Dixon v Were: QBD 26 Oct 2004

The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant had not provided sufficient evidence to establish a loss of future high earnings. He did retain some capacity, but would have to receive some forms of nursing care.

Judges:

Gross J

Citations:

[2004] EWHC 2273 (QB)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Herring v Ministry of Defence CA 10-Apr-2003
The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the . .
Cited – Mallett v McMonagle HL 1970
The House discussed the role of the court in assessing future losses. Lord Diplock: ‘The role of the court in making an assessment of damages which depends upon its view as to what will be and what would have been is to be contrasted with its . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Doyle (By Her Mother and Next Friend) v Wallace CA 18-Jun-1998
A court awarding personal injury damages could make allowance for a prospective increase in salary which a claimant might have achieved upon completion of qualifications. In this case an increase was allowed at half up from an administrative pay . .
Cited – Davies v Taylor HL 1974
The plaintiff’s husband was killed in a road accident caused by the defendant’s negligence. They were childless. She had deserted him five weeks before his death and thereafter, he learned about her adultery with a fellow employee. He tried to . .
Cited – Langford v Hebran and Another CA 15-Mar-2001
The claimant sought damages for the loss of his chances of pursuing his career as a kick-boxer. The judge considered four different courses of varying success which his career might have taken. He accepted that, whether or not those scenarios had . .
Cited – White v Fell 12-Nov-1987
The court was asked to decide whether the claimant had been incapable of managing her property and affairs in the context of a Limitation Act defence.
Held: There are three features to which it is appropriate to have regard when assessing a . .
Cited – Masterman-Lister v Brutton and Co, Jewell and Home Counties Dairies (No 1) CA 19-Dec-2002
Capacity for Litigation
The claimant appealed against dismissal of his claims. He had earlier settled a claim for damages, but now sought to re-open it, and to claim in negligence against his former solicitors, saying that he had not had sufficient mental capacity at the . .
Cited – Woodrup v Nicol CA 1993
To decide the reasonableness of private medical and related expenses, regard must be had to section 2(4) [of the 1948 Act], which entails: ‘if, on the balance of probabilities, a plaintiff is going to use private medicine in the future as a matter . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Damages

Updated: 12 December 2022; Ref: scu.218854

Montross Associates Investments SA v Moussaieff: CA 1992

A covenant prohibited the lessee from carrying on a number of unacceptable trades and activities but ended, ‘but will use the demised premises either for the business of high class retailers of jewellery and/or antiques and/or luxury goods and/or travel agency or recognised bank the authorised name of which includes the word ‘Bank”.
Held: The appeal failed. There was no breach of the covenant whether it was positive or negative.

Citations:

[1992] 1 EGLR 55

Jurisdiction:

England and Wales

Citing:

Appeal from – Montross Associates Investments SA v Moussaieff ChD 1990
A covenant prohibited the lessee from carrying on a number of unacceptable trades and activities but ended, ‘but will use the demised premises either for the business of high class retailers of jewellery and/or antiques and/or luxury goods and/or . .

Cited by:

Cited – Blumenthal v The Church Commissioners for England CA 13-Dec-2004
The respondent argued that the power given to the Lands Tribunal by the section, did not extend to a power to vary a positive covenant.
Held: It could not be right to construe the obligation in the lease as a positive obligation rendering the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 12 December 2022; Ref: scu.220275

In re a Debtor (No 1 of 1987), ex parte the Royal Bank of Scotland: CA 1989

A statutory demand as served showed an incorrectly calculated sum owed and was in the wrong form.
Held: The application to set the demand aside was refused. A statutory demand should not be set aside for a mere technicality.
Lord Justice Nicholls said: ‘The question arising on this appeal concerns the exercise by the court of its power to set aside a statutory demand ‘on other grounds’ within sub-paragraph (d) [of rule 6.5(4)] In my view, the right approach to paragraph (4) of rule 6.5 is this. Under the Act, a statutory demand which is not complied with founds the consequence that the debtor is regarded as being unable to pay the debt in question or, if the debt is not immediately payable, as having no reasonable prospect of being able to pay the debt when it becomes due. That consequence, in turn, founds the ability of the creditor to present a bankruptcy petition because, under section 268(1), in the absence of an unsatisfied return to execution or other process, a debtor’s inability to pay the debt in question is established if, but only if, the appropriate statutory demand has been served and not complied with. When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.’
and ‘When therefore the rules provide, as does rule 6.5(4)(d), for the court to have a residual discretion to set aside a statutory demand, the circumstances which normally will be required before a court can be satisfied that the demand ‘ought’ to be set aside, are circumstances which would make it unjust for the statutory demand to give rise to those consequences in the particular case. The court’s intervention is called for to prevent that injustice.
This approach to sub-paragraph (d) is in line with the particular grounds specified in sub-paragraphs (a) to (c) of rule 6.5(4). Normally it would be unjust that an individual should be regarded as unable to pay a debt if the debt is disputed on substantial grounds: sub-paragraph (b). Likewise, if the debtor has a counterclaim, set-off or cross demand which equals or exceeds the amount of the debt: sub-paragraph (a). Again, if the creditor is fully secured: sub-paragraph (c).’

and ‘Nevertheless, applying the approach which I have indicated above as the correct approach to these statutory provisions, in my view it by no means follows from the existence of these defects that this statutory demand ought to be set aside. The court will exercise its discretion on whether or not to set aside a statutory demand, having regard to all the circumstances. That must require a court to have regard to all the circumstances as they are at the time of the hearing before the court. There may be cases where the terms of the statutory demand are so confusing or so misleading that, having regard to all the circumstances, justice requires that the demand should not be allowed to stand. There will be other cases where, despite such defects in the contents of the statutory demand, those defects have not prejudiced and will not prejudice the debtor in any way, and to set aside the statutory demand in such a case would serve no useful purpose. For example a debtor may be wholly unable to pay a debt which is immediately payable, either out of his own resources, or with financial assistance from others. In such a case the only practical consequence of setting aside a statutory demand would be that the creditor would immediately serve a revised statutory demand, which also and inevitably would not be complied with. In such a case the need for a further statutory demand would serve only to increase costs. Such a course would not be in the interests of anyone.’ and
‘In these circumstances I am in no doubt that, despite the mistakes in this statutory demand and the use strictly of the incorrect form, and despite the debtor not being aware of the precise amount of the debt when the demand was served on him, justice does not require that this statutory demand should be set aside. I can see no injustice in the consequences which flow from non-compliance with a statutory demand being permitted to flow in this case, despite the existence of those features.’

Judges:

Lord Justice Nicholls

Citations:

[1989] 1 WLR 271, [1989] 2 All ER 46

Statutes:

Insolvency Rules 1986 (1986 No 1925) 6.1 6.5(4)(d), Police Act 1996 2

Jurisdiction:

England and Wales

Cited by:

Cited – Coulter v Chief Constable of Dorset Police CA 8-Oct-2004
The appellant had failed in his action against the police and been ordered to pay the costs. A statutory demand was issued in the name of the respondent, but as the new chief constable had no deed of assignment, he was only equitable assignee.
Cited – TS and S Global Ltd v Fithian-Franks and others ChD 18-Jun-2007
Appeal against setting aside of statutory demand disputed as to amount of liability under contract.
Held: The guarantors’ liability under the guarantee was immediately payable by them, without the need for a demand, before service of the . .
Cited – Remblance v Octagon Assets Ltd CA 17-Jun-2009
A statutory demand was served against the guarantor of the lease after rent arrears arose. He applied for the demand to be set aside, and now appealed against its refusal. He said that the court would have set aside such a demand against the tenant, . .
Cited – Budge v AH Budge (Contractors) Ltd CA 1997
When being asked to set aside a statutory demand, and exercising the statutory discretion, the real question is whether the applicant can show ‘a substantial reason comparable to the sort of reason one sees in paras (a), (b) and (c) of r 6.5(4), why . .
Cited – White v Davenham Trust Ltd ChD 1-Nov-2010
. .
Cited – Mahon and Another v FBN Bank (UK) Ltd ChD 6-Jun-2011
The claimants appealed against a refusal to set aside a statutory demand. . .
Cited – White v Davenham Trust Ltd CA 28-Jun-2011
Appeal against order reinstating statutory demand. . .
Cited – Moore (T/A James Moore Earth Moving) v Inland Revenue ChNI 5-Dec-2001
Appeal against conditional setting aside of statutory demand. . .
Cited – Owo-Samson v Barclays Bank Plc, Boyden CA 21-May-2003
The appellant challenged a formal statutory demand which had led to his bankruptcy. The demand had included the anticipated cost of realising the charged property, and also had been inflated to allow for extra costs of dealing the appellant who was . .
Cited – Shaw and Another v MFP Foundations and Piling Ltd ChD 6-Jan-2010
The defendants appealed against a refusal to set aside statutory demands adjudicated due under the 1996 Act. They said that the judge had accepted that he was bound by MFO and that it was on all fours, but he had not followed it.
Held: The . .
Cited – Allen v Burke Construction Ltd ChNI 25-May-2010
. .
Lists of cited by and citing cases may be incomplete.

Insolvency, Equity

Updated: 12 December 2022; Ref: scu.220020

Jackson and Another v Royal Bank of Scotland: HL 27 Jan 2005

The claimants sought damages, alleging that a breach of contract by the defendant had resulted in their being unable to earn further profits elsewhere. The defendant said the damages claimed were too remote. The bank had, by error, disclosed to one customer the mark up being taken by the claimant company which had acted as importer.
Held: The Court of Appeal had wrongly applied the rule in Hadley v Baxendale. The court should look to what was by the parties expected at the time they made the contract. The House declined to return the case to the court at first instance to reassess damages

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Brown of Eaton-under-Heywood

Citations:

[2005] 1 WLR 377, [2005] UKHL 3, Times 02-Feb-2005, [2006] 1 AC 262, [2005] 4 All ER 1253

Links:

Bailii, House of Lords

Jurisdiction:

England and Wales

Citing:

Applied – Hadley v Baxendale Exc 23-Feb-1854
Contract Damages; What follows the Breach Naturaly
The plaintiffs had sent a part of their milling machinery for repair. The defendants contracted to carry it, but delayed in breach of contract. The plaintiffs claimed damages for the earnings lost through the delay. The defendants appealed, saying . .
Appeal from – Jackson and Davies (Trading As Samson Lancastrian) v Royal Bank of Scotland CA 28-Jun-2000
In error, the bank disclosed to one customer, the mark up being taken by another in selling on goods to that first customer. The second customer went to make its purchasers direct, and the first customer sought damages from the bank. The bank . .
Cited – Victoria Laundry (Windsor) Ltd v Newman Industries CA 1949
The plaintiffs claimed for loss of the profits from their laundry business because of late delivery of a boiler.
Held: The Court did not regard ‘loss of profits from the laundry business’ as a single type of loss. They distinguished losses . .
Cited – Kpohraror v Woolwich Building Society CA 1996
The Society, acting as a bank, had at first failed to pay its customer’s cheque for andpound;4,550, even though there were sufficient funds. The bank said that it had been reported lost. The customer sought damages to his business reputation.
Cited – H Parsons (Livestock) Limited v Uttley Ingham and C. Limited CA 1978
The defendants had installed a pig nut hopper for the plaintiffs, but failed to provide adequate ventilation, causing the nuts to go sour, and the pigs to be poisoned.
Held: Remoteness of damage is a question of law. The death of the pigs . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Czarnikow (C ) Ltd v Koufos; The Heron II HL 17-Oct-1967
The vessel had arrived late at Basrah in breach of the terms of the charterparty. The House was asked as to the measure of damages. The charterers had intended to sell the cargo of sugar promptly upon arrival, and now claimed for the fall in the . .

Cited by:

Appealed to – Jackson and Davies (Trading As Samson Lancastrian) v Royal Bank of Scotland CA 28-Jun-2000
In error, the bank disclosed to one customer, the mark up being taken by another in selling on goods to that first customer. The second customer went to make its purchasers direct, and the first customer sought damages from the bank. The bank . .
Cited – Cherry, Reclaiming Motion By Joanna Cherry QC MP and Others v The Advocate General SCS 11-Sep-2019
(First Division, Inner House) The reclaimer challenged dismissal of her claim for review of the recent decision for the prorogation of the Parliament at Westminster.
Held: Reclaim was granted. The absence of reasons allowed the court to infer . .
Lists of cited by and citing cases may be incomplete.

Damages

Updated: 12 December 2022; Ref: scu.222051

Dyer v Munday; Morris v Martin: CA 1895

The defendant, a hire purchase furniture dealer, sent his manager to recover back some furniture hired to X and upon which several instalments were unpaid. X had pledged the furniture to his landlord as security for his rent, and the landlord’s wife sought to prevent the manager from removing the furniture. The manager assaulted her in the house.
Held: The employer had placed his employee in a situation ‘where he may be expected on occasions to have to resort to personal violence’. There is no rule of law that vicarious responsibility should cease to apply when the conduct for which liability is imposed is criminal rather than just tortious. ‘The liability of the master does not rest merely on the question of authority, because the authority given is generally to do the master’s business rightly; but the law says that if, in course of carrying out his employment, the servant commits an excess beyond the scope of his authority, the master is liable.’

Judges:

Lord Esher MR

Citations:

[1895] 1 QB 742

Jurisdiction:

England and Wales

Cited by:

Cited – Lister and Others v Hesley Hall Ltd HL 3-May-2001
A school board employed staff to manage a residential school for vulnerable children. The staff committed sexual abuse of the children. The school denied vicarious liability for the acts of the teachers.
Held: ‘Vicarious liability is legal . .
Cited – Majrowski v Guy’s and St Thomas’ NHS Trust CA 16-Mar-2005
The claimant had sought damages against his employer, saying that they had failed in their duty to him under the 1997 Act in failing to prevent harassment by a manager. He appealed a strike out of his claim.
Held: The appeal succeeded. The . .
Lists of cited by and citing cases may be incomplete.

