other

Updated: 12 April 2022; Ref: scu.185673

Everett v Ribbands: 1952

The court considered the tort of the malicious obtaining of a search warrant.

Citations:

[1952] 2 QB 198

Jurisdiction:

England and Wales

Cited by:

Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Police

Updated: 12 April 2022; Ref: scu.184701

Leather Cloth Co Ltd v American Leather Cloth Co Ltd: HL 1 Feb 1865

Where an individual works in a partnership the goodwill generated by his acts will in the normal course vest in the partnership.
Lord Kingsdown said: ‘Nobody doubts that a trader may be guilty of such misrepresentations with regard to his goods, as to amount to a fraud upon the public, and to disentitle him on that ground, as against a rival trader, to the relief in a court of equity which he might otherwise claim. What would constitute a misrepresentation of this description, may in particular cases be a reasonable subject of doubt, and it was in the present case the ground of the difference between the two judgments under consideration. The general rule seems to be that the mis-statement of any material fact calculated to deceive the public, will be sufficient for this purpose.’

Judges:

Lord Kingsdown

Citations:

(1865) 11 HL Cas 523, [1865] EngR 199, (1865) 11 HLC 523, (1865) 11 ER 1435

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See Also – The Leather Cloth Company v The American Leather Cloth Company 7-Jul-1863
Although a trade mark is not property as such, when a business is bona fide assigned, the right to exclusive use of the trade mark will pass with it. . .
Appeal from – The Leather Cloth Company, Limited, v The American Leather Cloth Company, Limited 5-Dec-1863
The jurisdiction of the Court of Chancery in the protection given to trade marks rests upon property, and the Court interferes by injunction, because that is the only mode by which property of this description can be effectually protected.

Cited by:

Cited – Cadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Cited – Inter Lotto (UK) Limited v Camelot Group Plc ChD 6-Jun-2003
The claimant asserted that the defendant had infringed its goodwill in the name ‘Hot Picks’ the defendant argued that it was licensed to use the mark by the person who applied for its registration as a trade mark, and that the claim in passing off . .
Cited – Bhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Torts – Other

Updated: 12 April 2022; Ref: scu.182304

Twinsectra Limited v Yardley, and similar: CA 30 Apr 1998

Citations:

[1998] EWCA Civ 759

Jurisdiction:

England and Wales

Cited by:

Appeal from – Twinsectra Ltd v Yardley and Others HL 21-Mar-2002
Solicitors acted in a loan, giving an undertaking as to its application. In breach of that undertaking they released it to the borrower. The appellants appealed a finding of liability as contributors to the breach.
Held: ‘Money in a . .
See Also – Twinsectra Limited v Yardley, and similar CA 1999
. .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Torts – Other

Updated: 12 April 2022; Ref: scu.144237

Whyfe v Michael Cullen and Partners and Others: CA 15 Nov 1993

The inclusion of a trick clause in a draft lease might be an intent to deceive. It was a triable issue as to whether the leases in issue had been obtained by a fraudulent misrepresentation as to their terms.

Citations:

Ind Summary 13-Dec-1993, Times 15-Nov-1993

Jurisdiction:

England and Wales

Torts – Other, Contract

Updated: 10 April 2022; Ref: scu.90480

Tuppen and Another v Microsoft Corporation Ltd and Another: QBD 15 Nov 2000

Acts within normal litigation could not normally amount to harassment under the Act. There is no definition of harassment under the Act, but the possibly wide range of meanings permitted reference to parliamentary discussions to assist with interpretation. it was clear from such a reference that the Act was intended to operate between stalkers and their victims, anti-social behaviour by neighbours, and racial harassment. The Acts of the defendants came nowhere near being such behaviour, save only the making of one telephone call late at night.

Citations:

Times 15-Nov-2000

Statutes:

Protection from Harassment Act 1997

Torts – Other

Updated: 10 April 2022; Ref: scu.90022

Regina v Secretary of State for the Home Department: QBD 7 Sep 2000

A finding that the applicant was an illegal immigrant had been subject to an application for judicial review on the basis that there had been insufficient evidence of an intent to deceive. The review had been refused because of the applicant’s delay. The applicant later sought to claim habeas corpus.
Held: This application was in effect merely a repetition of the earlier rejected application, and was an abuse of process. Although the review application had been refused for delay, the court had considered and rejected the merits of the application.

