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Torts - Other - From: 1995 To: 1995

This page lists 21 cases, and was prepared on 02 April 2018.

 
Moon v Kent County Council and Another [1995] 3 WLR 318
1995


Torts - Other

1 Citers


 
Kitetechnology v Unicor GmbH Plastmaschinen [1995] FSR 765
1995


Torts - Other, Intellectual Property
It would not be correct to describe a infringement of breach of privacy as a tort.
1 Citers


 
Northern Territory v Mengel (1995) 69 ALJR 527
1995


Commonwealth, Torts - Other
(High Court of Australia) The court considered the ingredients of the tort of misfeasance in public office. Held: A necessary ingredient was proof of loss.
1 Citers



 
 Kitechnology BV v Unicor GmbH; CA 1995 - [1995] FSR 795; [1995] IL Pr 568
 
Burris v Azadani [1995] 4 All ER 802
1995
CA
Sir Thomas Bingham MR
Torts - Other, Litigation Practice
An injunction was granted excluding the defendant from an area. It was recognised that an exclusion zone may have the effect of restraining conduct not in itself tortious – e.g. travelling along a public highway – but such a restraint maybe imposed if it reasonably regarded as necessary for the protection of a plaintiff’s legitimate interests.
1 Citers


 
Hourihane and Another v Metropolitan Police Commissioner Independent, 18 January 1995
18 Jan 1995
CA

Torts - Other
A bind-over order is no bar to the defendant bringing an action against the police for malicious prosecution in the matters which led to the court appearance.

 
De Balkany v Christie Manson and Woods Ltd Independent, 19 January 1995; (1997) 16 Tr LR 163
19 Jan 1995
QBD
Morison J
Contract, Torts - Other
Over-painting was deemed to be a forgery within the Christie terms and conditions. The exception was excluded. Christie's was liable under the guarantee it had given. Morison J also considered (obiter) the defendant's possible liability in tort, and whether they had assumed responsibility for the attribution: "I first look at the question generally without reference to the conditions.
The special features of this case are that Christie's themselves have sole discretion over how they describe a lot. This fact is made known to buyers, in the sense that Christie's disclose to potential bidders some of the terms on which they are acting for the seller. Christie's employ skilled personnel who take considerable trouble to satisfy themselves as to the accuracy of the catalogue entries. This is well known. Buyers will know, therefore, that Christie's have satisfied themselves as to the authenticity of a Lot, and the cataloguing practice which is disclosed, gives considerable latitude for appropriate qualifications where Christie's are of the opinion that such is called for. The buyer is required to pay a substantial premium to the auctioneer. If the auctioneer assumes no responsibility to him, one might ask what the payment is for. On the other hand, in normal circumstances, a buyer has no reason to believe that an auctioneer has assumed any responsibility to him. The auctioneer is the seller's agent. The buyer only becomes contractually bound by the conditions when his bid has been accepted.
On balance, and primarily because Christie's take responsibility for the catalogue description which is an important feature from the buyer's point of view, and because the buyer pays a premium, I would be inclined to the view that there was an assumption of responsibility such that Christie's become liable to a buyer for negligent misstatement in the catalogue entries.
Do the Conditions affect this conclusion? Condition 3(a) says that statements in the catalogue are statements of Christie's opinion. Condition 11(a), under what might be thought to be an inappropriate heading 'Guarantee', excludes responsibility for the 'correctness' of any such statement but it does not, in terms, exclude responsibility for negligence. Condition 3(c) says that buyers must satisfy themselves as to the opinions expressed in the catalogue. I am, somewhat reluctantly, forced to the conclusion that Christie's have made it reasonably clear that they have not assumed any responsibility to the buyer for the way in which the statements in the catalogue are prepared.
In my judgment, a buyer at Christie's, as a buyer at a car auction, must satisfy himself about the goods and cannot, in law, rely upon what Christie's have said. The only right which a buyer has is that given to him by clause 11(b) where there is a forgery or where Christie's have been guilty of deceit. I do not regard this conclusion as satisfactory because it means that a buyer has got nothing of substance for his premium."
1 Citers