Crime, Vicarious Liability

Updated: 12 December 2022; Ref: scu.214873

Massey v Midland Bank Plc: CA 1995

Where a woman executes a mortgage charging her property in favour of the bank to secure her partner’s debts, the bank is fixed with notice of the possibility of undue influence. It was not necessary that the couple should be married or cohabit.

Judges:

Steyn LJ

Citations:

[1995] 1 All ER 929

Jurisdiction:

England and Wales

Cited by:

Cited – Royal Bank of Scotland v Etridge (No 2); Barclays Bank plc v Harris; Midland Bank plc v Wallace, etc HL 11-Oct-2001
Wives had charged the family homes to secure their husband’s business borrowings, and now resisted possession orders, claiming undue influence.
Held: Undue influence is an equitable protection created to undo the effect of excess influence of . .
Considered – Governor and Company of Bank of Scotland v Bennett and Another ChD 1997
Mrs Bennett defended the bank’s claim for possession of the matrimonial home charged to the bank to secure her husband’s borrowings. She said that her signature, both to the guarantee and to the legal charge, had been procured by her husband’s undue . .
Lists of cited by and citing cases may be incomplete.

Undue Influence, Banking

Updated: 12 December 2022; Ref: scu.224818

Barclays Bank Plc v Kapur and Others (No 2): CA 1995

An unjustified sense of grievance cannot amount to a detriment in discrimination law.

Citations:

[1995] IRLR 87

Jurisdiction:

England and Wales

Citing:

See also – Barclays Bank Plc v Kapur and Others CA 15-Aug-1994
Whether there has been discrimination is independent and irrespective of the discriminator’s motives. . .
See also – Barclays Bank Plc v Kapur and others EAT 3-Dec-1992
. .

Cited by:

Cited – Shamoon v Chief Constable of the Royal Ulster Constabulary HL 27-Feb-2003
The applicant was a chief inspector of police. She had been prevented from carrying out appraisals of other senior staff, and complained of sex discrimination.
Held: The claimant’s appeal failed. The tribunal had taken a two stage approach. It . .
Cited – St Helens Borough Council v Derbyshire and others HL 25-Apr-2007
The claimants were pursuing an action for equal pay. Several others settled their own actions, and the respondents then wrote direct to the claimants expressing their concern that the action ws being continued and its possible effects. The claimants . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 12 December 2022; Ref: scu.207075

Hippolyte v London Borough of Bexley: CA 1995

In many cases the trial judge is in a better position than an appellate court to make the correct finding as to inferences from the facts found: ‘It is in my judgment very important to bear in mind that this is an appeal on issues of fact, albeit that it involves, principally, a challenge to inferences. It is important to note the approach that the law requires of an appellant court. Where there has been no misdirection on fact by the trial judge, the presumption is that his conclusion is correct. The appellate court will only reverse it where it is convinced that it is wrong. In such a case, if the appellate court is merely left in doubt as to the correctness of the conclusion, then it will uphold it. For my part, I am satisfied that nowhere in the judgment is there to be found any misdirection by the judge. Indeed, I pay tribute to a careful and balanced judgment. Furthermore, it must be borne in mind that even in relation to inferences from established fact, a trial judge is often in a superior position to the Court of Appeal. This is, in my judgment, such a case. I say that because what we are concerned with is a judge’s interpretation of primary facts, and it is that interpretation which has proved to be the decisive matter in the case.’

Judges:

Steyn LJ

Citations:

[1995] PIQR P309

Jurisdiction:

England and Wales

Cited by:

Cited – Kearn-Price v Kent County Council CA 30-Oct-2002
The claimant was injured, being hit in the face by a football in a school playground. It was before school started. There had been accidents, and there were rules which had not been enforced. The school appealed a finding of negligence.
Held: . .
Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 12 December 2022; Ref: scu.214303

PLG Research Ltd and Another v Ardon International Ltd and Others: CA 1995

As to Catnic: ‘Lord Diplock was expounding the common law approach to the construction of a patent. This has been replaced by the approach laid down by the Protocol. If the two approaches are the same, reference to Lord Diplock’s formulation is unnecessary, while if they are different it is dangerous.’

Judges:

Millett LJ

Citations:

Times 25-Nov-1994, [1995] RPC 287

Jurisdiction:

England and Wales

Citing:

Appeal from – PLG Research Ltd and Another v Ardon International Ltd and Others ChD 25-Nov-1994
A patent infingement claim was met by the assertion that the material covered had been disclosed before the patent had been obtained. The court was asked as to the test of whether the information in a claim had been disclosed. Aldous J said: ‘Mr. . .
Cited – Catnic Components Ltd and Another v Hill and Smith Ltd HL 1982
The plaintiffs had been established as market leaders with their patented construction, had ample production capacity and stocks, but had never granted any licence under their patent. The patent was for a novel type of galvanised steel lintel, which . .

Cited by:

Cited – Kirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 12 December 2022; Ref: scu.218735

Orakpo v Barclays Insurance Services and Another: CA 1995

The insured sought to claim under his policy. The insurance company declined any payment, saying that part of the claim was fraudulent.
Hoffmann LJ said: ‘In my view, the claim also fails on the ground that it was substantially fraudulent. The relevant principle is stated as follows by Malcolm Clark in his book, The Law of Insurance Contracts (1989), at p.43 ‘This proposition is supported by both principle and authority. In principle insurance is a contract of good faith. I do not see why the duty of good faith on the part of the assured should expire when the contract has been made. The reasons for requiring good faith continue to exist. Just as the nature of the risk will usually be within the peculiar knowledge of the insured, so will circumstances of the casualty, it will rarely be within the knowledge of the insurance company. I think that the insurance company should be able to trust the assured to put forward a claim in good faith. Any fraud in making the claim goes to the root of the contract and entitles the insurer to be discharged. One should naturally not readily infer fraud from the fact that the insured has made a doubtful or even exaggerated claim.”
Sir Roger Parker said: ‘The appellant submits that the law, in the absence of a specific clause, is that an insured may present a claim which is to his knowledge fraudulent to a very substantial extent, but yet may recover in respect of the part of the claim which cannot be so categorized. To accept this proposition involves holding that, although an insurance contract is one of utmost good faith, an assured may present a positively and substantially fraudulent claim without penalty, save that his claim will to that extent be defeated on the facts. He may yet, it is said, recover on the honest part of the claim. I would be unable to accept such a proposition without compelling authority and there is none.

Judges:

Staughton LJ Hoffmann LJ and Sir Roger Parker

Citations:

[1995] Ll RLR 443, [1995] Lloyd’s Rep IR 443

Jurisdiction:

England and Wales

Cited by:

Cited – Galloway v Guardian Royal Exchange (UK) Limited CA 15-Oct-1997
The claimant’s policy had been declared void ab initio by the court. On the application form he had falsely stated that he had no convictions, but had only shortly before been convicted of obtaining a pecuniary advantage by deception. Part of the . .
Cited – Versloot Dredging Bv and Another v Hdi Gerling Industrie Versicherung Ag and Others SC 20-Jul-2016
The ‘DC MERWESTONE’ suffered a water ingress of water flooding the engine room. This resulted from (i) the negligence of the crew in failing to close the sea inlet valve of the emergency fire pump and drain down the system, after they had used the . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 12 December 2022; Ref: scu.214225

Kitechnology BV v Unicor GmbH: CA 1995

The plaintiffs owned confidential information relating to novel plastic coated pipes; the defendants were German companies and individuals domiciled in Germany, who it was alleged had used the plaintiffs’ confidential information. One issue the court had to consider was whether, in relation to (non-contractual) claims for breach of confidence, the claims arose in tort, thus giving the court jurisdiction under Article 5(3) of the Brussels Convention (which provided that a person domiciled in a Contracting State may be sued in another Contracting State in matters relating to tort, delict or quasi delict in the courts for the place where the harmful event occurred).
Held: Evans LJ said that the classification of the claims for English law was the starting point for consideration of whether they fell within Article 5(3). It was clear that such claims did not arise in tort.

Judges:

Evans, Waite LJJ, Sir Donald Nicholls VC

Citations:

[1995] FSR 795, [1995] IL Pr 568

Statutes:

Private International Law (Miscellaneous Provisions) Act 1995

Jurisdiction:

England and Wales

Citing:

Applied – Metal und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 27-Jan-1989
The claimants sued for negligent advice and secured judgment. The defendant company became insolvent, and so the plaintiff now sued the US parent company alleging conspiracy. The court considered a tort of malicious prosecution of a civil claim, . .

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 – Google Inc v Vidal-Hall and Others CA 27-Mar-2015
Damages for breach of Data Protection
The claimants sought damages alleging that Google had, without their consent, collected personal data about them, which was resold to advertisers. They used the Safari Internet browser on Apple products. The tracking and collation of the claimants’ . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Torts – Other

Updated: 12 December 2022; Ref: scu.225464

Rex v Montague: 1825

The Commissioners of Sewers might have the power to extinguish public rights of navigation if they found that it would be for the benefit of the whole level.

Judges:

Bayley J

Citations:

Unreported 1825

Jurisdiction:

England and Wales

Cited by:

Cited – Rowland v The Environment Agency ChD 19-Dec-2002
Public rights of Navigation have since time immemorial at common law existed over the Thames including (unless and until extinguished or ceasing to be exercisable) Hedsor Water. The claimant sought a declaration that rights of navigation over that . .
Lists of cited by and citing cases may be incomplete.

Utilities, Land

Updated: 12 December 2022; Ref: scu.187534

Coudert Brothers v Normans Bay Limited (Formerly Illingworth, Morris Limited): CA 27 Feb 2004

The respondent had lost its investment in a Russian development, and the appellants challenged a finding that they had been negligent in their advice with regard to the offer documents.
Held: As to the basis of calculation of damages as to a loss of chance, the root question was what damages had followed. The Appeal was allowed in part. A defendant should be disallowed from relying upon a wrong he had himself committed to reduce the damages which might otherwise flow.

Judges:

Lord Justice Laws Lord Justice Waller Lord Justice Carnwath

Citations:

[2004] EWCA Civ 215, Times 24-Mar-2004, Gazette 01-Apr-2004

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Appeal from – Normans Bay Limited (Formerly Illingworth Morris Limited) v Coudert Brothers (A Firm) QBD 19-Feb-2003
The claimant instructed the defendant firm to act in advising in support of an investment in Russia. The investment was declared invalid in the courts of Russia, and the claimant said that the defendant should have forewarned them of the problem, . .
Cited – Hotson v East Berkshire Health Authority HL 2-Jul-1988
The claimant (then 13) fell twelve feet in climbing a tree and sustained an acute traumatic fracture of the left femoral epiphysis. At hospital, his injury was not correctly diagnosed or treated for five days, and he went on to suffer a vascular . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Chaplin v Hicks CA 1911
A woman who was wrongly deprived of the chance of being one of the winners in a beauty competition was awarded damages for loss of a chance. The court did not attempt to decide on balance of probability the hypothetical past event of what would have . .
Cited – Kitchen v Royal Air Force Association CA 1958
The plaintiff’s husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. A solicitor failed to issue a writ in time and deprived the plaintiff of the opportunity to pursue court proceedings.
Held: Damages were not . .
Cited – Gregg v Scott CA 29-Oct-2002
The claimant sought damages. He had a lymphoma, but despite his seeking medical assistance, it was not diagnosed early, and his life expectancy was diminished.
Held: In order to claim damages for a reduced life expectancy, the claimant had to . .
Cited – Bolitho v City and Hackney Health Authority HL 24-Jul-1997
The plaintiff suffered catastrophic brain damage as a result of cardiac arrest induced by respiratory failure as a child whilst at the defendant hospital. A doctor was summoned but failed to attend, and the child suffered cardiac arrest and brain . .
Cited – Goode v Martin CA 13-Dec-2001
The claimant had sought to amend her claim for damages for personal injuries. The application had been rejected as introducing a claim not based on the same facts. She had suffered severe head injuries, and had no memory of the accident. She served . .
Cited – Fairchild v Glenhaven Funeral Services Ltd and Others HL 20-Jun-2002
The claimants suffered mesothelioma after contact with asbestos while at work. Their employers pointed to several employments which might have given rise to the condition, saying it could not be clear which particular employment gave rise to the . .

Cited by:

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

Contract, Company, Professional Negligence, Damages

Updated: 12 December 2022; Ref: scu.194076

In re British and Commonwealth Holdings plc (Nos 1 and 2): HL 1993

Section 236 extended the power of a liquidator to require from the company’s officers all the documents he would reasonably need in order to fulfil his duties under the Act.
Lord Slynn said: ‘The protection for the person called upon to produce documents lies, thus, not in a limitation by category of documents (‘reconstituting the company’s state of knowledge’) but in the fact that the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. A proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirement. An application is not necessarily unreasonable because it is inconvenient for the addressee of the application or causes him a lot of work or may make him vulnerable to future claims or is addressed to a person who is not an officer or employee of or a contractor with the company in administration, but all these will be relevant factors, together no doubt with many others.’
and: ‘the applicant must satisfy the court that, after balancing all the relevant factors, there is a proper case for such an order to be made. The proper case is one where the administrator reasonably requires to see the documents to carry out his functions and the production does not impose an unnecessary and unreasonable burden on the person required to produce them in the light of the administrator’s requirements.’

Judges:

Lord Slynn

Citations:

[1993] AC 426, [1992] 4 All ER 876, [1992] 3 WLR 853

Statutes:

Insolvency Act 1986 236

Jurisdiction:

England and Wales

Cited by:

Cited – Official Receiver v Wadge Rapps and Hunt (a firm) and another and two other actions HL 31-Jul-2003
(Orse In re Pantmaenog Timber Co Ltd)
The Receiver sought to use information obtained under section 236 (documents recovered from the directors’ solicitors) in disqualification proceedings.
Held: The appeal succeeded. The Act had . .
Cited – Green v BDO Stoy Hayward LLP ChD 2-Nov-2005
The liquidator sought production of the company’s books and documents held by the defendant as former auditors of the company.
Held: The power to order discovery could be more freely exercised against an officer of a company than against a . .
Lists of cited by and citing cases may be incomplete.

