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These cases are from the lawindexpro database. They are now being transferred to the swarb.co.uk website in a better form. As a case is published there, an entry here will link to it. The swarb.co.uk site includes many later cases.  















Constitutional - From: 1970 To: 1979

This page lists 61 cases, and was prepared on 20 May 2019.


 
 West Midland Baptist (Trust) Association (Inc) v Birmingham Corporation; HL 1970 - [1970] AC 874; [1969] 3 All ER 172

 
 Rediffusion (Hong Kong) Ltd v Attorney-General of Hong Kong; PC 1970 - [1970] AC 1136; [1970] UKPC 12
 
News Media Ownership v Finlay [1970] NZLR 1089
1970

North P
Constitutional, Commonwealth, Media, Defamation
(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of personal profit in making statements in the House. North P said: "Mr McKay was right when he submitted that while violence of language is not in itself enough to take away privilege even though it may provide evidence of malice, yet privilege is lost if the reply becomes a counter attack raising allegations against the plaintiff which are unrelated or insufficiently related to the attack he made on the defendant. In other words he cannot claim the protection of privilege if he decides to bring fresh accusations against his adversary." and, as to a contention that the words complained of were not defamatory:
"In my opinion, there is no substance in this contention, for surely it is plain enough that it is harmful to the trading reputation of a newspaper company to allege that it conducts its business without regard for the public interest, its principal concern being merely with the making of profits."
1 Citers


 
Pillai v Comptroller of Income Tax [1970] AC 1124
1970
PC

Constitutional
The role of the Privy Council is purely appellate, and the court will not rule on points of law which had not been raised in the court from which the appeal lay.
1 Citers


 
Regina v Commissioners of Customs and Excise, Ex parte Cook [1970] 1 WLR 450
1970

Lord Parker CJ
Constitutional
Prerogative writs and orders, including mandamus, are available against officers of the Crown.

 
Internationale Handelsgesellschaft Mbh v Einfuhr Und Vorratsstelle Fuer Getreide Und Futtermittel. (Measures Adopted By Institutions ) C-11/70; R-11/70; [1970] EUECJ R-11/70; [1970] EUECJ C-11/70
17 Dec 1970
ECJ

European, Constitutional
1. The validity of measures adopted by the institutions of the community can only be judged in the light of community law. The law stemming from the treaty, an independent source of law, cannot because of its very nature be overridden by rules of national law, however framed, without being deprived of its character as community law and without the legal basis of the community itself being called in question. Therefore the validity of a community measure or its effct within a member state cannot be affected by allegations that it runs counter to either fundamental rights as formulated by the constitution of that state or the principles of its constitutional structure.
2. Respect for fundamental rights forms an integral part of the general principles of law protected by the court of justice. The protection of such rights, whilst inspired by the constitutional traditions common to the member states, must be ensured within the framework of the structure and objectives of the community. 3. The requirement by the agricultural regulations of the community of import and export licences involving for the licensees an undertaking to effect the proposed transactions under the guarantee of a deposit constitutes a method which is both necessary and appropriate, for the purposes of articles 40 (3) and 43 of the EEC Treaty, to enable the competent authorities to determine in the most effective manner their interventions on the market in cereals. The system of deposits violates no fundamental right.
4. The concept of force majeure adopted by the agricultural regulations is not limited to absolute impossibility but must be understood in the sense of unusual circumstances, outside the control of the importer or exporter, the consequences of which, in spite of the exercise of all due care, could not have been avoided except at the cost of excessive sacrifice.
5. By limiting the cancellation of the undertaking to export and the release of the deposit to cases of force majeure the community legislature adopted a provision which, without imposing an undue burden on importers or exporters, is appropriate for ensuring the normal functioning of the organization of the market in cereals, in the general interest as defined in article 39 of the Treaty.
[ Bailii ] - [ Bailii ]
 
Brunner v Greenslade [1971] Ch 993
1971
ChD
Megarry J
Land, Constitutional
Megarry J discussed the doctrine of ratio decidendi approving dicta in Lawrence.
1 Cites

1 Citers



 
 Church of Scientology of California v Johnson-Smith; QBD 1971 - [1972] 1 All ER 378; [1971] 3 WLR 434; [1972] 1 QB 522
 
Chevron Oil Co v Huson (1971) 404 US 97
1971


International, Constitutional
(US Supreme Court) The Supreme Court summarised three factors to be taken into account when considering whether a ruling should be applied non-retroactively: whether the decision established a new principle of law, whether retrospective operation would advance or retard the operation of the new rule, and whether the decision could produce substantial inequitable results if applied retrospectively.
1 Citers


 
Banton v Alcoa Minerals of Jamaica Inc (1971) 17 WIR 275
1971


Constitutional

1 Citers



 
 Blackburn v Attorney-General; CA 10-May-1971 - [1971] 2 All ER 1380; [1971] 1 WLR 1037; [1971] EWCA Civ 7; [1971] CMLR 784
 
Felton v Mulligan (1971) 124 CLR 367; [1971] HCA 39
2 Sep 1971

Justice Windeyer
Wills and Probate, Constitutional
(Australia) The court was concerned to interpret the phrase "arising under any laws made by the Parliament"
Austlii Constitutional Law (Cth) - Privy Council - Appeal from State Supreme Court invested with federal jurisdiction - Matter arising under law made by Common- Commonwealth Parliament - Raised by defence - Whether court exercising concurrent State and federal jurisdiction - The Constitution (63 & 64 Vict. c. 12), s. 76 (ii.) - Judiciary Act 1901-1968 (Cth), ss. 39, 40.
Courts - Ouster of jurisdiction - Public policy - Proceedings for divorce - Agreement between husband and wife concerning maintenance - Whether invalid - Whether invalidity derived from common law or statute - Matrimonial Causes Act 1959-1966 (Cth).
Matrimonial Causes - Agreement between husband and wife concerning maintenance - Whether enforceable - Whether attempt to oust jurisdiction of court - Matrimonial Causes Act 1959-1966 (Cth), ss. 5, 8, 23 (2) (3), 87 (1) (k).
1 Citers