 
 Pritchard v Ministry of Defence; QBD 27-Jan-1995 - Times, 27 January 1995
 
Broxton v McClelland Unreported, 31 January 1995; [1995] EMLR 485
31 Jan 1995
CA
Simon Brown LJ
Torts - Other, Litigation Practice
The defendants issued various applications to strike out the claim, including a claim of abuse of process. The action was being financially maintained by a third party. The defendants contended that the maintainer's purpose was to oppress and ultimately bankrupt the defendants, and for that reason the action should be struck out as an abuse of process. Held: The proceedings should not be struck out since the plaintiffs were not seeking to achieve a collateral advantage beyond the scope of the action. The motive for bringing proceedings is irrelevant, and a plaintiff is entitled to seek the defendant's financial ruin if that would be the consequence of properly prosecuting a legitimate claim.
Simon Brown LJ extracted the following principles from earlier authorities: "(1) Motive and intention as such are irrelevant . . : the fact that a party who asserts a legal right is activated by feelings of personal animosity, vindictiveness or general antagonism towards his opponent is nothing to the point. . (2) Accordingly the institution of proceedings with an ulterior motive is not of itself enough to constitute an abuse: an action is only that if the Court's processes are being misused to achieve something not properly available to the plaintiff in the course of properly conducted proceedings. The cases appear to suggest two distinct categories of such misuse of process:
(i) The achievement of a collateral advantage beyond the proper scope of the action - a classic instance was Grainger -v- Hill where the proceedings of which complaint was made had been designed quite improperly to secure for the claimants a ship's register to which they had no legitimate claim whatever. The difficulty in deciding where precisely falls the boundary of such impermissible collateral advantage is addressed in Bridge LJ's judgment in Goldsmith -v- Sperrings Limited at page 503 D/H.
(ii) The conduct of the proceedings themselves not so as to vindicate a right but rather in a manner designed to cause the defendant problems of expense, harassment, commercial prejudice or the like beyond those ordinarily encountered in the course of properly conducted litigation.
(3) Only in the most clear and obvious case will it be appropriate upon preliminary application to strike out proceedings as an abuse of process so as to prevent a plaintiff from bringing an apparently proper cause of action to trial."
1 Cites

1 Citers


 
Balkanbank v Naser Taher and Others Times, 14 April 1995; [1995] 1 WLR 1067
13 Feb 1995
QBD
Clarke J
Torts - Other, Company
The plaintiff had obtained a worldwide Mareva injunction, giving an undertaking for damages. On its discharge, the defendants sought to make a counterclaim. The defendant company and its subsidiaries sought to counterclaim for their damages suffered as a result of the injunction. The Irish court had ordered an enquiry as to the damages. The counterclaim now additionally pleaded torts of malicious prosecution against the plaintiff. The defendant sought to add as defendants in the original claim (and claimants in the counterclaim) subsidiary companies which had also suffered as a result of the injunction. Held: The English court had jurisdiction to entertain the counterclaim relating to an alleged breach of the joint venture agreement under which the original injunction had been granted. It was desirable that the additional defendants should be joined to avoid a multiplicity of proceedings, and the claims fell within RSC15.6 after it had been extended following Vendervell Trustees. The remedy under a counterclaim might also be available to the company's subsidiaries. It was said that a claimant (the additional defendants here) could not pursue a claim of civil malicious prosecution where they were not parties to the original claim. It was arguable that a tort of malicious prosecution of a civil action could succeed and it should go ahead, with the defendants joined in as claimants under the counterclaim. The claim for abuse of process should also proceed to trial.
1 Cites


 
Wilding v Chief Constable of Lancashire Unreported, 22 May 1995
22 May 1995
CA
Nourse, Beldam and Kennedy LJJ
Police, Torts - Other
The court considered a claim by a woman for wrongful arrest and unlawful detention by police officers who had reasonably suspected her of burglary of the house of her former partner. In interview by the police, she denied the offence and made assertions that prompted the officers to contact the complainant to ask him to attend the police station to deal with them before continuing with the interview. Within about two hours after the complainant had been contacted and had made a statement, the police decided that there would be no further enquiries. They released the woman without charge, initially on bail, and subsequently did not charge her with any offence. On the issue whether it had been necessary, by reference to section 37(2) and (3) of PACE, to detain her in custody while they made those further enquiries. Held: Attempts to define, or to provide synonyms for, 'necessary' should be avoided. In such circumstances a court: "should ask itself the question, in circumstances like this, whether the decision of the custody sergeant was unreasonable in the sense that no custody officer, acquainted with the ordinary use of language and applying his common sense to the competing considerations before him, could reasonably have reached that decision.
Applying that test in this case, I bear in mind that what was being suggested was a comparatively short period of detention, so that the officers, having checked with . . the complainant . . whether or not there had been, for example, one telephone call about money or whether the appellant did in fact owe him any money, might then continue the interview, or restart the interview, for the purpose they had contended they had, which was obtaining evidence relating to the offence by questioning her. Looking at the matter from that standpoint, it seems to me that the custody officer could reasonably, in the circumstances of this case, have come to the conclusion that he had reasonable grounds for believing that the detention of the appellant without being charged was necessary within the meaning of the section."
Police and Criminal Evidence Act 1984 37(2) 37(3)
1 Citers