Company, Insolvency

Updated: 12 December 2022; Ref: scu.186362

Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others: ComC 20 Feb 1997

ComC Lloyd’s Litigation – issues relating to recovery from names.
Held: A name at Lloyd’s grants a power of attorney to the underwriting agent to execute that power which is irrevocable.

Judges:

Colman J

Citations:

[1997] CLC 759, [1997] 6 Re LR 214

Jurisdiction:

England and Wales

Cited by:

Appeal from – Society of Lloyd’s v Leighs; Lyon and Wilkinson and Canadian Names Intervenors CA 31-Jul-1997
. .
See Also – Society of Lloyd’s v D Leighs and Others; Society of Lloyd’s v D Wilkinson and Others (No. 2) ComC 23-Apr-1997
ComC Lloyd’s Litigation – Misrepresentation, fraudulent – Rescission, restitutio in integrum – Rescission, effect on third parties’ rights – Anti-set-off clauses, counterclaim for fraud – Pay now, sue later . .
Cited – Bailey and Another v Angove’s Pty Ltd SC 27-Jul-2016
The defendant had agreed to act as the claimant’s agent and distributor of the claimant’s wines in the UK. It acted both as agent and also bought wines on its own account. When the defendant went into litigation the parties disputed the right of the . .
Lists of cited by and citing cases may be incomplete.

Insurance, Agency

Updated: 12 December 2022; Ref: scu.186614

Boulton v Jones: CEC 25 Nov 1857

Supply contract not assignable without consent

The defendant sent a written order for goods to a shop owned by Brocklehurst and which was addressed to him by name. Unknown to the defendant, Brocklehurst had earlier that day sold and transferred his business to Boulton. Boulton fulfilled the order and delivered the goods to the defendant without notifying him that he had taken over the business. The defendant accepted the goods and consumed them in the belief that they had been supplied by Brocklehurst. When he received Boulton’s invoice he refused to pay it, claiming that he had intended to deal with Brocklehurst personally, since he had dealt with him previously and had a set-off on which he had intended to rely.
Held: The defendant was not liable for the price. There was no contract.
Pollock CB said: ‘Now the rule of law is clear, that if you propose to make a contract with A, then B cannot substitute himself for A without your consent and to your disadvantage, securing to himself all the benefit of the contract.’
Bramwell B said: ‘I do not lay it down that because a contract was made in one person’s name another person cannot sue upon it, except in cases of agency. But when any one makes a contract in which the personality, so to speak, of the particular party contracted with is important, for any reason, whether because it is to write a book or paint a picture, or do any work of personal skill, or whether because there is a set-off due from that party, no one else is at liberty to step in and maintain that he is the party contracted with, that he has written the book or painted the picture, or supplied the goods; and that he is entitled to sue, although, had the party really contracted with sued, the defendant would have had the benefit of his personal skill, or of a set-off due from him.’
Channell B: ‘The plaintiff is clearly not in a situation to sustain this action, for there was no contract between himself and the defendant. The case is not one of principal and agent; it was a contract made with B, who had transactions with the defendant and owed him money, and upon which A seeks to sue.’
Martin B said: ‘Where the facts prove that the defendant never meant to contract with A alone, B can never force a contract upon him; he has dealt with A, and a contract with no one else can be set up against him.’

Judges:

Pollock CB, Martin B, Bramwell B, Channell B

Citations:

(1857) 2 H and N 564, [1857] EngR 935, (1857) 157 ER 232

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

Cited – Shogun Finance Limited v Hudson HL 19-Nov-2003
Thief acquired no title and could not sell
A purchaser used a stolen driving licence to obtain credit for and purchase a car. He then purported to sell it to the respondent, and then disappeared. The finance company sought return of the car.
Held: (Lords Nicholls and Millett . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 December 2022; Ref: scu.188455

Cornick v Cornick (No 2): CA 2 Jan 1995

The court considered the boundary of its power in ordering periodical payments: ‘I do not believe that Hale J erred in her approach in principle to this case, and I reject the submission which Mr Mostyn has made that there was a delimiting factor (as he termed it) which should have had the effect of restricting a judge hearing an application for variation to what he termed the budgetary or marital standard.’

Judges:

Sir Stephen Brown P

Citations:

[1995] 2 FLR 490

Jurisdiction:

England and Wales

Citing:

Approved – Boylan v Boylan 1988
. .
Appeal from – Cornick v Cornick (No 2) FD 1995
The court considered an application to vary an ancillary relief award and gave a wife more than the sum set out in the budget in circumstances where she had received a capital sum that, with hindsight, was far too low.
Hale J said: ‘Where such . .
See also – Cornick v Cornick (No 1) FD 1994
. .

Cited by:

Cited – Pearce v Pearce CA 28-Jul-2003
The financial claims on divorce had been settled by a compromise recorded in a court order. The order included periodical payments to the former wife. After she suffered financial losses, she sought an increase, and the former husband sought an . .
Cited – McFarlane v McFarlane; Parlour v Parlour CA 7-Jul-2004
Appeals were made against orders for periodical payments made against high earning husbands. The argument was that if the case of White had decided that capital should be distributed equally, the same should apply also to income.
Held: The . .
See also – Cornick v Cornick (No 3) FD 2001
The court considered its powers when being asked to vary a lump sum provision at the same time as a variation of maintenance.
Held: ‘section 31(7B) clearly introduces a wide discretionary power to be exercised by applying the words of the . .
Cited – M v M (Financial Relief: Substantial Earning Capacity) FD 29-Mar-2004
The parties had been married for 12 years, there were three children, one with special needs, and assets of over 12 million pounds. The court considered the application for ancillary relief. It was substantially agreed that the wife should receive . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 12 December 2022; Ref: scu.186017

Aggeliki Charis Compania Maritima SA v Pagnan SpA – The Angelic Grace: CA 1995

On the charterers’ orders the Angelic Grace was required to tie up alongside another vessel which they owned. Whilst unloading the weather turned and the vessels collided. Each blamed the other and the owners claimed a salvage. The court considered the clause ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying on business in London.’
Held: The judgment of Rix J was approved. The parties had most probably wished to have one stop adjudication, so that if a part of the claim or cross claim arose out of the contract it was inherently likely that the parties intended that they should all be heard in one forum if the facts were closely knitted together.
The court rejected the idea that the grant of an injunction to restrain foreign proceedings which were in clear breach of contract would offend against comity. It did so on the basis that it is vexatious and oppressive for a party to maintain proceedings in breach of its agreement not to do so. Millett LJ: ‘In my judgment, the time has come to lay aside the ritual incantation that this is a jurisdiction which should only be exercised sparingly and with great caution. There have been many statements of great authority warning of the danger of giving an appearance of undue interference with the proceedings of a foreign Court. Such sensitivity to the feelings of a foreign Court has much to commend it where the injunction is sought on the ground of forum non conveniens or on the general ground that the foreign proceedings are vexatious or oppressive but where no breach of contract is involved. In the former case, great care may be needed to avoid casting doubt on the fairness or adequacy of the procedures of the foreign Court. In the later case, the question whether proceedings are vexatious or oppressive is primarily a matter for the Court before which they are pending. But in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to being them.
I cannot accept the proposition that any Court would be offended by the grant of an injunction to restrain a party from invoking a jurisdiction which he had promised not to invoke and which it was its own duty to decline.
In my judgment, where an injunction is sought to restrain a party from proceeding in a foreign Court in breach of an arbitration agreement governed by English law, the English Court need feel no diffidence in granting the injunction, provided that it is sought promptly and before the foreign proceedings are too far advanced. I see no difference in principle between an injunction to restrain proceedings in breach of an arbitration clause and one to restrain proceedings in breach of an exclusive jurisdiction clause as in Continental Bank NA v Aeakos Compania Naviera SA, [1994] 1WLR 588. The justification for the grant of the injunction in either case is that without it the plaintiff will be deprived of its contractual rights in a situation in which damages are manifestly an inadequate remedy. The jurisdiction is, of course, discretionary and is not exercised as a matter of course, but good reason needs to be shown why it should not be exercised in any given case.’
Leggatt LJ said: ‘The question in a nutshell is whether the relevant claims and cross-claims arise out of the contract. It is common ground that the question must be answered in the light of The Playa Larga [1983] 2 Lloyd’s Law Reports 171, in which the Court upheld the dictum of Mr Justice Mustill that a tortious claim does arise out of a contract containing an arbitration clause if there is a sufficiently close connection between the tortious claim and a claim under the contract. In order that there should be a sufficiently close connection, as the Judge said, the claimant must show either that the resolution of the contractual issue is necessary for a decision on the tortious claim, or, that the contractual and tortious disputes are so closely knitted together on the facts that an agreement to arbitrate on one can properly be construed as covering the other.’

Judges:

Leggatt LJ, Millett LJ, Neill LJ

Citations:

[1995] 1 Lloyd’s Rep 87

Jurisdiction:

England and Wales

Citing:

Appeal from – Aggeliki Charis Compania Maritima SA v Pagnan SpA The Angelic Grace QBD 1994
The court considered whether a claim for a collision between two ships was governed by an arbitration clause which read ‘all disputes from time to time arising out of this contract shall . . be referred to the arbitrament of two arbitrators carrying . .

Cited by:

Cited – National Westminster Bank v Utrecht-America Finance Company CA 10-May-2001
An agreement between the parties for assignment or novation of a credit agreement, contained a ‘take out’ agreement (‘TOA’). The defendant began proceedings in California to rescind the agreement, and the claimants obtained summary judgement under . .
Cited – OT Africa Line Ltd v Magic Sportswear Corporation and others CA 13-Jun-2005
The parties to a contract had agreed that the proper law for the contract was England. One party commenced proceedings in Canada, and the courts of Canada had accepted jurisdiction as the most appropriate and convenient forum to resolve the dispute. . .
Cited – Fiona Trust and Holding Corp and others v Privalov and others ComC 20-Oct-2006
The parties disputed whether their claim should be arbitrated.
Held: A claim as to whether the contract itself had been made was not one which could be arbitrated by provisions in that contract. It does not arise ‘under’ the contract. The . .
Cited – Sheffield United Football Club Ltd v West Ham United Football Club Plc ComC 26-Nov-2008
The claimant sought an order to prevent the defendant company from pursuing further an appeal against a decision made by an independent arbitator in their favour as regards the conduct of the defendant in the Premier League in 2006/2007.
Held: . .
Cited – S Ltd v C Ltd ComC 27-Feb-2009
Defamation allegation not subject to arbitration
The parties had an agreement referring disputes between them to arbitration. One party raised an allegation of defamation, but the arbitrator refused jurisdiction. The parties had chosen the London Metal Exchange for its expertise in metals trading, . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction, Contract

Updated: 12 December 2022; Ref: scu.185976

Caudle and Others v Sharp; Grove v Sharp: CA 1995

A series of 32 asbestosis reinsurance contracts had been underwritten by Mr Outhwaite him without doing any proper assessment of the risk. The insurance had the wording: ‘each and every loss and/or occurrence . . and/or series of losses and/or occurrences . . arising out of one event’.
Held: The court did not in the context of that policy consider that the ‘one event’ need be an insured peril but did reject the idea that anything that happened could properly be described as ‘an event’. It distinguished between a historical event such as the hundred years war and a single event such as a particular hurricane. Mr Outhwaite’s repeated negligence, his sustained state of ignorance of the truth, could not be described as a single event.

Judges:

Evans LJ

Citations:

[1995] LRLR 433

Jurisdiction:

England and Wales

Citing:

Appeal from – Caudle and Others v Sharp; Grove v Sharp QBD 8-Mar-1994
A continuing failure to investigate the risks of re-insurance was properly to be consideerd one event. . .

Cited by:

Appealed to – Caudle and Others v Sharp; Grove v Sharp QBD 8-Mar-1994
A continuing failure to investigate the risks of re-insurance was properly to be consideerd one event. . .
Cited – Lloyds TSB General Insurance Holdings and others v Lloyds Bank Group Insurance Company Ltd HL 31-Jul-2003
The applicant had paid out many claims for mis-selling pensions. They sought to claim under their insurance. The claims met the requirements of the principle insurance, but the insurance companies sought to impose a limit by aggregation.
Held: . .
Lists of cited by and citing cases may be incomplete.

Insurance

Updated: 12 December 2022; Ref: scu.185433

Philips Electronique v British Sky Broadcasting Ltd: CA 1995

There is a presumption against adding terms to a contract. The presumption is stronger where the contract is in writing and represents an apparently complete bargain between the parties. Sir Thomas Bingham MR set out Lord Simon’s formulation, and described it as a summary which distilled ‘the essence of much learning on implied terms’ but whose ‘simplicity could be almost misleading’. He then explained that it was ‘difficult to infer with confidence what the parties must have intended when they have entered into a lengthy and carefully-drafted contract but have omitted to make provision for the matter in issue’, because ‘it may well be doubtful whether the omission was the result of the parties’ oversight or of their deliberate decision’, or indeed the parties might suspect that ‘they are unlikely to agree on what is to happen in a certain . . eventuality’ and ‘may well choose to leave the matter uncovered in their contract in the hope that the eventuality will not occur’. Sir Thomas continued: ‘The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. [He then quoted the observations of Scrutton LJ in Reigate, and continued] [It is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred …’
Bingham MR stated:
‘The question of whether a term should be implied, and if so what, almost inevitably arises after a crisis has been reached in the performance of the contract. So the court comes to the task of implication with the benefit of hindsight, and it is tempting for the court then to fashion a term which will reflect the merits of the situation as they then appear. Tempting, but wrong. . . [It is not enough to show that had the parties foreseen the eventuality which in fact occurred they would have wished to make provision for it, unless it can also be shown either that there was only one contractual solution or that one of several possible solutions would without doubt have been preferred.’