[ Austlii ]
 
Regina v National Insurance Commissioner, Ex parte Hudson [1972] AC 944
1972
HL
Lord Diplock, Lord Simon of Glaisdale, Lord Reid
Constitutional, Benefits
The House considered whether it would have power to make a ruling with prospective effect only. Lord Diplock said the matter deserved further consideration; Lord Simon said that the possibility of prospective overruling should be seriously considered, but that he would prefer legislation, saying that 'informed professional opinion' was probably to the effect that the House had no power to overrule decisions with prospective effect only.
Viscount Dilhorne discussed the freedom if any to overturn a recent case: "[I]f the view be that the decision is clearly wrong, it is, I think, easier to decide that a recent case should not be followed than if it is one that has stood for a long time, for if it is in the latter category many may have acted in reliance on it."
Lord Reid said that the power given to the House by the Practice Statement was to be applied only in a small number of cases in which previous decisions of the House were "thought to be impeding the proper development of the law or to have led to results which were unjust or contrary to public policy."
Lord Diplock said: "Section 5 (1946 Act), which contains the general description of and conditions of entitlement to each of the three benefits, avoids the use of the compound phrase 'personal injury by accident' which had appeared in successive Workmen's Compensation Acts since 1897. It is reasonable to suppose that the change in phraseology was deliberate - though there is an isolated lapse into the expression 'personal injury by accident' in section 48(2) of the statute."
Workmen's Compensation Act 1946 5
1 Cites

1 Citers


 
Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions [1973] AC 435; [1972] 2 All ER 898; 56 Cr App R 633
1972
HL
Lord Reid, Lord Simon of Glaisdale
Crime, Constitutional
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. Held: There now exists no power in the courts to create new criminal offences. A new criminal offence could only be created by Act of Parliament. The House considered its ability to depart from its own previous decisions.
Lord Simon of Glaisdale set out the matters which should be included in the directions to the jury where a defendant faced charges of outraging public decency: "It should be emphasised that 'outrage', like 'corrupt,' is a very strong word. 'Outraging public decency' goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people. Moreover the offence is, in my view, concerned with recognised minimum standards of decency, which are likely to vary from time to time." It is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence. Aa jury should be directed that, "outraging public decency goes considerably beyond offending the susceptibilities of or even shocking reasonable people."
Lord Reid said: "It was decided by this House in Shaw v Director of Public Prosecutions [1962] AC 220 that conspiracy to corrupt public morals is a crime known to the law of England. So if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants' main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished.
I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament." and "if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants' main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished. I dissented in Shaw's case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament." and
'there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense.'
1 Cites

1 Citers


 
Director of Public Prosecutions v Bhagwan [1970] 3 All ER 97; [1972] AC 60; [1970] 3 WLR 501; 54 Cr App Rep 460; 134 JP 622
1972
HL
Lord Diplock
Constitutional, Immigration
Under s 3 of the Act and paras 1 and 10 of Sch 1, a Commonwealth citizen to whom the Act applied landing in the United Kingdom from a 'ship' (as widely defined) or an aircraft could within 24 hours of his landing be required by an immigration officer to submit to examination. Under ss 2 and 3 (1) (b) of the Act and para 2 of Sch 1, the immigration officer then had power, within 12 hours after the examination, to give notice refusing the Commonwealth citizen admission into the United Kingdom or admitting him subject to conditions. If the immigration officer refused admission, he could under s 3 (1) (c) of the Act and para 3 of Sch 1 give directions for the removal of the Commonwealth citizen from the United Kingdom. Also if the Commonwealth citizen, having been refused admission, entered the United Kingdom, he was under s 4 of the Act guilty of an offence which continued while he was in the United Kingdom and under s 14 he was liable on summary conviction to be fined, or imprisoned. The six months limitation under s 104 of the Magistrates' Courts Act 1952 would not operate to bar a prosecution because the offence was continuing. He could, therefore, be prosecuted at any time while he remained in the United Kingdom, and, if he was convicted and recommended by the court for deportation under s 7 of the 1962 Act, a deportation order could be made by the Secretary of State under s 9. Thus, in the case of a person who had been refused admission, even if the time for giving directions for removal had passed by, there might still be a prosecution and conviction leading to deportation. In the case of a person admitted subject to conditions, if he remained in the United Kingdom in breach of a condition, there was (apart from the special provisions of Part II of Sch 1 relative to seamen and stowaways) no power for the immigration officer to give directions for removal of such a person, but he could be prosecuted at any time under ss 4 and 14 for the continuing offence, and if he was convicted and recommended by the court for deportation under s 7 a deportation order could be made by the Secretary of State under s 9.
Lord Diplock said: "Under our system of Parliamentary government what Parliament enacts are not policies but means for giving effect to policies. Those means often involve imposing on private citizens fresh obligations or restrictions on their liberties to which they were not previously subject at common law. The constitutional function of the courts in relation to enacted law is limited to interpreting and applying it. It is the duty of the judge to ascertain what are the means which Parliament has enacted by the Act. In construing the enacting words he may take account of what the Act discloses as the purpose that those means were intended to achieve and, in the case of ambiguity alone, he may interpret them in the sense in which they are more likely to promote than hinder its achievement. But it is no function of a judge to add to the means which Parliament has enacted in derogation of rights which citizens previously enjoyed at common law, because he thinks that the particular case in which he has to apply the Act demonstrates that those means are not adequate to achieve what he conceives to be the policy of the Act.
To do so is not to carry out the intention of Parliament but to usurp its functions. The choice of means is itself part of the Parliamentary choice of policy. It represents the price, by way of deprivation of freedom to do or not to do as they wish, which Parliament is prepared to exact from individual citizens, to promote those objects to which the Act is directed. To raise the price is to change the policy - not to give effect to it. If the policy is to be changed it is for Parliament not the courts to change it - as Parliament has in fact changed the policy of the Commonwealth Immigrants Act 1962, by the amending Act of 1968 which makes it an offence for Commonwealth citizens to do what the respondent did in 1967. This is what Parliament has also done in numerous Finance Acts which have followed on decisions of your Lordships' House in cases which have brought to light inadequacies in the enacted means of raising public revenue. In each of those cases the method adopted by the taxpayer of avoiding the incidence of taxation involved concerted action with at least one other person, and the decisions of your Lordships' House in them are irreconcilable with the proposition for which the prosecution contends in the instant appeal." Lord Diplock spoke of "the common law rights of British subjects . . to enter the United Kingdom when and where they please and on arrival to go wherever they like within the realm."
Commonwealth Immigrants Act 1962 3
1 Citers