Citations:

Times 07-Sep-2000

Immigration, Torts – Other

Updated: 09 April 2022; Ref: scu.85508

Regina v Secretary of State for the Home Department and Others, Ex Parte Russell: QBD 31 Aug 2000

An order by a prison governor that a prisoner must submit to a random drug test depended for its lawfulness upon the selection being genuinely random. The order to submit and the order to attend for the test could not be separated. Although in fact the repeated selection of the prisoner, whilst genuinely random, had not been under circumstances where the method and implications of selection had been properly explained. Accordingly the order to attend was unlawful, and the court declined to exercise any discretion to allow the punishment to stand.

Citations:

Times 31-Aug-2000

Statutes:

Prisons Act 19525 16A, Prison Rules 1999 (1999 No 728) 46A, Prison (Amendment) Rules 2000 (2000 No 1794)

Torts – Other, Prisons

Updated: 09 April 2022; Ref: scu.85516

Quaquah v Group 4 Securities Ltd and Another: QBD 27 Jun 2001

The claimant had been detained in an immigration detention centre. He complained of a malicious prosecution by the company, and against the secretary of state, in exercising a non-delegable duty to provide for his safety whilst in custody.
Held: The Secretary of State had used all reasonable care in the selection of the sub-contractor, and was not liable for the wrongful acts of that company’s servants or agents. The duty was delegable.

Citations:

Times 27-Jun-2001

Citing:

See Also – Regina v Secretary of State for the Home Department Ex Parte Quaquah QBD 20-Jan-2000
An asylum seeker had been wrongly accused of riot and sought to sue for damages for malicious prosecution. The Home Secretary, a possible defendant in that action decided to expel the failed asylum seeker.
Held: Such an action was in breach of . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Administrative

Updated: 09 April 2022; Ref: scu.85092

Percy and Another v Hall and Others: QBD 31 May 1996

There was no wrongful arrest where the bylaw under which it was made was invalid. The question is the belief of the arresting officers. The effect of retrospective legislation is not always fully worked through. English law provides no cause of action for invalid administrative acts as such. A ‘second actor’ may be blameless if he detains a person in reliance on what appears to be a lawful authority, whether issued by a ‘first actor’ or otherwise.
Simon Brown LJ said of a byelaw under consideration: ‘Better . . to treat the instrument as valid unless so uncertain in its language as to have no ascertainable meaning, or so unclear in its effect as to be incapable of certain application in any case.’

Judges:

Simon Brown LJ, Schliemann LJ

Citations:

Times 31-May-1996, [1997] QB 924

Cited by:

Cited – Inter Lotto (Uk) Ltd v Camelot Group Plc CA 30-Jul-2003
The claimant and defendant had each operated using a the name ‘HotSpot’ for a name for its lottery. The respondent had registered the name as a trade mark. The claimant began to use the name first and claimed in passing off, and the respondent . .
Cited – Boddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
Cited – ID and others v The Home Office (BAIL for Immigration Detainees intervening) CA 27-Jan-2005
The claimants sought damages and other reliefs after being wrongfully detained by immigration officers for several days, during which they had been detained at a detention centre and left locked up when it burned down, being released only by other . .
Cited – Tabernacle v Secretary of State for Defence Admn 6-Mar-2008
The court considered the validity of bye-laws used to exclude protesters from land near a military base at Aldermarston.
Held: The byelaw which banned an ‘camp’ was sufficiently certain, but not that part which sought to ban any person who . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Police, Administrative

Updated: 09 April 2022; Ref: scu.84667

Olotu v Secretary of State for the Home Department and Another: QBD 8 May 1996

A prison governor was not liable for false imprisonment on a CPS’ failure to extend the custody time limit.

Citations:

Times 08-May-1996

Statutes:

Prosecution of Offences (Custody Time Limits) Regulations 1987 (1987 No 299)

Cited by:

Appeal from – Olotu v Home Office and Another CA 11-Dec-1996
The plaintiff was remanded in custody pending trial in the Crown Court and a warrant was issued for her detention which directed the prison governor to hold her until she was delivered to the Crown Court in due course of law. The custody time limit . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 09 April 2022; Ref: scu.84446