Judges:

Sir Thomas Bingham MR

Citations:

[1995] EMLR 472

Jurisdiction:

England and Wales

Citing:

Cited – BP Refinery (Westernport) Pty Ltd v The Shire of Hastings PC 1977
(Victoria) The Board set out the necessary conditions for a clause to be implied into a contract.
Held: Lord Simon of Glaisdale said: ‘Their Lordships do not think it necessary to review exhaustively the authorities on the implication of a . .

Cited by:

Cited – Robin Ray v Classic FM Plc PatC 18-Mar-1998
Contractor and Client Copyrights
The plaintiff had contributed a design for a system of classifying and selecting tracks to be played on a radio station. He did so under a consultancy contract.
Held: A Joint authorship claim required that the contributor had made some direct . .
Cited – Legal and General Assurance Society Ltd v Expeditors International (Uk) Ltd CA 24-Jan-2007
Leases contained break clauses which the tenant purported to exercise. The landlord replied that they were ineffective because the tenant had not complied with his repair covenants. The dispute appeared settled after negotiations, and the settlement . .
Cited – R Griggs Group Ltd, R Griggs and Co Ltd, Airwair Ltd v Evans, Raben Footwear Pty Ltd, Lewy, Lewy CA 25-Jan-2005
The claimants distributed Doc Marten footwear. They asked an agency to prepare a logo. The agency paid an independent contractor to prepare it, but did not take an assignment of copyright to it. The contractor sold the rights in the logo to the . .
Cited – Paymaster (Jamaica) Ltd and Another v Grace Kennedy Remittance Services Ltd PC 11-Dec-2017
(Court of Appeal of Jamaica) The parties disputed the ownership of copyight in certain computer software, and also an allegation of the misuse of confidential information. . .
Cited – Marks and Spencer Plc v BNP Paribas Securities Services Trust Company (Jersey) Ltd and Another SC 2-Dec-2015
The Court considered whether, on exercising a break clause in a lease, the tenant was entitled to recover rent paid in advance.
Held: The appeal failed. The Court of Appeal had imposed what was established law. The test for whether a clause . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 12 December 2022; Ref: scu.188600

E (A Minor) v Dorset County Council: CA 1995

It is generally unwise to give summary judgment in cases where the relevant law is uncertain or in a state of development: ‘This must mean that where the legal viability of a cause of action is unclear (perhaps because the law is in a state of transition), or is in any way sensitive to the facts, an order to strike out should not be made.’
Sir Thomas Bingham MR: ‘I would accept that certain elements pleaded as damage by Richard (for example the allegation that he suffered distress and that he is a shy, diffident person) cannot be compensated in damages, and similar points may be made about E’s claim that he was ‘upset’. It is also quite clear that none of the plaintiffs can recover damages for a congenital defect. If, however, a plaintiff can show (1) that the adverse consequences of his congenital defect could have been mitigated by early diagnosis of the defect and appropriate treatment or education provision; (2) that the adverse consequences of his congenital defect were not mitigated because early diagnosis was not made, or appropriate treatment not given or provision not made, with resulting detriment to his level of educational attainment and employability; and (3) that this damage is not too remote I do not regard the claim for damage to be necessarily bad.’
Evans LJ: ‘In my judgment for the reasons given at the outset, the failure to treat or the delayed treatment of dyslexia does arguably give rise to a form of injury which can support a claim for damages for negligence in tort.’

Judges:

Sir Thomas Bingham MR, Evans LJ

Citations:

[1995] 2 AC 633

Jurisdiction:

England and Wales

Cited by:

Cited – Carson and Reynolds v Secretary of State for Work and Pensions CA 17-Jun-2003
The claimant Reynolds challenged the differential treatment by age of jobseeker’s allowance. Carson complained that as a foreign resident pensioner, her benefits had not been uprated. The questions in each case were whether the benefit affected a . .
Cited – Equitable Life Assurance Society v Ernst and Young CA 25-Jul-2003
The claimant sought damages from its accountants, saying that had they been advised of the difficulties in their financial situation, they would have been able to avoid the loss of some 2.5 billion pounds, or to sell their assets at a time when . .
Cited – Howe and Co v Burden QBD 11-Feb-2004
Defence of consent – no strike out. The precise ambit of the defence of consent in a defamation case is best established at trial on the basis of the tribunal’s findings of fact. . .
Cited – Skipper v Calderdale Metropolitan Borough Council and Governors of Crossley Heath School CA 15-Mar-2006
The claimant sought damages alleging that the defendants had failed her by not identifying and ameliorating her dyslexia whilst she was a student. The judge had found that she might establish negligence but that she had not established any loss. She . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 December 2022; Ref: scu.184852

Armagas Ltd v Mundogas SA (‘The Ocean Frost’): CA 1985

Proof of corruption not needed for bribe

In establishing that money was paid as an improper inducement or bribe, proof of corruptness or a corrupt motive was unnecessary.
When a court looks at a decision of a judge at first instance, the court stressed the need to look at the objective facts and the overall probabilities.
Held: Mundogas was not vicariously liable for Mr. Magelssen’s deceit.
Goff LJ said: ‘Speaking from my own experience I have found it essential in cases of fraud when considering the credibility of witnesses always to test their veracity by reference to objective facts proved independently of their testimony, in particular by reference to the documents in the case and also to pay a particular regard to their motives and to the overall probabilities. It is frequently very difficult to tell whether a witness is telling the truth or not; and where there is a conflict of evidence . . Furthermore it is implicit in the statement of Lord MacMillan in Powell v. Streatham Manor Nursing Home at p. 256 that the probabilities and possibilities of the case may be such as to impel an appellate Court to depart from the opinion of the trial Judge formed upon his assessment of witnesses whom he has seen and heard in the witness box. Speaking from my own experience, I have found it essential in cases of fraud when considering the credibility of witnesses, always to test their veracity by reference to the objective facts proved independently of their testimony, in particular by reference to the documents, to the witnesses’ motives and to the overall probabilities can be of very great assistance to a judge in ascertaining the truth. I have been driven to the conclusion that the Judge did not pay sufficient regard to these matters in making his findings of fact in the present case.’
On the facts as found and ‘the effect of the judge’s conclusion was that, although Mr. Magelssen did not have ostensible authority to enter into the contract, he did have ostensible authority to tell Mr. Jensen and Mr. Dannesboe that he had obtained actual authority to do so. This is, on its face, a most surprising conclusion. It results in an extraordinary distinction between (1) a case where an agent, having no ostensible authority to enter into a relevant contract, wrongly asserts that he is invested with actual authority to do so, in which event the principal is not bound; and (2) a case where an agent, having no ostensible authority, wrongly asserts after negotiations that he has gone back to his principal and obtained actual authority, in which event the principal is bound. As a matter of common sense, this is most unlikely to be the law.’

Judges:

Goff LJ, Staughton J, Dunn J

Citations:

[1985] 1 Lloyd’s Rep 1, [1985] 1 WLR 640

Jurisdiction:

England and Wales

Citing:

Cited – Hovenden and Sons v Millhoff 1900
Romer LJ said: ‘The courts of law in this country have always strongly condemned and, when they could, punished the bribing of agents, and have taken a strong view as to what constitutes a bribe. I believe the mercantile community as a whole . .
Cited – Industries and General Mortgage Co Ltd v Lewis 1949
When arranging with the plaintiff company to obtain a loan for the defendant V stipulated that he should be paid half the procuration fee which the defendant would be charged for the company’s services. The company knew that V was to receive from . .
Adopted – Watt (or Thomas) v Thomas HL 1947
When Scots Appellate Court may set decision aside
The House considered when it was appropriate for an appellate court in Scotland to set aside the judgment at first instance.
Lord Thankerton said: ‘(1) Where a question of fact has been tried by a judge without a jury, and there is no question . .

Cited by:

Cited – Dr Anya v University of Oxford and Another CA 22-Mar-2001
Discrimination – History of interactions relevant
When a tribunal considered whether the motive for an act was discriminatory, it should look not just at the act, but should make allowance for earlier acts which might throw more light on the act in question. The Tribunal should assess the totality . .
Adopted – Grace Shipping v CF Sharp and Co (Malaya) Pte Ltd PC 10-Dec-1986
(Singapore) When a court has to weigh the various and varying recollections of witnesses about what was said at meetings which occurred in the distant past, the surest guides are the contemporaneous documents and the overall probabilities.
Lord . .
Applied – Nina Naicker Gow v Dr Rosemary Harker CA 31-Jul-2003
The defendant had taken a blood sample. The claimant asserted that because the needle had been inserted incorrectly she had suffered damage to her wrist.
Held: Guidance from cases involving allegations of fraud could be relevant when assessing . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
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 . .
Appeal from – Armagas Ltd v Mundogas SA (‘The Ocean Frost’) HL 22-May-1985
Ostensible authority creates estoppel
Apparent authority as agent can arise where an employer by words or conduct has represented that his employee, who has purported to act on behalf of the employer, is authorised to do what he is purporting to do. Ostensible authority depends on a . .
Cited – Flannery and Another v Halifax Estate Agencies Ltd, Trading As Colleys Professional Services CA 18-Feb-1999
A judge at first instance taking a view on an expert’s report should give reasons in his judgment for that view. On appeal, where no reasons had been given, he should be asked to provide reasons by affidavit for the appeal. An inadequately reasoned . .
Cited – Fen and others v D’Cruz and others CA 13-Mar-2007
The parties disputed whether the first defendant had been held out to be a partner in the second defendant’s firm of solicitors. The first defendant had later absonded. Appeal dismissed. . .
Cited – In Re Selectmove Ltd CA 21-Dec-1993
Promisse to Pay Tax due is not Consideration
The company appealed against an order for its winding up, saying that the debt was disputed, an accomodation having been reached with the Revenue.
Held: The court declined to regard a promise to the Revenue by a company to pay its existing . .
Cited – 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 . .
Applied – Goodman v Faber Prest Steel CA 5-Mar-2013
The defendant appealed against the award of damages after being found liable for injuries caused in a road traffic accident. They disputed whether the injuries now complained of were the result of the accident.
Held: the appeal succeed and the . .
Cited – Nuttal and Another v Kerr and Another QBD 25-Jul-2019
The defendant sought to appeal from a judgment given only after a long delay.
Held: Permission to appeal was necessary, and given, but the appeal itself failed: ‘(1) There is no evidence of fault of the Judge at any or any material point other . .
Lists of cited by and citing cases may be incomplete.

Evidence, Torts – Other, Agency

Updated: 12 December 2022; Ref: scu.183409

Ezekiel v McDade: CA 1995

As a result of the negligence of their builders, the plaintiffs were rendered homeless persons living in single room council accommodation for a long period. The builder appealed an award of andpound;6,000.
Held: The award should be reduced to andpound;4,000 for general damages for physical inconvenience and discomfort caused by the defendants’ negligence and for mental suffering directly related to it.

Citations:

[1995] 47 EG 150

Jurisdiction:

England and Wales

Citing:

Cited – Watts and Co v Morrow CA 30-Jul-1991
The plaintiff had bought a house on the faith of the defendant’s report that there were only limited defects requiring repair. In fact the defects were much more extensive. The defendant surveyor appealed against an award of damages after his . .

Cited by:

Distinguished – Boynton and Another v Willers CA 3-Jul-2003
The appellants challenged a finding that they were liable for their builders’ bill.
Held: Work which had been rejected had not in fact been charged for. The defendant’s appeal on that point failed. The measure of damages for distress and . .
Lists of cited by and citing cases may be incomplete.

Damages, Construction

Updated: 12 December 2022; Ref: scu.184246

The Ikarian Reefer: CA 1995

The court reversed the decision of the trial judge that the plaintiff insured shipowners had not deliberately scuttled their vessel or cast her away: ‘(1) The burden of showing that the trial Judge was wrong lies on the appellant . . (2) When questions of the credibility of witnesses who have given oral evidence arise the appellant must establish that the trial Judge was plainly wrong. Once again there is a long line of authority emphasizing the restricted nature of the Court of Appeal’s power to interfere with a Judge’s decision in these circumstances though in describing that power different expressions have been used.’