 
Woods v Commissioner of Police for the Metropolis Unreported, 26 May 1995
26 May 1995
CA
Nourse, Beldam and Kennedy LJJ
Police, Torts - Other
The court in considering the period of detention of the claimant, asked itself whether the circumstances were such that the decision of the custody sergeant was unreasonable in the sense that no custody sergeant, applying common sense to the competing considerations before him, could have continued to detain the suspect.
1 Citers


 
Martin v Watson Times, 14 July 1995; Gazette, 06 September 1995; Independent, 19 July 1995; [1996] AC 74; [1995] 3 WLR 318; [1995] 3 All ER 559; [1995] UKHL 25
13 Jul 1995
HL
Lord Keith of Kinkel
Torts - Other, Police
The plaintiff had been falsely reported to the police by the defendant, a neighbour, for indecent exposure whilst standing on a ladder in his garden. He had been arrested and charged, but at a hearing before the Magistrates' Court, the Crown Prosecution Service offered no evidence, and the charge was dismissed. He appealed against the decision that he could not claim in malicious prosecution. Held: The appeal succeeded, though there was no English authority on the topic. Since the facts relating to the alleged offence were solely within the complainant's knowledge, and that as a practical matter the police officer who laid the information could not have exercised any independent discretion, the complainant could be sued for malicious prosecution, and upheld an award of damages against her. The complainant had "in substance procured the prosecution". The police officer to whom the complaint was made had no way of testing the truthfulness of the accusation.
The tort of malicious prosecution can be committed by a informer knowingly and maliciously laying a false complaint to the police. The actions taken by the police are insufficient intervention to interfere with that liability. To ground a claim for malicious prosecution a plaintiff must prove (1) that the law was set in motion against him on a criminal charge; (2) that the prosecution was determined in his favour; (3) that it was without reasonable and proper cause, and (4) that it was malicious.
Lord Keith said: "It is common ground that the ingredients of the tort of malicious prosecution are correctly stated in Clerk & Lindsell on Torts ´In action of malicious prosecution the plaintiff must show first that he was prosecuted by the defendant, that is to say, that the law was set in motion against him on a criminal charge; secondly, that the prosecution was determined in his favour; and thirdly, that it was without reasonable and probable cause; fourthly, that it was malicious.'" and "The essential feature of malicious prosecution is an abuse of the process of the Court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law."
and "Where an individual falsely and maliciously gives a police officer information indicating that some person is guilty of a criminal offence and states that he is willing to give evidence in court of the matters in question, it is properly to be inferred that he desires and intends that the person he names should be prosecuted. Where the circumstances are such that the facts relating to the alleged offence can be within the knowledge only of the complainant, as was the position here, then it becomes virtually impossible for the police officer to exercise any independent discretion or judgment, and if a prosecution is instituted by the police officer the proper view of the matter is that the prosecution has been procured by the complainant."
Lord Keith also said: "Analogies were sought to be drawn with the immunity afforded in respect of evidence given in a court of law, which extends also to statements made to solicitors engaged in preparation for pending proceedings: Watson v M'Ewan . . No such analogy is, however, helpful. The essential feature of malicious prosecution is an abuse of the process of the court. If that has occurred it is immaterial that the abuse has involved giving evidence in a court of law. That was held in Roy v Prior [1971] A.C. 470 in relation to an action for malicious arrest . .
Similar considerations apply to statements made to the police under circumstances where the maker falls to be regarded as having in substance procured the prosecution. There is no way of testing the truthfulness of such statements before the prosecution is brought. To deny any remedy to a person whose liberty has been interfered with as a result of unfounded and malicious accusations in such circumstances would constitute a serious denial of justice."
1 Cites

1 Citers

[ Bailii ]
 
Losinjska Plovidba v Transco Overseas Ltd and Others Times, 18 July 1995
18 Jul 1995
QBD

Environment, Torts - Other
A company which releases dangerous chemicals is liable in tort if it fails to clean up those chemicals.


 
 Burris v Azadami; CA 9-Aug-1995 - Times, 09 August 1995; [1995] 1WLR 1373

 
 Hunter and Others v Canary Wharf Ltd; Same v London Docklands Development Board; CA 1-Nov-1995 - Gazette, 01 November 1995; Independent, 19 October 1995; Times, 13 October 1995; [1996] 2 WLR 348
 
Revill v Newberry Gazette, 06 December 1995; Times, 03 November 1995; Independent, 10 November 1995; [1995] EWCA Civ 10; [1996] QB 567
2 Nov 1995
CA
Neill LJ, Evans LJ, Millett LJ
Torts - Other, Personal Injury
A trespasser (even a thief) is entitled to protection from unnecessary violence, and to an award of damages for personal injuries inflicted. To deny the claimant compensation for an assault which went beyond self-defence was a different thing from denying him the fruits of his crime and was akin to outlawing him. In such a case there was simply no room for the turpitude doctrine.
Occupier's Liability Act 1984
1 Citers