 
Attorney-General, ex rel McWhirter v Independent Broadcasting Authority [1973] 1 QB 629; [1972] CMLR 882
1972
CA
Lord Denning MR
Media, Elections, Constitutional
The court should not interfere in decisions made by broadcasting companies allocating television time to parties before elections unless it is of the view that they were irrational in not giving enough weight to those matters in allocating it only one broadcast.
The Bill of Rights does not restrict the Crown's prerogative powers in relation to foreign affairs: "the Crown retained, as fully as ever, the prerogative of the treaty-making power" and "Even though the Treaty of Rome has been signed, it has no effect, so far as these courts are concerned, until it is made an Act of Parliament. Once it is implemented by an Act of Parliament, these courts must go by the Act of Parliament. Until that day comes, we take no notice of it."
1 Citers



 
 Beech v Freeson; QBD 1972 - [1972] 1 QB 14

 
 Bates v Lord Hailsham of St Marylebone; ChD 1972 - [1972] 1 WLR 1373; [1972] 3 All ER 1019

 
 Cassell and Co Ltd v Broome and Another; HL 23-Feb-1972 - [1972] 2 WLR 645; [1972] AC 1027; [1972] UKHL 3
 
Cassell and Co Ltd v Broome (No 2) [1972] AC 1136
24 Feb 1972
HL
Lord Kilbrandon
Natural Justice, Constitutional, Costs
Their Lordships varied an order for costs already made by the House in circumstances where the parties had not had a fair opportunity to address argument on the point. As the ultimate court of appeal, the House has power to correct any injustice caused by an earlier order. There is no relevant statutory limitation on the jurisdiction of the House in this regard and therefore its inherent jurisdiction remains unfettered. There is a constitutional right to freedom of expression in England.
1 Cites

1 Citers


 
McKendrick v Sinclair [1972] UKHL 9; 1972 SLT 110; 1972 SC (HL) 25
15 Mar 1972
HL

Scotland, Damages, Constitutional
The House considered the nature of an action for assythment - a claim for damages by the family of a victim of a homicide where the perpetrator had not suffered capital punishment. The defendant here argued that it was no longer good law. Held: The common law was not lost through lack of use. The remedy still existed.
[ Bailii ]

 
 Leonesio v Ministero Della Agricoltura E Foreste; ECJ 17-May-1972 - [1972] ECR 287; R-93/71; [1972] EUECJ R-93/71

 
 Cassella Farbwerke v Commission; ECJ 14-Jul-1972 - C-55/69; [1972] EUECJ C-55/69

 
 Rothermere v Times Newspapers Ltd; CA 1973 - [1973] 1 WLR 448
 
Arthur Francis v The Chief of Police [1973] UKPC 4; [1974] Crim LR 50; [1973] 2 WLR 505; [1973] AC 761; [1973] 2 All ER 251
5 Feb 1973
PC

Commonwealth, Crime, Constitutional
(St. Christopher and Nevis and Anguilla) The appellant had spoken at a public meeting using a microphone without first obtaining the required license. The meeting itself ha already been approved. He complained that his arrest under the law had been unconstitutional. The magistrate referred for the determination of the High Court the question whether section 5 of the Public Meetings and Processions Act 1969 offended against section 10 of the Constitution. The High Court held that section 5 of the Act did not infringe the fundamental rights and freedoms guaranteed by section 10 of the Constitution and their decision was affirmed by the Court of Appeal. Held: , Dismissing the appeal, the control of loudspeakers at public meetings by section 5 of the Act of 1969 was not contrary to section 10 of the Constitution, for public order required that the public, who did not wish to hear the speaker, be protected from any excessive noise. Per curiam. A wrongful refusal of permission to use a loudspeaker at a public meeting (for instance if the refusal is inspired by political partiality) would be an unjustified and therefore unconstitutional interference with freedom of communication.
[ Bailii ]
 