Judges:

Stuart-Smith LJ

Citations:

[1995] Lloyd’s Rep 455

Jurisdiction:

England and Wales

Citing:

Cited – Mersey Docks and Harbour Board v Proctor HL 1923
Viscount Cave LC said: ‘In such a case . . it is the duty of the Court of Appeal to make up its own mind not disregarding the judgment appealed from and giving special weight to that judgment in cases where the credibility of witnesses comes into . .
Cited – SS Hontestroom v SS Sagaporack HL 1927
The court discussed the weight to be given by an appellate court to findings of fact made by the court of first instance.
Held: Not to have seen the witnesses puts appellate judges in a permanent position of disadvantage as against the trial . .
Cited – Glasier v Rolb 1889
A finding by a judge that a party is innocent of fraud should only reluctantly be disturbed. . .
Cited – Akerhielm v De Mare PC 1959
A company prospectus contained the following: ‘About a third of the capital has already been subscribed in Denmark.’ Though the directors believed this to be true, it was not true at the time the prospectus was issued.
Held: The statement was . .
See Also – National Justice Compania Naviera S A v Prudential Assurance Company Ltd (‘The Ikarian Reefer’) 1993
Cresswell J spoke of the nature of the duty owed by expert witnesses: ‘The duties and responsibilities of expert witnesses in civil cases include the following:

1. Expert evidence presented to the Court should be, and should be seen to be, the . .

Cited by:

Cited – Assicurazioni Generali Spa v Arab Insurance Group (BSC) CA 13-Nov-2002
Rehearing/Review – Little Difference on Appeal
The appellant asked the Court to reverse a decision on the facts reached in the lower court.
Held: The appeal failed (Majority decision). The court’s approach should be the same whether the case was dealt with as a rehearing or as a review. . .
Cited – Niru Battery Manufacturing Company, Bank Sepah Iran v Milestone Trading Limited CA 23-Oct-2003
The claimant had contracted to purchase lead from some of the defendants. There were delays in payment but when funds were made available they should have been repaid. An incorrect bill of lading was presented. The bill certified that the goods had . .
Cited – Six Continents Hotels Inc v Event Hotels Gmbh QBD 21-Sep-2006
The claimant had licensed the defendant to use its trademarks in connection with the naming of their hotels in Germany. The defendants failed to pay their fees as agreed, the claimants terminated the license and now sought payment under the . .
Cited – Kastor Navigation Co Ltd and Another v AGF M A T and others (‘Kastor Too’) ComC 4-Dec-2002
The claimant ship owner and its mortgagee sued the defendant insurer after the loss of the insured vessel, through fire. The insurers replied that the damage by fire was so extensive that the vessel was beyond repair when she sank, and was therefore . .
See Also – Comninos v Prudential Assurance Company Ltd (The Ikarian Reefer no 2) CA 12-Oct-1999
Mr Comninos challenged the jurisdiction of the court to have made an order for costs made against him. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 12 December 2022; Ref: scu.187256

Cadogan v McGirk: CA 25 Apr 1996

The court considered whether the 1993 Act should be construed as expropriatory legislation and therefore was to be read strictly.
Held: The Court rejected the submission that the relevant provisions must be strictly construed because the 1993 Act was expropriatory in nature.
Millet LJ said: ‘It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord’s interest, nevertheless it was passed for the benefit of tenants. It is the duty of the court to construe the Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which parliament must have intended them to enjoy.’ and (obiter)
‘[The expression ‘the terms of the lease’ would ordinarily refer to the covenants and conditions of the lease rather than the extent of the demise. But s 57 (1) provides for the terms of the existing lease to be modified (inter alia) to exclude from the new lease property included in the existing lease but not forming part of the flat. This is an indication that the expression ‘terms of the existing lease’ may need to be given a wider interpretation than would be usual’.
Millett LJ said of the 1993 Act: ‘It would, in my opinion, be wrong to disregard the fact that, while the Act may to some extent be regarded as expropriatory of the landlord’s interest, nevertheless it was passed for the benefit of tenants. It is the duty of the court to construe the 1993 Act fairly and with a view, if possible, to making it effective to confer on tenants those advantages which Parliament must have intended them to enjoy.’

Judges:

Millet LJ, Waite LJ, Thorpe LJ

Citations:

[1996] 2 EGLR 75, [1996] 4 All ER 643, [1996] EWCA Civ 1340, [1996] 39 EG 175, (1996) 72 P and CR D47, [1996] NPC 65, (1997) 29 HLR 294

Links:

Bailii

Statutes:

Leasehold Reform Act 1967, Leasehold Reform, Housing and Urban Development Act 1993

Jurisdiction:

England and Wales

Citing:

Cited – Methuen-Campbell v Walters CA 1978
The curtilage of a house is narrowly confined to the area surrounding it and did not extend to a paddock. Buckley LJ said: ‘In my judgment, for one corporeal hereditament to fall within the curtilage of another, the former must be so intimately . .
Cited – Jones v Wrotham Park Settled Estates HL 1979
An attempt to determine the meaning of an enactment should not cross the boundary between construction and legislation: ‘My Lords, I am not reluctant to adopt a purposive construction where to apply the literal meaning of the legislative language . .
Cited – Manson v Duke of Westminster CA 1981
CS Stephenson LJ said: ‘I would . . regard the expropriatory nature of the 1967 Act as of little weight in construing its provisions . .’ . .

Cited by:

Cited – Malekshad v Howard De Walden Estates Limited CA 23-May-2001
The applicant sought the leasehold enfranchisement of two leasehold properties. They were contained in separate leases, but the property had been treated as one for some time. A part of one property extended under part of the other. The claim was . .
Cited – Richmond Housing Partnership Ltd v Brick Farm Management Ltd QBD 28-Jul-2005
The claimants were tenants of a charitable housing association, and sought the enfranchisement of their leasehold properties. The landlord appealed a declaration that the tenants were so entitled, saying that each of the tenants was excluded from . .
Cited – Cadogan and others v 26 Cadogan Square Ltd, Howard de Walden Estates Limited v Aggio and others HL 25-Jun-2008
In each case all or part of a building was let by a head-lease and then as self-contained units under sub-leases. The head lessees had served notices under the 1993 Act requiring new leases. The freeholder denied that they were qualifying tenants, . .
Cited – Day and Another v Hosebay Ltd SC 10-Oct-2012
The Court considered the provisions for leasehold enfranchisement now that the residence requirement had been removed by the 2002 Act, and in particular the extent to which, at all, it had allowed enfranchisement to be available to commercial . .
Cited – Cadogan v Panagopoulos and Another ChD 15-Mar-2010
‘This case concerns the proper interpretation of certain provisions of that [1993 Act] regime when after a claim to collective enfranchisement has been made and registered, the freeholder grants a 999 year lease of a part of the premises. In a . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 12 December 2022; Ref: scu.192027

In re Saul D Harrison and Sons plc: CA 1995

The ‘legitimate expectations’ of a party were a label for the ‘correlative right’ to which a relationship between company members may give rise when, on equitable principles, it would be regarded as unfair for a majority to exercise a power conferred upon them by the articles to the prejudice of another member. Depriving a shareholder of his legitimate expectation of involvement in the company can be sufficient to amount to unfair conduct prejudicial to the shareholder. Conduct might be technically unlawful without being unfair and also unfair without being technically unlawful.
Neill LJ said: ‘For the purpose of determining the legal rights of the petitioner one turns to the memorandum and articles of the company because the articles constitute the contract between the company and the member in respect of his rights and liabilities as a shareholder. Furthermore, it is to be remembered that the management of a company is entrusted to the directors, who have to exercise their powers in the interests of the company as a whole. A shareholder can legitimately complain, however, if the directors exceed the powers vested in them or exercise their powers for some illegitimate or ulterior purpose.’ and
‘The [relevant] conduct must be both prejudicial (in the sense of causing prejudice or harm to the relevant interest) and also unfairly so: conduct may be unfair without being prejudicial or prejudicial without being unfair, and it is not sufficient if the conduct satisfies only one of these tests . . On the facts of this case, the court decided that the petitioners did not show that they had suffered any unfair prejudice by reason of the breaches of duty by the directors. In the same vein, the presence or absence of loss is a significant factor to be taken into account in relation to the alleged breaches of the Agreement.’
Hofmann LJ said: ”Unfairly prejudicial’ is deliberately imprecise language which was chosen by Parliament because its earlier attempt in s 210 of the Companies Act 1948 to provide a similar remedy had been too restrictively construed. The earlier section had used the word ‘oppressive’, which the House of Lords in Scottish Co-op Wholesale Society Ltd v Meyer [1958] 3 All ER 66, [1959] AC 324, [1958] 3 WLR 404 said meant ‘burdensome, harsh and wrongful’. This gave rise to some uncertainty as to whether ‘wrongful’ required actual illegality or invasion of legal rights. The Jenkins Committee on Company Law, which reported in 1962, thought that it should not. To make this clear, it recommended the use of the term ‘unfairly prejudicial’, which Parliament somewhat tardily adopted in s 75 of the Companies Act 1980. This section is reproduced (with minor amendment) in the present s 459 of the Companies Act 1985.’ It is now further reproduced in section 994.’ and ‘In deciding what is fair or unfair for the purposes of s.459, it is important to have in mind that fairness is being used in the context of a commercial relationship. The articles of association are just what their name implies: the contractual terms which govern the relationship of the shareholders with the company and each other. They determine the powers of the board and the company in general meeting and everyone who becomes a member of a company is taken to have agreed to them. Since keeping promises and honouring agreements is probably the most important element of commercial fairness, the starting point in any case under s.459 will be to ask whether the conduct of which the shareholder complains was in accordance with the articles of association.’

Judges:

Hofmann LJ, Neill LJ

Citations:

[1995] 1 BCLC 14

Statutes:

Companies Act 1985 459

Jurisdiction:

England and Wales

Cited by:

Cited – O’Neill and Another v Phillips and Others; In re a Company (No 00709 of 1992) HL 20-May-1999
The House considered a petition by a holder of 25 of the 100 issued shares in the company against the majority shareholder. The petitioner, an ex-employee, had been taken into management and then given his shares and permitted to take 50% of the . .
Cited – Arrow Nominees Inc and Another v Blackledge and Others CA 22-Jun-2000
A petition had been lodged alleging unfair prejudice in the conduct of the company’s affairs. The defendants alleged that when applying for relief under section 459, the claimants had attempted to pervert the course of justice by producing forged or . .
Cited – Kohli v Lit and Others ChD 13-Nov-2009
The claimant asserted that the other shareholders had acted in a manner unfairly prejudicial to her within the company.
Held: The claimant was allowed to bring in without prejudice correspondence to contradict evidence by the defendant which . .
Cited – Re BSB Holdings Ltd; London Merchant Securities Plc v Chargeurs Sa and Others ChD 2-Aug-1995
Protection of minority shareholders was not to be used to impede the proper management of a company’s affairs. Directors must act in the company’s overall best interests despite prejudice to one class of shareholders.
Arden J said: ‘However, in . .
Lists of cited by and citing cases may be incomplete.

Company

Updated: 12 December 2022; Ref: scu.183152

In re W (Wardship: Discharge: Publicity): CA 1995

Four wards of court aged between nine and 14 had given an interview to a newspaper reporter, who plainly knew that they were wards of court, in circumstances which clearly troubled both the Official Solicitor, their guardian ad litem, who immediately applied for injunctions to restrain any repetition.
Held: The views about the courts system of the mothers and fathers caught up in it, are: ‘matters of public interest which can and should be discussed publicly’. Injunctions were refused.
Balcombe LJ commented: ‘I accept that the representation of children in family proceedings, and the role of the Official Solicitor, are matters of public interest which can and should be discussed publicly. I also accept that a boy of 15 may be sufficiently mature to be able to speak directly to, and be interviewed by, representatives of the press or broadcasting media. However, there can be no public interest in identifying members of his family: that would be only public curiosity.
Further, the three younger boys are unlikely to be of sufficient intellectual or emotional maturity to appreciate the dangers inherent in becoming involved in media publicity. In my judgment, a proper balance between these conflicting considerations can be achieved by amending the order of 19th May 1994.’

Judges:

Balcombe, Waite LJJ

Citations:

[1995] 2 FLR 466

Jurisdiction:

England and Wales

Cited by:

Cited – Kent County Council v The Mother, The Father, B (By Her Children’s Guardian); Re B (A Child) (Disclosure) FD 19-Mar-2004
The council had taken the applicant’s children into care alleging that the mother had harmed them. In the light of the subsequent cases casting doubt on such findings, the mother sought the return of her children. She applied now that the hearings . .
Cited – Norfolk County Council v Webster and others FD 1-Nov-2006
The claimants wished to claim that they were victims of a miscarriage of justice in the way the Council had dealt with care proceedings. They sought that the proceedings should be reported without the children being identified.
Held: A judge . .
Cited – Doctor A and Others v Ward and Another FD 8-Jan-2010
Parents wished to publicise the way care proceedings had been handled, naming the doctors, social workers and experts some of whom had been criticised. Their names had been shown as initials so far, and interim contra mundum orders had been made . .
Cited – Kelly (A Minor) v British Broadcasting Corporation FD 25-Jul-2000
K, aged 16, had left home to join what was said to be a religious sect. His whereabouts were unknown. He had been made a ward of court and the Official Solicitor was appointed to represent his interests. He had sent messages to say that he was well . .
Cited – Re A Ward of Court FD 4-May-2017
Ward has no extra privilege from Police Interview
The court considered the need to apply to court in respect of the care of a ward of the court when the Security services needed to investigate possible terrorist involvement of her and of her contacts. Application was made for a declaration as to . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 12 December 2022; Ref: scu.194859

Castle Phillips Finance v Piddington: CA 1995

The wife charged the matrimonial home to Lloyds to secure the husband’s indebtedness. The husband subsequently agreed with Barclays for the indebtedness to be refinanced. The husband and an accomplice forged her signature on a transfer of the matrimonial home into joint names and on a remortgage. When Barclays pressed for repayment, the husband applied to the claimant, which agreed to make a loan. The claimants’ loan was applied in paying off the husband’s indebtedness to Barclays, including that part of Barclays’ indebtedness which arose from its having paid off Lloyds. The husband defaulted in repaying the claimant’s loan, and the claimant commenced proceedings against the husband and the wife claiming possession of the matrimonial home on the basis that it was entitled to be subrogated to Barclays. The judge held that Barclays was entitled by subrogation to the Lloyds charge and that the wife was bound in respect of so much of the secured indebtedness under the Barclays charge as derived from the payment by Barclays to discharge the Lloyds charge. She appealed, saying the conditions for subrogation were not satisfied. The claimant contended that it was entitled to be subrogated to the Lloyds charge in respect of the sum paid to Barclays out of the claimant’s loan. Counsel for the claimant submitted that, under the principle of subrogation, the claimant was entitled to step into the shoes of Barclays, which (to the extent of andpound;4735.39) was in turn entitled to step into the shoes of Lloyds and thus to enforce the Lloyds charge.
Held: That submission was accepted. Subrogation ’embraces more than a single concept in English law’. ‘I do not think it is open to this court to reinterpret the Butler v. Rice line of authorities in the way which [counsel for the wife] would have us do in the light of the approval of the broad principle laid down in such cases and approved in decisions binding on us. I feel it right to add that for my part, given that the court in a case like the present is having to choose between allocating a loss, either to the innocent mortgagor or to the innocent provider of the moneys, I do not regard it as unjust that in accordance with Butler v. Rice the loss should fall on the mortgagor who otherwise takes a windfall benefit. I say that despite the fact that, as [counsel for the wife] rightly stressed, the wife in the present case had no contract with [the claimant], was not the principal debtor, knew nothing of the transaction under which [the claimant] lent money to the husband and has never ratified the discharge of the mortgage on the property. [Counsel for the wife] also advanced the further argument that it would be an unwarranted extension of the Butler v. Rice principle if [the claimant] were to be held entitled to step into the shoes of Lloyds by what he called sub-subrogation. For my part, I see no conceptual difficulty in this. As the judge held, Barclays was entitled to the Lloyds security by subrogation when Barclays discharged the debt to Lloyds, thinking that it was to obtain an effective security for its own money. When [the claimant] discharged the debt to Barclays, thinking that it was obtaining an effective security for its own money, it became entitled to the same security as Barclays [had]. I would, therefore, hold that by subrogation [the claimant] became entitled to the same security as that held by Barclays, [that] is to say the Lloyds charge.’ The court rejected the argument advanced on behalf of the claimant based on imputed consent on the part of the wife.

