Burnett v Westminster Bank Ltd: ChD 1965

The plaintiff had a cheque account at the Borough Branch and drew a cheque on the cheque forms which had been provided. He crossed out the word `Borough’ and put in `Bromley’. He altered the address and he initialled the cheque. Later he decided to stop payment on the cheque, telephoning the Bromley Branch and informing them of this decision. The cheque had passed through the computer system which could not read the alterations made by the plaintiff. The cheque itself was forwarded to the Borough Branch at which the employees were unaware of the stop-payment instructions. At the end of the suspense period, the amount of the cheque was debited to the plaintiff’s account at the Borough Branch.
Held: The bank was unsuccessful in its contention that a new practice utilising the introduction of magnetic ink characters seeking to restrict cheques to the particular account for which they had been prepared, had been consensually agreed to by the customer. Notice of a change in condition oin cheque book covers was ineffective. A stop instruction from a bank’s customer applies to all accounts at the same branch if a specific account is not specified.
The bank is the debtor of the customer, whether the customer has a current or deposit account.

Judges:

Mocatta J

Citations:

[1966] 1 QB 742, [1965] 3 All ER 81

Jurisdiction:

England and Wales

Banking, Contract

Updated: 09 December 2022; Ref: scu.448095

Fresenius Kabi Deutschland Gmbh and Others v Carefusion 303, Inc: ChD 12 Oct 2011

The claimant sought an order debarring the defendant from relying on any evidence to support their case at the forthcoming trial for the revocation of a patent.

Judges:

Arnold J

Citations:

[2011] EWHC 2663 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Baird v Moule’s Patent Earth Closet Co Ltd CA 3-Feb-1876
Where a patentee sues for infringement and then discontinues his claim against the alleged infringer and consents to the revocation of his patent, he may yet require the alleged infringer to pay a substantial proportion of his costs if he can show . .

Cited by:

Appeal From – Fresenius Kabi Deutschland Gmbh and Others v Carefusion 303 Inc CA 8-Nov-2011
The parties had litigated the validity of a patent. . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 09 December 2022; Ref: scu.447518

Toshiba Carrier UK Ltd and Others v KME Yorkshire Ltd and Others: ChD 19 Oct 2011

The European Court had found agreements to be in place effectively fixing the market in industrial tube products. The claimants said that they had paid too much because of the agreements and sought damages.

Judges:

Sir Andrew Morritt Ch

Citations:

[2011] EWHC 2665 (Ch)

Links:

Bailii

Jurisdiction:

England and Wales

European, Commercial

Updated: 09 December 2022; Ref: scu.446010

In re T’s Settlement Trusts: ChD 1964

Wilberforce J was asked to approve a variation of a trust in favour of a child under the 1958 Act, to restrict her from getting her full entitlement on her attaining the age of 21 because she was said to be ‘alarmingly immature and irresponsible as regards money.’ She was within 18 days of attaining majority.
Held: The court deferred the vesting and imposed protective trusts in the interim. Wilberforce J said this of the word ‘benefit’: ”benefit’ is a word of wide meaning: it is not restricted to material benefit. On this basis I was urged to approve the arrangement.
This argument, based on the language of the Act, has much force . . There are obvious difficulties in attributing so wide a meaning to the Act of 1958. For example, is the court to consult the wished of the infant? That is, as has been found here, a matter of considerable difficulty, and where, as here, the infant is nearly 21, it would seem preferable, if her wishes can be taken into account, to leave the matter over until she can decide for herself. Or can the court impose a settlement against the infant’s wishes? To so this would involve going much further than the court goes under the Act of 1855, and places upon the court a heavy responsibility (which it does not have generally in variation of trusts applications) of considering and estimating the views of other persons (often including parents and medical and psychological experts) as to what is for the infant’s benefit.’

Judges:

Wilberforce J

Citations:

[1964] Ch 158

Statutes:

Variation of Trusts Act 1958 1

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 December 2022; Ref: scu.448126

in Re Wallace’s Settlements: ChD 1968

A judge considering an application to vary trusts should approach it with ‘a fair cautious and enquiring mind’.

Judges:

Megarry J

Citations:

[1968] 1 WLR 71

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts

Updated: 09 December 2022; Ref: scu.448125

In Re Bernstein: ChD 2008

The testator had left andpound;100,000 legacies to his grandchildren at 25. In order to achieve a tax saving. The court was asked to approve an arrangement under which the individual legacies were replaced by interest in a fund in which the widow had a short-term interest.
Held: There is jurisdiction under the 1958 Act to vary the trusts of an unadministered estate.
Blackburne J said: ‘One of the consequences of the arrangement is that the grandchildren take absolute interests on the termination of the widow’s income and interest, with the result that they will be able to call for payment of the capital of their respective shares as soon as they reach their majority as against the contingency of reaching 25 under clause 5 of the will prior to variation. This might not be considered necessarily for their benefit’

Judges:

Blackburne J

Citations:

Unreported 2008, [2008] EWHC 3454(?)

Statutes:

Variation of Trust Act 1958

Jurisdiction:

England and Wales

Cited by:

Cited – Wright and Another v Gater and Others ChD 7-Nov-2011
The beneficiary, a child was to inherit estates of his grandparents and parents, all of which were intestate. An application was made to vary the provisions in order to reduce the liability to Inheritance Tax.
Held: A deferment of vesting . .
Lists of cited by and citing cases may be incomplete.