Morgan v Simpson [1975] 1 QB 151; [1974] 3 All ER 722; [1974] 3 WLR 517
1974
CA
Lord Denning MR, Stephenson LJ
Elections, Constitutional
Voting papers that were invalid as a result of minor administrative errors by officials (and not the voters). Counting the invalid votes would have affected the election outcome. Held: The election was declared void. Section 37(1) was not available to cure the defects, but rather it was to be used to ask whether the defects had affected the outcome.
Lord Denning MR commented on parliamentary elections conducted more than a century earlier by poll whereby a voter's name, qualification and vote were recorded in a book open for public inspection, saying: "Such was the method of election at common law. It was open. Not by secret ballot. Being open, it was disgraced by abuses of every kind, especially at parliamentary elections. Bribery, corruption, treating, personation, were rampant." and "An election petition is a serious - and expensive - matter and is not lightly to be set aside."
Stephenson LJ said: "For an election to be conducted substantially in accordance with that law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot."
Representation of the People Act 1949 37(1)
1 Citers


 
Sirros v Moore [1975] QB 118; [1974] 3 All ER 776
1974
CA
Lord Denning MR
Constitutional, Legal Professions
Lord Denning MR discussed the immunity of judges from suit: "Ever since the year 1613, if not before, it has been accepted in our law that no action is maintainable against a judge for anything said or done by him in the exercise of a jurisdiction which belongs to him. The words which he speaks are protected by an absolute privilege. The orders which he gives, and the sentences which he imposes, cannot be made the subject of civil proceedings against him. No matter that the judge was under some gross error or ignorance, or was actuated by envy, hatred and malice, and all uncharitableness, he is not liable to an action. The remedy of the party aggrieved is to appeal to a Court of Appeal or to apply for habeas corpus, or a writ of error or certiorari, or to take some such step to reverse his ruling. Of course, if the judge has accepted bribes or been in the least degree corrupt, or has perverted the course of justice, he can be punished in the criminal courts. That apart, however, a judge is not liable to an action for damages. The reason is not because the judge has any privilege to make mistakes or to do wrong. It is so that he should be able to do his duty with complete independence and free from fear . . These words apply not only to the judges of the superior courts, but to judges of all ranks, high or low." However the doctrine of judicial immunity does not apply: "if it be shown that [a judge] was not acting judicially, knowing that he had no jurisdiction to do it."

 
Bulmer (HP) Ltd v Bollinger SA [1974] 1 Ch 401; [1974] 3 WLR 202; [1974] 2 All ER 1226
1974
CA
Lord Denning MR
European, Constitutional, Intellectual Property
The plaintiff complained that the respondent had described its drink 'Babycham' as a champagne perry, which it said was a misuse of the appellation 'champagne'. Held: The court considered the effect of European legislation on the law of England and Wales. Lord Denning MR said: "But when we come to matters with a European element, the treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the treaty is henceforward to be part of our law. It is equal in force to any statute." Community instruments are not expressed against the background of English canons of construction and should not be so construed.
1 Citers



 
 Pickin v British Railways Board; HL 30-Jan-1974 - [1974] AC 765; [1974] 1 All ER 609; [1974] UKHL 1
 
Mitchell v WT Grant Company 416 US 600; 94 SCt. 1895; 40 Led 2d 406
13 May 1974

White J
Constitutional
(Supreme Court of the USA) Stewart J said: "A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government. No misconception could do more lasting injury to this court and to the system of law which it is our abiding mission to serve."
1 Citers

[ LII ]

 
 HP Bulmer Ltd and Another v J Bollinger Sa and others; CA 22-May-1974 - [1974] EWCA Civ 14; [1974] 2 All ER 1226; [1974] 3 WLR 202; [1974] Ch 401
 
Cormack v Cope (1974) 131 CL R 432
5 Aug 1974

Barwick CJ, McTiernan, Menzies, Gibbs, Stephen and Mason JJ
Commonwealth, Constitutional
(High Court of Australia) There was an alleged constitutional irregularity in the law-making process. Held: Ordinarily the court's interference to ensure due observance of the constitution in connection with the making of laws is effected by a post-enactment declaration that what purports to be an Act is void. This is a sufficient means of ensuring that the processes of law-making which the constitution requires are properly followed. But in point of jurisdiction the court is not limited to that method of ensuring the observance of the constitutional processes of law-making. In an appropriate case the court is able, and indeed in a proper case bound, to interfere. Exceptionally, there might be intervention in the parliamentary process. Menzies J. and Stephen J. Menzies J. stated that it was no part of the authority of the court to restrain Parliament from making unconstitutional laws, but left open the case where the adoption of a particular law-making procedure would defeat the constitutional power of the court to deal effectively with legislation when enacted. Stephen J based the limitation of court intervention on jurisdictional and not discretionary grounds, but he envisaged there may be exceptions.
1 Citers

[ Austlii ]
 
Norddeutsches Vieh Und Fleischkontor Gmbh v Hauptzollamt Hamburg-Jonas Ausfuhrerstattung R-14/74; [1974] EUECJ R-14/74
1 Oct 1974
ECJ

Constitutional
(Eec Treaty )
[ Bailii ]
 
F Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry [1975] AC 295; [1974] 2 All ER 1128; [1974] 3 WLR 104
1975
HL
Lord Diplock, Lord Reid, Lord Wilberforce
Administrative, Litigation Practice, Constitutional
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra vires, because it had been based upon a report by the Monopolies Commission, which the appellant maintained, had been produced without due regard to principles of natural justice. The Secretary of State objected to giving a cross undertaking in damages. Held: The Secretary of State was not required to give such an undertaking. Lord Reid said that normally a claimant "cannot be compelled to give an undertaking but if he will not give it he will not get the injunction."
The fact that an individual has suffered loss because of an invalid administrative act does not in itself entitle him to be indemnified.
Lord Diplock said: "The court has no power to compel an applicant for an interim injunction to furnish an undertaking as to damages." and "The undertaking is not given to the defendant but to the court itself. Non-performance of it is contempt of court, not breach of contract, and attracts the remedies available for contempts, but the court exacts the undertaking for the defendant's benefit. It retains a discretion not to enforce the undertaking if it considers that the conduct of the defendant in relation to the obtaining or continuing of the injunction or the enforcement of the undertaking makes it inequitable to do so, but if the undertaking is enforced the measure of the damages payable under it is not discretionary. It is assessed on an inquiry into damages at which principles to be applied are fixed and clear. The assessment is made upon the same basis as that upon which damages for breach of contract would be assessed if the undertaking had been a contract between the plaintiff and the defendant that the plaintiff would not prevent the defendant from doing that which he was restrained from doing by the terms of the injunction."
. . "In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects)."
Monopolies and Restrictive Practices (Inquiry Control) Act 1948 11(2) - Monopolies and Mergers Act 1965
1 Citers


 
Gibson v Lord Advocate 1975 SC 136
1975

Lord Keith
Scotland, Ecclesiastical, Constitutional
Lord Keith reserved his opinion on whether provisions in the Acts of Union of 1707 and legislation purporting to abolish the Church of Scotland were justiciable.
1 Citers



 
 Black-Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG; HL 5-Mar-1975 - [1975] AC 591; [1975] 2 WLR 513; [1975] 1 All ER 810; [1975] UKHL 2
 
Inland Revenue Commissioners v Joiner [1975] 1 WLR 1701; [1975] UKHL TC - 50 - 449; 50 TC 449; [1975] STC 657; [1975] TR 257; [1975] 3 All ER 1050; [1975] TR 77
26 Nov 1975
HL
Lord Wilberforce, Viscount Dilhorne, Lord Diplock
Income Tax, Constitutional
HL Surtax - Tax advantage - Transaction in securities - Company recon- struction - Surplus assets o f old company distributed in voluntary liquidation - Agreement for liquidation providing for agreed methods o f valuation and distribution - Whether (a) whole scheme o f reconstruction, (b) liquidation agreement, (c) distribution in liquidation a transaction in securities - Whether tax advantage a consequence o f any transaction but the liquidation - Income and Corporation Taxes Act 1970 (c. 10), ss. 460 and 46
The phrase "a transaction in securities" does not include the liquidation of a company. Taxpayers entered into a shareholders' agreement which varied the rights attached to their shares in important respects before putting the company into liquidation. The variations were all necessary steps in order to achieve the taxpayers' objective, which was to receive the undistributed profits of the company as surplus assets in the liquidation (and therefore free of surtax) while keeping the business itself in existence. The Court of Appeal had held that the liquidation by itself was a transaction in securities. The Revenue did not contend that a straightforward liquidation without any variation of the rights attached to the shares was a transaction in securities, and the House did not hold that it did. All members of the Committee rested their decision on the ground given by Goulding J at first instance, that the variation of rights constituted a transaction in securities and that accordingly the tax advantage was obtained in consequence of the combined effect of a transaction in securities and the liquidation of a company.
It is a legitimate purpose of legislation by Parliament to clarify the law by making it clear in which of two alternative meanings the ambiguous language of an earlier statute was to be understood, but that it would only be if the language of a provision in an existing statute was ambiguous that it would be legitimate to infer that a purpose of the subsequent statute was to remove doubts as to what the law had always been.
Lord Diplock discussed the nature of a consolidating Act: "The purpose of a consolidation Act is to remove this difficulty by bringing together in a single statute all the existing statute law dealing with the same subject-matter which forms the general context in which the particular provisions of the Act fall to be construed, so that it will no longer be necessary to seek that context in a whole series of amended and re-amended provisions appearing piecemeal in earlier statutes.
This is the only purpose of a consolidation Act; this is the only 'mischief' it is designed to cure. It is true that a consolidation Act is not intended to alter the law as it existed immediately before the Act was passed, but to treat this absence of intention as justifying recourse to the previous legislation repealed by the consolidation Act in order to ascribe to any of the provisions of that Act a meaning different from that which it would naturally bear when read only in the context of the other provisions of the consolidation Act itself, would be to defeat the whole purpose of this type of legislation-to allow the absence of a tail to wag the dog."
Finance Act 1960 28
1 Citers

[ Bailii ]

 
 Hinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor); PC 1-Dec-1975 - [1976] 1 All ER 1976; [1976] 2 WLR 366; (1975) 119 SJ 864; [1976] Crim LR 124; [1977] AC 195
 
Fitzgerald v Muldoon [1976] 2 NZLR 5615
1976


Constitutional
A Labour government introduced a contributory superannuation scheme. Statute made contribution by employer and employee compulsory. The leader of the National opposition, Muldoon, promised to abolish the scheme immediately on becoming government. National won a landslide victory in November 1975. But the Prime Minister, Muldoon, had no desire to reconvene Parliament until June. Two weeks later he issued a press statement. It said that the compulsory requirement to contribute "will cease as from today".2 The junior public servant, Fitzgerald, issued proceedings challenging the Prime Ministerial statement.
1 Citers



 
 Attorney-General v Jonathan Cape Ltd; 1976 - [1976] 1 QB 752; [1976] 3 All E R 484