Judges:

Sir John May, McCowan LJ, McCowan LJ

Citations:

[1995] 1 FLR 783

Jurisdiction:

England and Wales

Citing:

Cited – Butler v Rice 1910
The wife owned a Bristol property and a Cardiff property subject to a andpound;450 charge in favour of a bank with whom the title deeds had been deposited. The husband asked the plaintiff to lend him andpound;450 to pay off the mortgage. The . .
Cited – Equity and Law Home Loans Ltd v Prestidge CA 1992
A house was bought in the name of one partner in an unmarried couple. It was subject to a mortgage, and the non-owner contributed a capital sum. The landowner later remortgaged for a larger sum, but without the partner’s consent. The landowner then . .
Cited – Orakpo v Manson Investments Ltd HL 1977
Transactions were entered into under which loans were made to enable the borrower to acquire and develop certain properties were held to be unenforceable under the 1927 Act. The effect was to enrich the borrower, who had fallen into arrears of . .

Cited by:

Cited – UCB Group Ltd v Hedworth CA 4-Dec-2003
The defendant challenged the claimant’s right to possession under a legal charge. She appealed a finding that she had not established the undue influence of her husband, a solicitor.
Held: A lender who received a voidable security was entitled . .
Lists of cited by and citing cases may be incomplete.

Land, Equity

Updated: 12 December 2022; Ref: scu.190506

Pennell v Payne: CA 1995

The operation of the break clause in a lease will (in the absence of provision to the contrary) have the effect of terminating not just the lease but also the underlease, and any inferior sub-tenancies.

Judges:

Lord Justice Simon Brown’s

Citations:

[1995] QB 192, [1995] 1 EGLR 6

Jurisdiction:

England and Wales

Citing:

Overruled – Gravesham Borough Council v Secretary of State for the Environment QBD 1982
The Secretary of State could find that a building built under a permission for a weekend and holiday chalet, but to be used only in summer, was a dwelling house. The distinctive characteristic of a dwellinghouse is its ability to afford to those who . .

Cited by:

Approved – Barrett and others v Morgan HL 27-Jan-2000
The landlord served a notice to quit on the head tenant under an understanding that the head tenant would not serve a counter notice. The effect was to determine the head and sub-tenancy. It acted as a notice to quit, and despite the consensual . .
Cited – JIS (1974) Ltd v MCP Investment Nominees I Ltd CA 9-Apr-2003
The parties agreed for a lease to be granted of a new building. Part had been intended to be excluded for shops, but permission was not obtained, the shops area was included and leased back. When the tenants sought to determine the lease, the . .
Applied – PW and Co v Milton Gate Investments Ltd (BT Property Ltd and another, Part 20 defendants) ChD 8-Aug-2003
The parties, head lessor and sub-lessess, had assumed that following Brown -v- Wilson the sub-lease would continue upon the determination of the head lease, and had overlooked Pennell which overruled Brown v Wilson. However the lease made express . .
Cited – Barrett and Others v Morgan CA 30-Jun-1998
An artificial surrender of a head lease with the sole intention of defeating a sub tenancy was not effective and the subtenant became head tenant in their stead. The collusion defeated the ruse. ‘It is unilateral notices to quit that destroy . .
Cited – Kay and Another v London Borough of Lambeth and others; Leeds City Council v Price and others and others HL 8-Mar-2006
In each case the local authority sought to recover possession of its own land. In the Lambeth case, they asserted this right as against an overstaying former tenant, and in the Leeds case as against gypsies. In each case the occupiers said that the . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 12 December 2022; Ref: scu.184538

Regina on Application of M v Criminal Injuries Compensation Appeals Panel: Admn 31 Aug 2001

The complainant had suffered repeated acts of sexual abuse as a child including acts of penetration. She sought compensation under the scheme, but was initially refused on the basis that it was not a crime of violence, then later awarded pounds 2,000. Later again, the Panel agreed to make a payment but reduced it because of her convictions, back to the same amount. She complained that the decision was insufficiently detailed to allow analysis. She wanted proper sufficient and intelligible reasons.
Held: The panel had failed to give such reasons in three respects, and the decision was quashed.

Judges:

Mr Justice Hooper

Citations:

[2001] EWHC Admin 720

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Criminal Injuries Compensation Board Ex Parte Cook CA 22-Dec-1995
Where the board was refusing an application, it need not set out every matter which it had taken into account. . .
Cited – Re Poyser and Mills’ Arbitration 1963
The section at issue imposed a duty upon a tribunal to which the Act applies or any minister who makes a decision after the holding of a statutory inquiry to give reasons for their decision, if requested. A record of the reasons for a decision must . .
Cited – Regina v Criminal Injuries Compensation Authority, Ex Parte Leatherland; similar QBD 12-Oct-2000
The practice of withholding the reasons for a decision until the day of an appeal which had come to be adopted was unfair and bad administration. The Tribunal should give proper reasons for its decision, together with the gist of any evidence which . .
Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 12 December 2022; Ref: scu.166588

Regina v O’Loughlin and McLoughlin: 1988

Citations:

[1988] 2 All E R 431

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v KJ Martin CACD 20-Feb-2003
The defendant had been found unfit to plead on a charge of murder. Charges against the co-defendants were later reduced to inflicting grievous bodily harm, but when the defendant came to be dealt with, it was on the basis that the charge remained . .
Lists of cited by and citing cases may be incomplete.

Crime

Updated: 12 December 2022; Ref: scu.179530

Kaufring v Commission T-293/97 (Customs Union): ECJ 10 May 2001

E J Action for annulment – Importation of television sets from Turkey – EEC-Turkey Association Agreement – Article 3(1) of the Additional Protocol – Compensatory levy – Article 13(1) of Regulation (EEC) No 1430/79 – Remission of import duty not justified – Rights of the defence

Citations:

T-293/97, [2001] EUECJ T-293/97

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 12 December 2022; Ref: scu.213980

CIN Properties Ltd v Rawlins: CA 1995

Young men were barred from a shopping centre. The private company owner considered that their behaviour was a nuisance.
Held: The owner had the right to determine any licence which the applicants might have had to enter the Centre. The local authority had not entered into any walkways agreement with the company which would have dedicated the walkways or footpaths as public rights of way, and which would have given the local council the power to issue bye-laws regulating use of those rights of way. Nor was there any basis for finding an equitable licence.

Judges:

Lord Phillips

Citations:

[1995] 2 EGLR 130

Statutes:

Highways Act 1971 18(1), Highways Act 1980 35

Jurisdiction:

England and Wales

Cited by:

Cited – Appleby and Others v The United Kingdom ECHR 6-May-2003
The claimants sought to demonstrate against a development in their home town. The respondents who owned the shopping mall which dominated the town centre, refused to allow them to demonstrate in the mall or to distribute protesting leaflets. The . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 12 December 2022; Ref: scu.182210

Regina v Russell-Jones: CACD 1995

The Crown cannot be required to adduce evidence which (or to tender for cross-examination a witness whose evidence) is not capable of belief: ‘. . . the prosecution ought normally to call or offer to call all the witnesses who give direct evidence of the primary facts of the case, unless for good reason, in any instance, the prosecutor regards the witness’s evidence as unworthy of belief. In most cases the jury should have available all of that evidence as to what actually happened, which the prosecution, when serving statements, considered to be material, even if there are inconsistencies between one witness and another. The defence cannot always be expected to call for themselves witnesses of the primary facts whom the prosecution has discarded. For example, the evidence they may give, albeit at variance with other evidence called by the Crown, may well be detrimental to the defence case. If what a witness of the primary facts has to say is properly regarded by the prosecution as being incapable of belief, or as some of the authorities say ‘incredible’, then his evidence cannot help the jury assess the overall picture of the crucial events; hence, it is not unfair that he should not be called . . .
The prosecutor is also, as we have said, the primary judge of whether or not a witness to the material events is incredible, or unworthy of belief. It goes without saying that he could not properly condemn a witness as incredible merely because, for example, he gives an account at variance with that of a larger number of witnesses, and one which is less favourable to the prosecution case than that of the others.
A prosecutor properly exercising his discretion will not therefore be obliged to proffer a witness merely in order to give the defence material with which to attack the credit of other witnesses on whom the Crown relies. To hold otherwise would, in truth, be to assert that the prosecution are obliged to call a witness for no purpose other than to assist the defence in its endeavour to destroy the Crown’s own case. No sensible rule of justice could require such a stance to be taken.’

Judges:

Kennedy LJ

Citations:

[1995] 1 CAR 538, [1995] 3 All ER 239

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v W (Reference Under Section 36 of the Criminal Justice Act 1972) CACD 8-May-2003
The allegation was of a serious assault on the defendant’s wife. The prosecution considered she would not be a reliable witness, and did not call her. Other evidence being inadmissible, the defendant was acquitted. The AG appealed.
Held: There . .
Cited – Regina v Mills, Regina v Poole HL 24-Jul-1997
The prosecution have a duty to disclose to the defence the statement of an adverse witness and not just to provide the name and address, even though that person was not seen as credible witness by the prosecution. ‘the rule in Bryant and Dickson is . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Regina v Cairns; Regina v Zaldi, Regina v Chaudary CACD 22-Nov-2002
The defendants applied for the defence statements of co-defendants to be disclosed. A co-defendant was to give evidence for the Crown, and they sought to have it excluded as unreliable.
Held: The 1996 Act created a duty of secondary . .
Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Updated: 12 December 2022; Ref: scu.181981

Equitable Life Assurance Society v Ernst and Young (A Firm): ComC 10 Feb 2003

The company complained that its auditors had failed to give appropriate warning of the Society’s exposure to risk in awarding larger bonuses than were justified, and that had the true position been known, it xould have put itself up for sale earlier, reducing later substantial losses. The defendant sought to strike out the claims.
Held: The defendant had a statutory duty as company auditor under the Act, the range of which was set out in the South Australia case, and Caparo. The extent should not be restricted below what the client could properly expect, nor extend the duty beyond that expected by the adviser. The auditors duties did include advice as to the values available to support payment of bonuses, but not as to a potential sale. The claimant was given an opportunity to amend its bonus claims.
Duty of care – auditors failing to advise on provision for liabilities to policyholders guaranteed fixed level of income – not liable for losses sustained by directors failing to sell business sooner owing to contingent liabilities but potentially liable for losses caused by payment of overlarge bonuses in reliance on audited accounts

Citations:

Times 24-Feb-2003, [2003] EWHC 112 (Comm), Gazette 03-Apr-2003

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – South Australia Asset Management Corporation v York Montague Ltd etc HL 24-Jun-1996
Limits of Damages for Negligent Valuations
Damages for negligent valuations are limited to the foreseeable consequences of advice, and do not include losses arising from a general fall in values. Valuation is seldom an exact science, and within a band of figures valuers may differ without . .
Cited – Coulthard, Ashton Shuttleworth, and Dawes v Neville Russell (a Firm) CA 27-Nov-1997
Auditors who were in a position to advise a company’s directors as to the legality of them making loan payments to a shell company which was acquiring there shares had a duty so to advise. The directors of a company sued them for failing to warn . .
Cited – Galoo Ltd and Others v Bright Grahame Murray CA 21-Dec-1993
It is for the Court to decide whether the breach of duty was the cause of a loss or simply the occasion for it by the application of common sense. A breach of contract, to found recovery, must be shown to have been ‘an ‘effective’ or ‘dominant’ . .
Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 December 2022; Ref: scu.179107

Patrick Delbar v Caisse D’Allocations Familiales De Roubaix-Tourcoing: ECJ 5 Dec 1989

ECJ Since it relates only to employed persons, Article 51 of the Treaty does not require a Member State on whose territory a self-employed person works to pay family allowances within the meaning of Article 1(u)(ii ) of Regulation No 1408/71 if the members of the person’ s family reside in another Member State.
However, with effect from 15 January 1986, in accordance with Article 73 of Regulation No 1408/71 as amended by Regulation No 3427/89, a self-employed person subject to the legislation of a Member State is entitled, in respect of members of his family who are residing in another Member State, to the family benefits provided for by the legislation of the former State, as if they were residing in that State .

Citations:

R-114/88, [1989] EUECJ R-114/88

Links:

Bailii

Jurisdiction:

European

European

Updated: 12 December 2022; Ref: scu.215742

Ex parte Crook: CA 1995

A criminal court trying parents for the manslaughter of one child and cruelty to three others had made an order under section 39 prohibiting the identification of the surviving children. The judge expressed the view that identifying the parents or the dead child would lead to the identification of the surviving children. Two journalists appealed.
Held: ‘We entirely agree . . . that as a general proposition there is a strong and proper public interest in knowing the identity of those who have committed crimes, particularly serious and detestable crimes. If, as the appellants suggest, there is a growing tendency for the court to use or misuse their powers to prevent the disclosure of the identity of defendants or other persons concerned in criminal proceedings, we are as concerned as they to restrict such a tendency and to ensure that such orders are only made when they are justified.’ The court also pointed out that the media were free to take the risk and disregard the judge’s advice that identifying the parents or the dead child would be in breach of the order, although in practice what he had said was ‘obviously correct’. In making his order, the judge was required to weigh the interest in the full reporting of the crime, ‘including the identification of the defendants’, against the need to protect the victims from further harm. He was persuaded that the likely harm to the children outweighed the restrictions on freedom to publish. The Court of Appeal, dismissing the appeal, said that on the evidence before him the judge was clearly correct. Thus, while there is undoubtedly an importance public interest in the identification of defendants, in particular those found guilty of serious crimes, there are circumstances in which it can be outweighed by the need to protect their victims from further harm.