[ Bailii ]

 
 Griffiths v Williams; CA 21-Nov-1995 - Times, 24 November 1995
 
In re S-C (Mental Patient: Habeas Corpus) [1996] QB 599; QBCOF 95/1657/D; [1996] 2 WLR 146; (1996) 29 BMLR 138; [1996] 1 All ER 532; [1996] Fam Law 210; [1995] EWCA Civ 60; [1996] 2 FCR 692; [1996] 1 FLR 548
22 Nov 1995
CA
Sir Thomas Bingham MR, Neill, Hirst LJJ
Health, Constitutional, Torts - Other
The Court of Appeal issued habeas corpus because the applicant was committed to a mental institution pursuant to an application which was made by somebody who lacked the statutory authority to make it. The right of personal freedom is fundamental. In the mental health context, if someone is to be taken out of the community and detained in a hospital there must be clear evidence that the medical condition of a patient justifies such action. A social worker could not make an application for an admission if the nearest relative objected. The correct procedures had not been followed.
Sir Thomas Bingham MR said: "As we are all well aware, no adult citizen of the United Kingdom is liable to be confined in any institution against his will, save by authority of law. That is a fundamental constitutional principle, traceable back to chapter 29 of Magna Carta 1297 . . and before that to chapter 39 of Magna Carta 1215."
Mental Health Act 1983 - Magna Carta 1297 29 - Magna Carta 1215 39
1 Citers

[ Bailii ]
 
Arthur and Another v Anker Times, 01 December 1995; Independent, 07 December 1995; [1997] QB 564
1 Dec 1995
CA
Sir Thomas Bingham, MR, Neill and Hirst LJJ
Torts - Other, Road Traffic
The owners of private land engaged the defendants to prevent unauthorised parking. The defendants erected notices at the entrance to the car park and placed notices around the perimeter in red and white under the prominent heading "Warning" and reading "Wheel clamping and removal of vehicles in operation. Vehicles failing to comply or left without authority will be wheel clamped and a release fee of £40 charged . . Vehicles causing an obstruction or damage or left for an unreasonable length of time may be towed away and held at the company's pound in Truro. A release fee of £90 plus storage costs will be charged. For release contact Armtrack Security". A parked there knowing that he was not entitled to and of stated consequences. His car was clamped, and he claimed for damages for tortious interference. The defendants counterclaimed because A, having refused to pay the £40 fee to have his car de-clamped, returned during the night and succeeded in removing his car together with the two clamps and padlocks that the defendants had used to immobilise his car. The defendants ran two defences to A's action. First that he had consented or alternatively assumed the risk of his car being clamped, so that what would otherwise have been tortious conduct by the defendants was not tortious. Second, that the defendants had seized the car damage feasant. Held: Wheel clamping was not illegal on private land with sufficient notice and a means of payment.
Sir Thomas Bingham, MR said: "The judge held that Mr Arthur parked in full knowledge that he was not entitled to park and of the possible consequences if he did. In those circumstances he was consenting to the consequences and could not thereafter complain of them. The effect of his consent was to render lawful conduct which would otherwise have been tortious."
Sir Thomas Bingham, MR later said: "The judge found that Mr Arthur knew of and consented to the risk of clamping, and counsel for the Arthurs conceded in his written argument on appeal that this was so. But, counsel argued that the demand for payment amounted to blackmail and that the commission of this crime negated the effect of Mr Arthur's consent. I give my reasons below for concluding that Mr Anker's requirement of payment as a condition of de-clamping the vehicle did not amount to blackmail. It is enough at this point to say that by voluntarily accepting the risk that his car might be clamped Mr Arthur also, in my view, accepted the risk that the car would remain clamped until he paid the reasonable cost of clamping and de-clamping. He consented not only to the otherwise tortious act of clamping the car but also to the otherwise tortious action of detaining the car until payment. I would not accept that the clamper could exact any unreasonable or exorbitant charge for releasing the car, and the court would be very slow to find implied acceptance of such a charge. The same would be true if the warning were not of clamping or towing away but of conduct by or on behalf of the land owner which would cause damage to the car. Nor may the clamper justify detention of the car after the owner has indicated willingness to comply with the condition for release: the clamper cannot justify any delay in releasing the car after the owner offers to pay and there must be means for the owner to communicate his offer. But those situations did not arise here. The judge held that the de-clamping fee was reasonable. The contrary has not been argued. In my view the judge was right to hold that Mr Arthur impliedly consented to what occurred and he cannot now complain of it. It follows that I would dismiss the Arthur's appeal against the judge's decision in so far as it rested on consent."
1 Citers



 
 Holt and Another v Payne Skillington (A Firm); CA 22-Dec-1995 - Gazette, 17 January 1996; Times, 22 December 1995
 
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