 
 Daymond v South West Water Authority; HL 1976 - [1976] AC 609
 
Laker Airways v Department of Trade [1977] 1 QB 643; [1976] EWCA Civ 10; [1977] 2 All ER 182; [1977] 2 WLR 234
15 Dec 1976
CA
Roskill LJ, Lord Denning MR, Lawton LJ
Administrative, Constitutional
Policy guidance issued by the respondent was unlawful because it was contrary to the statutory objectives laid down for the Civil Aviation Authority by section 3 of the 1971 Act. The court discussed the status of guidance issued by the respondent: "guidance is assistance in reaching a decision proffered to him who has to make the decision, but guidance does not compel any particular decision."
Lord Denning said that the exercise of a discretionary prerogative power "can be examined by the courts just as any other discretionary power which is vested in the executive."
. . And "The prerogative is a discretionary power exercisable by the executive government for the public good, in certain spheres of governmental activity for which the law has made no provision, such as the war prerogative (of requisitioning property for the defence of the realm), or the treaty prerogative (of making treaties with foreign powers). The law does not interfere with the proper exercise of the discretion by the executive in those situations: but it can set limits by defining the bounds of the activity: and it can intervene if the discretion is exercised improperly or mistakenly. That is a fundamental principle of our constitution.
Civil Aviation Act 1971 3
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[ Bailii ]
 
The Queen in Right of Alberta v Canadian Transport Commission (1977) 75 DLR (3d) 257
1977


Commonwealth, Constitutional
The Crown in right of Alberta may be equated with the Government of Alberta.
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Tito v Waddell (No 2); Tito v Attorney General [1977] Ch 106; [1977] 3 All ER 129; [1977] 3 WLR 972
1977
ChD
Megarry VC
Land, Equity, Constitutional, Damages
Equity applies its doctrines to the substance, not the form, of transactions. In respect of the rule against self dealing for trustees "But of course equity looks beneath the surface, and applies its doctrines to cases where, although in form a trustee has not sold to himself, in substance he has. Again one must regard the realities. If the question is asked: "Will a sale of trust property by the trustee to his wife be set aside?", nobody can answer it without being told more; for the question is asked in a conceptual form, and manifestly there are wives and wives. In one case the trustee may have sold privately to his wife with whom he was living in perfect amity; in another the property may have been knocked down at auction to the trustee's wife from whom he has been living separate and in enmity for a dozen years."
The issue arose, in relation to "the 1931 transaction", as to whether the acts of which the claimants complained were done on behalf of the Government of the Gilbert and Ellice Islands Colony (in which case no claim lay against the Crown, because excluded by the 1947 Act) or the Government of the United Kingdom (in which case, if a claim lay, it was not excluded). The court accepted that the colonial government was a subordinate government, all important decisions being referred to London, and the Crown, on the advice of the United Kingdom Government, having important powers that could be used to override acts of the colonial government. But the Vice-Chancellor concluded: "In my judgment the government of the United Kingdom was not the government of the Gilbert and Ellice Islands Colony at any material time. It had important advisory and supervisory functions, as well as paramount powers. It also contributed much to the governing of the colony, in general and to the 1931 transaction in particular, eg in settling the form of the 1931 lease; but it was not the government."
As to damages: "Per contra, if the plaintiff has suffered little or no monetary loss in the reduction of value of his land, and he has no intention of applying any damages towards carrying out the work contracted for, or its equivalent, I cannot see why he should recover the cost of doing work which will never be done. It would be a mere pretence to say that this cost was a loss and so should be recoverable as damages."
Crown Proceedings Act 1947 40(2)(b)
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 Western Bank Ltd v Schindler; CA 1977 - [1977] Ch 1

 
 Regina v Home Secretary, ex parte Hosenball; CA 1977 - [1977] 1 WLR 766; [1977] 3 All ER 452

 
 Gouriet v Union of Post Office Workers; HL 26-Jul-1977 - [1978] AC 435; [1977] UKHL 5; [1977] 3 All ER 70
 
Fitzleet Estates Ltd v Cherry [1977] 1 WLR 1345; [1977] UKHL TC - 51 - 708; [1977] 3 All ER 996; [1977] STC 397; [1977] TR 217; 51 TC 708
9 Nov 1977
HL
Lord Wilberforce, Lord Salmon and Lord Keith
Litigation Practice, Constitutional, Income Tax
Income tax - Schedule D, Cases III and VI - Payments of interest and ground rent incurred when property was being developed - Whether capitalised or paid out of profits or gains brought into charge to tax - Income Tax Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c. 10), j. 170.
The House was invited to depart from its own precedent set eleven years before. Lord Wilberforce said: "There is therefore nothing left to the appellant but to contend - as he frankly does - that the 1965 decision is wrong. This contention means, when interpreted, that three or more of your Lordships ought to take the view which appealed then to the minority.
My Lords, in my firm opinion, the Practice Statement of 1966 was never intended to allow and should not be considered to allow such a course. Nothing could be more undesirable, in fact, than to permit litigants, after a decision has been given by this House with all appearance of finality, to return to this House in the hope that a differently constituted committee might be persuaded to take the view, which its predecessors rejected. True that the earlier decision was by majority: I say nothing as to its correctness or as to the validity of the reasoning by which it was supported. That there were two eminently possible views is shown by the support for each by at any rate, two members of the House. But doubtful issues have to be resolved and the law knows no better way of resolving them than by the considered majority opinion of the ultimate tribunal. It requires much more than doubts as to the correctness of such opinion to justify departing from it."
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[ Bailii ]
 