Judges:

Glidewell LJ

Citations:

[1995] 1 WLR 139

Jurisdiction:

England and Wales

Cited by:

Applied – Briffett v Director of Public Prosecutions; Bradshaw v Director of Public Prosecutions QBD 6-Nov-2001
A bare order restricting reporting under the section was too vague to allow a later prosecution for contempt. Crook had established that the court must specify just what restrictions are to apply. . .
Lists of cited by and citing cases may be incomplete.

Children, Media

Updated: 12 December 2022; Ref: scu.183131

Re S and D (Child Care Powers of the Court ): CA 1995

The court considered the powers of the court in care proceedings where it did not approve the authority’s proposed care plan. The judge had made supervision orders in relation to both children coupled with an injunction restraining the mother from removing the children from the foster home in which the local authority had placed them. The mother appealed against the making of the injunction, and local authority appealed against the judge’s refusal to make a care order. The judge had said: ‘I have to ask the question, what on earth are we to do where a local authority refuses to be persuaded by what, in my judgment, is absolutely overwhelming evidence to the effect that their plan is flawed? They have had ample opportunities to review their stance. It would have been no discredit to them at all had they decided to review the position in the light of what has been said. They have chosen not to.
I cannot make a care order. These two children in my judgment, cannot be allowed to remain in the care of their mother. That must be prevented if it can.’
Held: Both appeals were allowed. Balcombe LJ: ‘The Judge is therefore faced with the dilemma with which this Judge was faced that, if he makes a care order, the local authority may implement a care plan which he or she may take the view is not in the child or children’s best interests. On the other hand, if he makes no order, he may be leaving the child in the care of an irresponsible, and indeed wholly inappropriate parent.
It seems to me that, regrettable though it may seem, the only course he may take is to choose what he considers to be the lesser of two evils. If he has no other route open to him – and certainly the route chosen by the Judge in this case was one which, in my judgment, was not open to him – then that is the unfortunate position he has to face.
I have to say that this is not a position to which Judges who exercise jurisdiction in the family courts are unaccustomed. There is very rarely a right answer in relation to children – it is usually a case of trying to decide which is the less wrong one.
It is an unhappy position, where there is a dispute between all those whose professional duty it is to have the best interests of the children at heart, if they cannot reach agreement. But in those particular circumstances, as I see it, the Judge really has no alternative. He has to choose what he believes to be the lesser of two evils. That may be making a care order with the knowledge that the care plan is one which he does not approve, or it may be making no order with the consequences to which I have already adverted.’

Judges:

Balcombe LJ

Citations:

[1995] 1 FCR 626

Statutes:

Children Act 1989

Jurisdiction:

England and Wales

Cited by:

Cited – B (Minors) CA 27-Nov-1996
The case concerned applications for care orders. Four young girls would be separated from their elder sister and their mother, who sought interim contact. The judge disagreed with the care plan proposed by the local authority. His powers were, . .
Cited – Cheshire County Council and others v DS (Father) and others CA 15-Mar-2007
The court granted an appeal in care proceedings, but examined the relationship between the court and local authorities. There had been a late change in the proposed care plan and an application by grandparents to be made party. Some in the . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 12 December 2022; Ref: scu.182947

Zubaida v Hargreaves: CA 1995

In the general run of actions for negligence against professional men it is not enough to show that another expert would have given a different answer. The issue is whether the defendant acted in accordance with practices which are regarded as acceptable by a respectable body of opinion in his profession. Where the complaint relates to the figures included in a valuation, there is an earlier stage that the court must be taken through before the need arises to address considerations of the Bolam type. Because the valuer cannot be faulted in any event for achieving a result that does not admit of some degree of error, the first question is whether the valuation, as a figure, falls outside the range permitted to a non-negligent valuer

Judges:

Hoffman LJ

Citations:

[1995] 1 EGLR 127

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 – Singer and Friedlander Ltd v Wood 1977
Valuers acting competently and professionally may reach widely varying conclusions as to value. There is a permissible margin of error, the ‘bracket’. What can properly be expected from a competent valuer using reasonable care and skill is that his . .

Cited by:

Cited – Lloyds TSB Bank Plc v Edward Symmons and Partners TCC 12-Mar-2003
The defendants had carried out a survey and valuation for the claimants, who now sought damages alleging that the valuer had miscalculated the area of the premises, omitting certain areas which would affect the value.
Held: In order to make . .
Cited – Goldstein v Levy Gee ( A Firm) ChD 1-Jul-2003
There had been a dispute between shareholders, and the defendant was called upon to value the company. He issued a tender for valuers to value the properties. Complaint was made that the tender was negligent in its description of the basis for . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence

Updated: 12 December 2022; Ref: scu.182922

Hambleton District Council v Bird: CA 1995

The local authority sought an injunction to restrain the respondent Gypsies from use of land they owned, for residential caravans. The Gypsies had used the site, in breach of planning control, for a number of years. The judge had refused an injunction because of the personal circumstances of the respondents.
Held: The court considered the use of injunctions to support planning control. The power of the court in planning cases is supervisory, and its discretion as to the methods arises only on committal.

Judges:

Pill LJ

Citations:

[1995] 3 PLR 8

Statutes:

Local Government Act 1972 187B

Jurisdiction:

England and Wales

Citing:

Cited – Mole Valley District Council v Smith 1992
The local authority sought to use its powers under the Act to enforce planning control over gypsies. . .
Cited – Waverley Borough Council v Hilden 1988
The local authority sought to use its powers under the Act to enforce planning control over gypsies. . .
Lists of cited by and citing cases may be incomplete.

Planning, Local Government

Updated: 12 December 2022; Ref: scu.182492

Herring v Ministry of Defence: CA 10 Apr 2003

The claimant had suffered serious injury in a parachuting accident which deprived him of the opportunity of pursuing his chosen career in the police force. The judge found ‘to the extent of virtual certainty’ that he would have applied to join the police when the time was right, probably when he was aged 30, and that there was a strong likelihood that his application would have been successful. The claimant sought damages for personal injuries. The issue at appeal was how the future loss of earnings was to be calculated to allow for the anticipated career. The claimamt complained that the judge had applied too great a discount to the normal Ogden Tables.
Held: The court had to look to the most likely future career and earnings of the claimant. Where he was not yet in an established job, it might be possible to select an appropriate career model and apply an appropriate multiplicand. If not an average earnings figure could be applied. Where it was to be based upon a specified anticipated career, the chance of leaving that career might not be significant where he could expect similar remuneration elsewhere. Such assessments had not traditionally involved percentage calculations for loss of a chance based on the acts of third parties. Where a specified career was envisaged, the percentage reduction method would normally be inappropriate. It should not have been used here, and the reduction in the multiplier was itself reduced, increasing the award.

Judges:

Lord Justice Potter Lord Justice Tuckey Mr Justice Wall

Citations:

[2003] EWCA Civ 528, Times 11-Apr-2003, Gazette 19-Jun-2003, [2004] 1 All ER 44

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Allied Maples Group Ltd v Simmons and Simmons CA 12-May-1995
Lost chance claim – not mere speculative claim
Solicitors failed to advise the plaintiffs sufficiently in a property transaction. A warranty against liability for a former tenant’s obligations under leases had not been obtained. The trial judge held that, on a balance of probabilities, there was . .
Cited – Langford v Hebran and Another CA 15-Mar-2001
The claimant sought damages for the loss of his chances of pursuing his career as a kick-boxer. The judge considered four different courses of varying success which his career might have taken. He accepted that, whether or not those scenarios had . .
Cited – Doyle (By Her Mother and Next Friend) v Wallace CA 18-Jun-1998
A court awarding personal injury damages could make allowance for a prospective increase in salary which a claimant might have achieved upon completion of qualifications. In this case an increase was allowed at half up from an administrative pay . .

Cited by:

Cited – Dixon v Were QBD 26-Oct-2004
The claimant and others were being driven by the defendant. All had drunk, and none wore seat belts. The claimant sought damages for his injuries. General damages were agreed, and the issue was as to loss of future earnings.
Held: The claimant . .
Cited – Brown v Ministry of Defence CA 10-May-2006
Claim for injury suffered whilst training in Army. The claimant was committed to a career in the Army, and had anticipated promotion. She complained that her loss of pension rights had been calculated at a rate to reflect an average length career. . .
Lists of cited by and citing cases may be incomplete.

Damages, Personal Injury

Updated: 12 December 2022; Ref: scu.180706

Kaufring v Commission T-191/97 (Customs Union): ECJ 10 May 2001

ECJ Action for annulment – Importation of television sets from Turkey – EEC-Turkey Association Agreement – Article 3(1) of the Additional Protocol – Compensatory levy – Article 13(1) of Regulation (EEC) No 1430/79 – Remission of import duty not justified – Rights of the defence

Citations:

T-191/97, [2001] EUECJ T-191/97

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 12 December 2022; Ref: scu.213971

Deutsche Getreide Und Futtermittel-Handelsgesellschaft Mbh v Hauptzollamt Hamburg-Altona: ECJ 15 Dec 1970

ECJ 1. Levies are derived from the treaty and not from national law and are simultaneously applicable in all the member states; they act as regulators of the market within the framework of a common organization and are calculated on the basis of weighted values and having regard to standard qualities; they are therefore standard charges which do not take account of the individual characteristics of the products imported. Products of lower quality than the standard quality are therefore subject to the general levy in the same way as products of higher quality.
2. Products which have suffered damage before being imported and which have therefore lost some value may in spite of this loss in value affect the agricultural market in the same way as other products which were of a lower quality than the standard quality from the start and which are however subject to the general levy. The reasons why the condition of impaired goods is below the standard quality do not affect the grounds which justify the application of the general levy to them.

Citations:

R-31/70, [1970] EUECJ R-31/70

Links:

Bailii

Jurisdiction:

European

Agriculture

Updated: 12 December 2022; Ref: scu.214113

Hauptzollamt Hannover v Telefunken Fernseh Und Rundfunk Gmbh: ECJ 7 Oct 1985

ECJ 1. The fact that goods are intended, or are even specifically designed, to be used together and that they are presented for customs clearance together in the same package is not a sufficient reason for classifying them as a functional unit within the meaning of the customs cooperation council’s explanatory notes, if they can be used separately.
The functional unit principle is intended to allow classification under a given heading of machines and appliances made up of components falling under several tariff headings, in cases where those components as a whole are intended to perform the single clearly-defined function referred to in the tariff heading in question. The principle does not apply where some of the components making up a product may be used independently of the other components and for functions other than those which may be performed by all the components together.
2. The expression ‘goods put up in sets’ in general rule A3(b) implies that the goods are closely linked from the marketing point of view, with the result that they are not only presented together for customs clearance but are also normally supplied together, at the various marketing stages and in particular the retail stage, in a single package in order to satisfy a demand or to perform a specific function. General rule A3(b) applies only where goods are prima facie classifiable under two or more headings and classification is not possible under general rule A3(a), that is to say where there is no specific heading taking precedence over more general headings.
3. A combined tuner, record-player and cassette recorder imported together with two loudspeakers intended for use with it constitutes a set of goods falling under heading no 85.15 of the common customs tariff, where the goods concerned are put up in a single package and are intended to be marketed together in order to satisfy a specific demand.

Citations:

R-163/84, [1985] EUECJ R-163/84

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 12 December 2022; Ref: scu.215375

Schonheit v Stadt Frankfurt am Main; Becker v Land Hessen: ECJ 23 Oct 2003

ECJ Social policy – Equal pay for men and women – Applicability of Article 119 of the EC Treaty (Articles 117 to 120 of the EC Treaty have been replaced by Articles 136 EC to 143 EC) and Article 141(1) and (2) EC and of Directive 86/378/EEC or Directive 79/7/EEC – Meaning of pay – Civil service pension scheme – Calculation of the old-age pension for part-time civil servants – Discriminatory treatment as compared with full-time workers – Indirect discrimination based on sex – Conditions governing justification for objective reasons unrelated to any discrimination on grounds of sex – Protocol concerning Article 119 of the EC Treaty (now Protocol concerning Article 141 EC) – Temporal effects.

Judges:

La Pergola Rap

Citations:

[2003] EUECJ C-4/02, C-5/02, [2003] EUECJ C-5/02, [2004] IRLR 983, [2004] Pens LR 43, [2006] 1 CMLR 51, C-4/02

Links:

Bailii, Bailii

Jurisdiction:

European

Cited by:

Applied – Cross, Gibson, Malone, Leckenby, Young v British Airways EAT 23-Mar-2005
EAT Transfer of Undertakings / Sex Discrimination
Claims by BA employees, retired at 55, for unfair dismissal and sex discrimination dismissed by ET and Applicants’ appeals dismissed. Contractual retirement . .
Cited – Seldon v Clarkson Wright and Jakes (A Partnership) CA 28-Jul-2010
The claimant solicitor said that the compulsory retirement from his partnership on age grounds was discriminatory, and that the UK Regulations had not implemented the Directive fully.
Held: The appeal failed. The purpose of the provision as to . .
Cited – Seldon v Clarkson Wright and Jakes SC 25-Apr-2012
The appellant claimed that the requirement imposed on him to retire from his law firm partnership on attaining 65 was an unlawful discrimination on the grounds of age.
Held: The matter was remitted to the Employment tribunal to see whether the . .
Lists of cited by and citing cases may be incomplete.

Discrimination

Updated: 12 December 2022; Ref: scu.213875

Criminal Proceedings Against G Vessoso And G Zanetti: ECJ 28 Mar 1990

ECJ The concept of waste, within the meaning of Article 1 of Directive 75/442 and Article 1 of Directive 78/319, is not to be understood as excluding substances and objects which are capable of economic reutilization . The concept does not presume that the holder disposing of a substance or an object intends to exclude all economic reutilization of the substance or object by others.