Stopforth v Goyer (1978) 87 DLR (3d) 373; (1978) 4 CCLT 265
1978

Lief J
Commonwealth, Constitutional, Defamation, Media
(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The plaintiff had been a senior member of a team having conduct of the delivery of weapons systems to the government. The defendant had been the relevant minister. It was accepted that the defendant was taken to assume that his acceptedly defamatory words would be repulished by the media. The defendant claimed qualified privilege. Held: The defence was not made out. There was no duty falling on him at the time to utter the words he did, and nor was there a reciprocal duty in the press to receive the statement.
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Wells v Derwent Plastics Limited [1978] ICR 424
1978
EAT
Bristow J
Employment, Constitutional
Bristow J said: "Where the legal right or obligation with which you are concerned is not a common law right or obligation but is created by statute, what the statute says, and nothing else, is the law. The judges cannot add to or subtract from the law as you find it expressed in the statute, the instrument by which the will of the people through the ordinary constitutional method of Parliamentary process becomes the law. If what the statute says is intelligible and unambiguous it is for the judges to apply it, not to refine it or add to it frills of their own."
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Davis v Johnson [1978] 1 All ER 841
1978
CA
Lord Denning MR, Cumming-Bruce LJ
Family, Constitutional
The court had to consider whether the Act protected cohabitees as well as wives. In doing so the court looked at whether it could look to parliamentary debates. Held: Lord Denning MR said: "Some may say, and indeed have said, that judges should not pay any attention to what is said in Parliament. They should grope about in the dark for the meaning of an Act without switching on the light. I do not accede to this view . . It is obvious that there is nothing to prevent a judge looking at these debates himself privately and getting some guidance from them. Although it may shock the purists, I may as well confess that I have sometimes done it. I have done it in this very case. It has thrown a flood of light on the position. The statements made in committee disposed completely of counsel for the respondent's argument before us." but (Cumming-Bruce LJ) "I am not alarmed by the criticism that I am a purist who prefers to shut his eyes to the guiding light shining in the reports of parliamentary debates in Hansard."
Domestic Violence and Matrimonial Proceedings Act 1976
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The Queen v Burah 3 App Cas 889; (1877-78) LR 3 App Cas 889; [1878] UKPC 1; [1873] 3 AC 889; [1878] UKPC 26
5 Jun 1978
PC
Lord Selborne, Sir James W. Colvile, Sir Barnes Peacock, Sir Montague E. Smith, Sir Robert P. Collier
Constitutional
The Board was asked whether Act No. XXII of 1869 of the Indian Legislature was inconsistent with the Indian High Courts Act (24 & 25 Vict. c. 104) or with the Charter of the High Court, or whether it was within the legislative power of the Governor-General in Council. Held: The 1869 Indian statute did not contravene the Indian High Courts Act nor the letters patent issued under it.
Lord Selborne said: "The Indian Legislature has powers expressly limited by the Act of the Imperial Parliament which created it, and it can, of course, do nothing beyond the limits which circumscribe these powers. But, when acting within those limits, it is not in any sense an agent or delegate of the Imperial Parliament which has, and was intended to have, plenary powers of legislation, as large and of the same nature, as those of Parliament itself. The established Courts of Justice, when a question arises whether the prescribed limits have been exceeded, must of necessity determine that question; and the only way in which they can properly do so, is by looking to the terms of the instrument by which, affirmatively, the legislative powers were created, and by which, negatively, they were restricted. If what has been done is legislation, within the general scope of the affirmative words which give the power, and if it violates no express condition or restriction by which that power is limited (in which category would, of course, be included any Act of the Imperial Parliament at variance with it), it is not for any Court of Justice to enquire further, or to enlarge constructively those conditions and restrictions."
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[ Bailii ] - [ Bailii ]
 
Vestey v Inland Revenue Commissioners (No 2) [1979] Ch 198
1979
ChD
Walton J
Taxes Management, Constitutional
The Commissioners of Inland Revenue do not have, any more than does any other emanation of the Crown, any power to suspend or dispense with laws. "It is at this point that there arises what Mr Potter, for the taxpayers, has denominated as a serious constitutional question; namely what rights the Inland Revenue Commissioners have to pick and choose when recovering tax. The Solicitor-General said, and doubtless rightly said, that the commissioners are under no duty to recover every halfpenny of tax which may be due. One may say "Amen" to that very readily, because the costs of recovery of extremely small amounts of tax would far outweigh the tax recovered. One expects the tax authorities to behave sensibly. In this connection I was referred to section 1 of the Inland Revenue Regulation Act 1890 and to section 1 of the Taxes Management Act 1970, but I do not think that either of these provisions has any real bearing on the matter. What the revenue authorities, through the Solicitor-General, are here claiming is a general dispensing power, no more and no less. He submitted that the system of extra-statutory concessions was well known and well recognised, and that what was happening in the present case was no more than the grant of an additional extra-statutory concession. In the first place, I, in company with many judges before me, am totally unable to understand upon what basis the Inland Revenue Commissioners are entitled to make extra-statutory concessions. To take a very simple example (since example is clearly called for), upon what basis have the commissioners taken it upon themselves to provide that income tax is not to be charged upon a miner’s free coal and allowances in lieu thereof? That this should be the law is doubtless quite correct; I am not arguing the merits, or even suggesting that some other result, as a matter of equity, should be reached. But this, surely, ought to be a matter for Parliament, and not the commissioners. If this kind of concession can be made, where does it stop; and why are some groups favoured as against others?"
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Vestey v Inland Revenue Commissioners [1980] AC 1148; (1979) 54 Tax Cas 503; [1979] 3 WLR 915; [1979] UKHL TC - 54 - 503
1979
HL
Lord Wilberforce, Lord Dilhorne, Lord Salmon, Lord Edmund-Davies, Lord Edmund-Davies
Taxes Management, Constitutional, Income Tax
Taxes are imposed upon subjects by Parliament. A citizen cannot be taxed unless he is designated in clear terms by a taxing Act as a taxpayer and the amount of his liability is clearly defined. A proposition that whether a subject is to be taxed or not, or, if he is, the amount of his liability, is to be decided (even though within a limit) by an administrative body represents a radical departure from constitutional principle. It may be that the revenue could persuade Parliament to enact such a proposition in such terms that the courts would have to give effect to it: but, unless it has done so, the courts, acting on constitutional principles, not only should not, but cannot, validate it. When Parliament imposes a tax, it is the duty of the commissioners to assess and levy it upon and from those who are liable by law. Of course they may, indeed should, act with administrative commonsense. To expend a large amount of taxpayer’s money in collecting, or attempting to collect, small sums would be an exercise in futility: and no one is going to complain if they bring humanity to bear in hard cases. I accept also that they cannot, in the absence of clear power, tax any given income more than once. But all of this falls far short of saying that so long as they do not exceed a maximum they can decide that beneficiary A is to bear so much tax and no more, or that beneficiary B is to bear no tax. This would be taxation by self-asserted administrative discretion and not by law. The fact in the present case is that Parliament has laid down no basis on which tax can be apportioned where there are numerous discretionary beneficiaries. The Commissioners had no power to mitigate the gross injustice that would result from the strict application of the section, as interpreted by them. The devices resorted to by the Commissioners were unconstitutional.
HL Income tax - Avoidance of tax - Transfer of assets - Income payable to trustees of settlement resident abroad - Income accumulated and invested - Income from such investments also accumulated and invested in two funds - Investments including shares in wholly-owned overseas companies - Capital sums paid out of each fund to discretionary beneficiaries (other than the transferors) ordinarily resident in the U.K. - Capital sum paid to mother of infant beneficiary - Whether infant "received" or "entitled to receive" such capital sum - Whether each of such beneficiaries had "power to enjoy" income of (a) the trustees, (b) the overseas companies - Whether such income deemed to be income of each of such beneficiaries in years prior to, including, and subsequent to, year of receipt - Power of Board of Inland Revenue to apportion such income between selected beneficiaries - Income Tax Act 1952, s 412 (1), (2), (4), (5) & (6) - Finance Act 1969, s 33 - Inland Revenue Regulation Act 1890, s 1 - Taxes Management Act 1970, s 1.
Taxes Management Act 1970 1 - Inland Revenue Regulation Act 1890 1 - Finance Act 1969 33 - Income Tax Act 1952 412(1)
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[ Bailii ]
 
Mootoo v Attorney-General of Trinidad and Tobago [1979] 1 WLR 1334; [1979] 3 WIR 411
1979
PC

Commonwealth, Constitutional
(Trinidad and Tobago) Proponents of claims that properly passed parliamentary legislation was invalid face a heavy burden.
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Minister of Home Affairs v Fisher [1980] AC 319; [1979] 3 All ER 21; [1979] 2 WLR 889
1979
PC
Lord Wilberforce
Constitutional, Commonwealth
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms with a statement of which the Constitution commences.
In the context of fundamental rights in respect of issues of life and death there is required "a generous interpretation" avoiding 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the fundamental rights and freedoms referred to. Human rights drafting uses a "broad and ample style which lays down principles of width and generality."
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Hope v New Guyana Ltd (1979) 26 WIR 233
1979


Constitutional

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Vestey v Inland Revenue Commissioners [1979] Ch 177
1979
ChD
Walton J
Taxes Management, Constitutional
The case concerned section 478, which had monstrous and unintended results, if applied in accordance with its natural meaning. The Commissioners did not seek to apply the section in a manner which produced such results. The court held: "One should be taxed by law, and not be untaxed by concession"
Income and Corporation Taxes Act 1970 478
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 de Lasala v de Lasala; PC 4-Apr-1979 - [1980] AC 546; [1979] UKPC 10; [1979] 2 All ER 1146; [1980] FSR 443; [1979] 3 WLR 390
 
Hutchinson v Proxmire [1979] USSC 139; [1979] 443 US 111
26 Jun 1979


International, Constitutional, Defamation
(United States Supreme Court) The petitioner had been funded by the state to carry out research on aggression in certain animals, particularly monkeys. He complained of criticism of his work decsribing it as wasteful. Held: Efforts to influence executive agencies are not privileged acts. Not every public employee is a public official.
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[ Worldlii ]
 
Koninklijke Scholten-Honig v Council and Commission C-143/77; [1979] EUECJ C-143/77
5 Dec 1979
ECJ

Constitutional
A finding that a legal situation resulting from a legislative measure by the Community involving choices of economic policy is illegal is insufficient by itself to involve the Community in liability under the second paragraph of article 215 of the EEC Treaty; in addition the measure must be vitiated by a sufficiently serious breach of a superior rule of law for the protection of the individual. In the context of community legislation in which one of the chief features is the exercise of a wide discretion essential in particular for the implementation of the common agricultural policy, the liability of the community can arise only exceptionally, that is to say, in cases in which the institution concerned has manifestly and gravely disregarded the limits on the exercise of its powers. Grave disregard is to be understood as meaning conduct verging on the arbitrary.
This concept is confirmed in particular by the fact that, even though an action for damages under article 178 and the second paragraph of article 215 of the Treaty constitutes an independent action, it must nevertheless be assessed having regard to the whole of the system of legal protection of individuals set up by the treaty. If an individual takes the view that he is injured by a community legislative measure which he regards as illegal he has the opportunity, when the implementation of the measure is entrusted to national authorities, to contest the validity of the measure, at the time of its implementation, before a national court in an action against the national authority. Such a court may, or even must, in pursuance of article 177 of the treaty, refer to the court of justice a question on the validity of the community measure in question. The existence of such an action is by itself of such a nature as to ensure the efficient protection of the individuals concerned.
[ Bailii ]
 
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