Judges:

Sir Gordon Slynn, P

Citations:

C-206/88, [1990] ECR I -1461, R-206/88, [1990] EUECJ R-206/88

Links:

Bailii

Jurisdiction:

European

Cited by:

Cited – Ezeemo and Others v Regina CACD 16-Oct-2012
The defendants had been charged with offences relating to their intended transporting of waste materials to Nigeria. They appealed, complaining that the judge had directed that the offence under regulation 23 was an offence of strict liability.
Lists of cited by and citing cases may be incomplete.

Environment

Updated: 12 December 2022; Ref: scu.215764

Regina v A National Insurance Commissioner, Ex Parte Warry: ECJ 9 Nov 1977

ECJ Social security for migrant workers – invalidity insurance – benefits – right – acquisition – receipt of sickness benefit as a condition imposed by the legislation of a member state – insurance periods completed – aggregation – claim for benefit – submission – rules (Regulation No 1408/71 of the council, article 45)
Article 45 of regulation no 1408/71 must be understood to mean that where the legislation of a member state makes the acquisition of a right to invalidity benefit conditional upon the person concerned having been entitled to sickness benefit under that legislation for a given period in the immediately proceding period – that condition being subject to so far as material (a) the completion of insurance periods (b) the making of a claim therefor in a prescribed manner and within a prescribed time –
(i) the competent institution of the said member state shall take into account insurance periods completed under the legislation of any member state as though they had been completed under the legislation which it administers;
(ii) the condition that a claim must be made in a prescribed manner and within a prescribed time shall be regarded as satisfied in so far as such a claim has been duly made in accordance with the legislation of the state of residence.

Citations:

R-41/77, [1977] EUECJ R-41/77

Links:

Bailii

Statutes:

Regulation No 1408/71 45

Jurisdiction:

European

Benefits

Updated: 12 December 2022; Ref: scu.214586

Oneryildiz v Turkey: ECHR 18 Jun 2002

(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal house-hold refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house, killing his close relatives. The applicant claimed that the local authorities were responsible for the accident at the tip and for the death of his relatives. He relied inter alia on article 2 of the Convention.
Held: The state had failed in its positive obligation under article 2 to set up a framework for the protection of persons at risk. The authorities had ample knowledge of the risk and were in breach of their duty to take such operational measures as were necessary and sufficient to protect the persons at risk.
‘the Court reiterates, firstly, that its approach to the interpretation of Art 2 is guided by the idea that the object and purpose of the Convention as an instrument for the protection of individual human beings requires its provisions to be interpreted and applied in such a way as to make its safeguards practical and effective’.

Citations:

48939/99, [2002] ECHR 491, [2002] ECHR 496

Links:

Worldlii, Worldlii, Bailii

Statutes:

European Convention on Human Rights 2

Jurisdiction:

Human Rights

Citing:

Cited – Osman v The United Kingdom ECHR 28-Oct-1998
Police’s Complete Immunity was Too Wide
(Grand Chamber) A male teacher developed an obsession with a male pupil. He changed his name by deed poll to the pupil’s surname. He was required to teach at another school. The pupil’s family’s property was subjected to numerous acts of vandalism, . .

Cited by:

See Also – Oneryildiz v Turkey ECHR 30-Nov-2004
(Grand Chamber) The applicant had lived with his family in a slum bordering on a municipal household refuse tip. A methane explosion at the tip resulted in a landslide which engulfed the applicant’s house killing his close relatives.
Held: The . .
Cited – Re E (A Child); E v Chief Constable of the Royal Ulster Constabulary and Another (Northern Ireland Human Rights Commission and others intervening) HL 12-Nov-2008
(Northern Ireland) Children had been taken to school in the face of vehement protests from Loyalists. The parents complained that the police had failed to protect them properly, since the behaviour was so bad as to amount to inhuman or degrading . .
Cited – Gorovenky And Bugara v Ukraine ECHR 12-Jan-2012
The applicants’ relatives were shot by an off-duty police officer. They complained that the state had failed to exercise requisite control over the procedure for equipping police officers with a weapon. They alleged that there had been a breach of . .
Cited – Sarjantson v Humberside Police CA 18-Oct-2013
The claimant had been severely injured in an attack by a group of young men. He said that the defendant had failed in its duty to protect him and his family. He now appealed against the action being struck out.
Held: the judge’s interpretation . .
Lists of cited by and citing cases may be incomplete.

Human Rights

Updated: 12 December 2022; Ref: scu.213126

Regina (on the Application of) Snelgrove v the Crown Court at Woolwich, and the Crown Prosecution Service: Admn 29 Sep 2004

The claimant awaited trial for GBH. The claimant sought judicial review of directions given for 1) to direct disclosure of material to the claimant; 2) to adjourn the application to enable him to call oral evidence; 3) to consider any material outside the copy witness statements relied upon by the prosecution; and 4) to dismiss the charge against him pursuant to paragraph 2 of Schedule 3 to the Crime and Disorder Act 1998.
Held: The decisions were within the rules.

Judges:

Mr Justice Richards, Lord Justice Auld

Citations:

[2004] EWHC 2172 (Admin), [2005] 1 Cr App R 18, [2005] 1 WLR 3223

Links:

Bailii

Statutes:

Offences Against the Person Act 1861 18

Jurisdiction:

England and Wales

Citing:

Cited – In re Smalley HL 1985
Challenge by a surety to an estreatment of his recognizance was not a matter relating to a trial on indictment for the purpose of section 29(3) because it did not affect the conduct of the trial. A sensible legislative purpose can be seen for . .

Cited by:

Cited – Serious Fraud Office v Evans and Others QBD 14-Nov-2014
The court faced an application by the SFO for a voluntary bill of indictment. Similar charges against the defendants had been discharged. The allegations involved very substantial alleged frauds. . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 12 December 2022; Ref: scu.214676

Georg Brunner Kg v Hauptzollamt Hof: ECJ 4 Oct 1972

ECJ Article 1 of Regulation no 565/68 must be interpreted as meaning that goods must be considered as ‘coming from’ Poland when they remain until the moment when they are delivered in the community at the disposal and under the direct control of the seller who is bound vis-a-vis the Polish People’s Republic to comply with the undertakings entered into with regard to prices and when in the course of transportation they have not been given customs clearance, put into free circulation or processed in any way.

Citations:

C-9/72, R-9/72, [1972] EUECJ R-9/72

Links:

Bailii

Jurisdiction:

European

Customs and Excise

Updated: 12 December 2022; Ref: scu.214172

Pitchmastic Plc v Birse Construction Ltd: QBD 8 Jun 2000

A party to litigation made an offer on the day before trial of settlement without prejudice save as to costs. At trial it made an open offer in similar terms which was rejected. After reading a draft unfavourable judgment, the party applied to be allowed to accept the offer, contending that such an offer was to remain open for 21 days in any event. The rules allowed a party to withdraw such an offer, and such situations must be decided by ordinary rules of offer and acceptance. The rules which apply to acceptance of a payment in do not necessarily apply to offers to settle. There is no rule requiring the permission of the court before allowing the withdrawal of an offer of settlement, and the test for whether such an offer remained capable of acceptance was the normal one of offer and acceptance.

Citations:

Gazette 08-Jun-2000, Times 21-Jun-2000

Statutes:

Civil Procedure Rules Part 36

Jurisdiction:

England and Wales

Litigation Practice, Costs, Litigation Practice

Updated: 12 December 2022; Ref: scu.84743

Ajinomoto v Council (Commercial Policy): ECJ 3 May 2001

ECJ Appeal – Dumping – Normal value – Existence of a patent in the exporter’s domestic market – Effect on the lawfulness of the regulation imposing a definitive anti-dumping duty of an allegedly illegal element of the regulation imposing a provisional anti-dumping duty

Citations:

C-77/98, [2001] EUECJ C-77/98P, [2001] EUECJ C-77/98

Links:

Bailii, Bailii

Jurisdiction:

European

Customs and Excise

Updated: 12 December 2022; Ref: scu.213964

In re R (A Child): CA 18 Aug 2005

An application was made for continued contact after a proposed adoption. The mother was young and had herself lost her family and taken into care when very young.
Held: Her request for permission to appeal failed. Wall LJ said: ‘I am reasonably confident that in this particular case both sides understand the other’s position. When one comes to analyse it helpfully with the latest report of the guardian, whose mind itself has swayed both ways on this issue, I am prepared to accept, from what the guardian tells me, that the prospective adopters are genuinely anxious, not only about the outcome of the proceedings but about the issues that they raise, that their attitude to contact is a perfectly reasonable one, and that this is now a case which has to be dealt with by the human beings on the ground and is not one dealt with by legal proceedings. All that, in my judgment, comes within section 10(9)(a).’ Whilst the judge’s decision might be described as terse, it was essentially correct.

Citations:

[2005] EWCA Civ 1128

Links:

Bailii

Statutes:

Children Act 1989 10(9)

Jurisdiction:

England and Wales

Citing:

Cited – Re C (A Minor) (Adoption Order: Conditions) HL 1988
The House considered the question of conditions to be applied to any continued contact with a child after adoption. Lord Ackner said: ‘The cases rightly stress that in normal circumstances it is desirable that there should be a complete break, but . .
Cited – Re B (Minors: Contact) CA 7-Feb-1994
A Judge may deal with case on the papers and summarily or after an oral hearing at his discretion. . .
Cited – In re J (Leave to issue application for residence order) 2003
An application was made by a family member (a grandparent) to be joined as a party to care proceedings.
Held: A court should not dismiss such an application without proper inquiry. . .
Cited – In re H (Children) CA 2003
The maternal grandmother sought permission to intervene in care proceedings to put herself forward as the carer of her young grandchild. The local authority and the guardian objected to the intervention. The judge had refused it. The grandmother . .
Cited – In Re T (Minors) (Adopted Children: Contact) CA 8-Aug-1995
A half-sister had been assured that when her half-sister was adopted she would be given annual reports as to her progress. No report was provided. When she enquired and complained, she was told that the adopters had changed their minds and that it . .
Lists of cited by and citing cases may be incomplete.

Adoption

Updated: 12 December 2022; Ref: scu.230147

Societe IRCA (Industria Romana Carni E Affini Spa) v Amministrazione Delle Finanze Dello Stato.: ECJ 7 Jul 1976

1. Agriculture – agricultural products – trade – member states – third countries – monetary compensatory amounts – basic principles – purpose
2. Agriculture – agricultural products – trade – member states – third countries – monetary compensatory amounts – effects – position of importers and exporters in the member states – differences – complete compensation – non-existence
3. Agriculture – agricultural products – trade – member states – third countries – monetary compensatory amounts – calculation – factors – fixing – date subsequent to the period of applicability of the compensatory amounts – retroactive effect – absence
4. Agriculture – agricultural products – trade – member states – third countries – monetary compensatory amounts – regulations of the commission of 1 March 1973 and 23 March 1973 – validity

Citations:

R-7/76, [1976] EUECJ R-7/76

Links:

Bailii

Jurisdiction:

European

Agriculture

Updated: 12 December 2022; Ref: scu.214495

Birse v HM Advocate: HCJ 28 Jun 2000

Where a magistrate had heard a proper description of the reasons for granting a search warrant, it was not an abuse of the suspect’s human rights to execute it, even though he had not had chance to make any representations about the search. The right to an effective remedy was not to be enshrined in UK law, and this came close to such a claim.

Citations:

Times 28-Jun-2000

Jurisdiction:

Scotland

Human Rights, Criminal Practice

Updated: 12 December 2022; Ref: scu.78422

Witherley Parish Council (Local Government): ICO 1 Mar 2022

The complainant has requested information with regards to a Neighbourhood Development Plan. Witherley Parish Council (the council) provided some information, then following two internal review requests, the council issued a refusal notice citing section 14(1) of the Freedom of Information Act (the FOIA) – vexatious request. The Commissioner’s decision is that the request fell under the EIR and accordingly found that regulation 12(4)(b) of the EIR – manifestly unreasonable – was engaged and that the public interest favours maintenance of the exception. The Commissioner does not require any steps, but has set out some points in the ‘other matters’ section of this decision notice for both parties to note.
EIR 12(4)(b): Complaint not upheld

Citations:

[2022] UKICO ic-116753

Links:

Bailii

Jurisdiction:

England and Wales

Information

Updated: 12 December 2022; Ref: scu.674980

AB and others v British Coal Corporation: ComC 15 Jan 2008

Judges:

Mr Justice Mitting

Citations:

[2008] EWHC 69 (Comm)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

See Also – AB and others v British Coal Corporation and Coal Mining Contractor Defendants QBD 22-Jun-2004
. .
See Also – AB and others v Department of Trade and Industry S/A British Coal Corporation CA 21-Dec-2005
. .
See Also – AB and others v British Coal Corporation and others CA 19-Oct-2006
A collective compensation agreement, which required affected persons to submit their claims, along with medical evidence, through authorised solicitors to be compensated on the basis of agreed damages formula, was introduced. . .
See Also – AB and others v British Coal Corporation and Another ComC 18-May-2007
Resolution of disputes that have arisen between four claimants and the Department of Trade and Industry (DTI) in relation to the smoking history of four miners, (three of them now deceased), in respect of whom claims for damages have been made . .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) QBD 27-Jun-2007
The parties disputed the effect of the Claims Handling Agreement (CHA) which regulated claims for compensation for respiratory diseases incurred by people working for the defendant as regards the circumstances for claimants with chronic bronchitis. . .
See Also – AB and others v British Coal Corporation (Department of Trade and Industry) (Costs) QBD 27-Jun-2007
. .
See Also – AB and others v British Coal Corporation (Rulings Appended) QBD 13-Aug-2007
. .
Lists of cited by and citing cases may be incomplete.

Personal Injury

Updated: 12 December 2022; Ref: scu.263880