Trusts, Wills and Probate

Updated: 09 December 2022; Ref: scu.448123

In re G-Tech Construction Limited: ChD 29 Sep 2005

In appointing the administrators, the wrong form had been used. The court was asked to use its powers to cure the mistake. The failure to file the correct form was overlooked, with the result that one of the prerequisites of an appointment taking effect under paragraph 31 remained unsatisfied. However, the administration was carried on successfully for about a year, and the error only came to light when the administrator proposed to put the company into voluntary liquidation. He then sought directions as to whether he had been validly appointed, and whether there was any way that the failure to file the correct form could be waived.
Held: The only solution was to make administration anew, but with retrospective effect. The failure could not be waived under rule 7.55, because the result of the failure was that the administration had never started and accordingly there were no ‘insolvency proceedings’ within the meaning of rule 7.55. In making the administration to take effect on a date earlier than that of the order itself, Hart J said that any such jurisdiction should be exercised ‘with extreme caution’.

Judges:

Hart J

Citations:

[2007] BPIR 1275

Statutes:

Insolvency Rules 1986 7.55

Jurisdiction:

England and Wales

Cited by:

Cited – In re Care Matters Partnership Ltd ChD 7-Oct-2011
An application was made for the appointment of administrators with retrospective effect.
Held: ‘there are two separate questions. The first question is whether an administration order should be made at all. This requires both the satisfaction . .
Cited – Hill v Stokes plc ChD 2010
The court approved the appointment of a company administrator with reprospective effect. . .
Cited – In re Derfshaw Ltd and Others ChD 2-Jun-2011
The court considered applications for administration orders made by six companies at the instigation of directors of those companies, and the appointment of administrators with retrospective effect.
Held: Morgan J said that he could see scope . .
Applied – In re Kaupthing Capital Partners ChD 2010
. .
Lists of cited by and citing cases may be incomplete.

Insolvency

Updated: 09 December 2022; Ref: scu.445158

British Wagon Co Ltd v Gray: 1896

Citations:

[1896] 1 QB 35

Jurisdiction:

England and Wales

Cited by:

Reversed – Duff Development Co v Kelantan Government HL 1924
Lord Sumner suggested that in the absence of a clear statement of the position from the Government, the court might be entitled to decide whether a defendat had the benefit of state immunity for itself on the basis of the evidence before it.
A . .
Mentioned – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

Jurisdiction

Updated: 09 December 2022; Ref: scu.441571

La Chemise Lacoste SA v Baker Street Clothing Ltd: 2010

Geoffrey Hobbs QC set out a summary of the principles when looking to confusion between trade marks: ‘(a) the likelihood of confusion must be appreciated globally, taking account of all relevant factors;
(b) the matter must be judged through the eyes of the average consumer of the goods or services in question, who is deemed to be reasonably well informed and reasonably circumspect and observant, but who rarely has the chance to make direct comparisons between marks and must instead rely upon the imperfect picture of them he has kept in his mind, and whose attention varies according to the category of goods or services in question;
(c) the average consumer normally perceives a mark as a whole and does not proceed to analyse its various details;
(d) the visual, aural and conceptual similarities of the marks must normally be assessed by reference to the overall impressions created by the marks bearing in mind their distinctive and dominant components, but it is only when all other components of a complex mark are negligible that it is permissible to make the comparison solely on the basis of the dominant elements;
(e) nevertheless, the overall impression conveyed to the public by a composite trade mark may, in certain circumstances, be dominated by one or more of its components;
(f) and beyond the usual case, where the overall impression created by a mark depends heavily on the dominant features of the mark, it is quite possible that in a particular case an element corresponding to an earlier trade mark may retain an independent distinctive role in a composite mark, without necessarily constituting a dominant element of that mark;
(g) a lesser degree of similarity between the goods or services may be offset by a great degree of similarity between the marks, and vice versa;
(h) there is a greater likelihood of confusion where the earlier mark has a highly distinctive character, either per se or because of the use that has been made of it;
(i) mere association, in the strict sense that the later mark brings the earlier mark to mind, is not sufficient;
(j) the reputation of a mark does not give grounds for presuming a likelihood of confusion simply because of a likelihood of association in the strict sense;
(k) if the association between the marks causes the public to wrongly believe that the respective goods [or services] come from the same or economically-linked undertakings, there is a likelihood of confusion.’

Judges:

Geoffrey Hobbs QC

Citations:

O/330/10

Jurisdiction:

England and Wales

Cited by:

Approved – Lewis v Client Connection Ltd ChD 6-Jul-2011
The claimant alleged infringement of his registered trade marks ‘Money Saving Expert’ and associated terms. The defendant operated a service trading as ‘Money Claiming Expert’. Both services included advising those who might wish to claim refunds . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property

Updated: 09 December 2022; Ref: scu.441529

Kahan v Pakistan Federation: 1951

State immunity can only be lost by a submission to the jurisdiction when it was invoked, and not by an earlier act.

Citations:

[1951] 2 KB 1003, [1951] 2 TLR 697

Jurisdiction:

England and Wales

Cited by:

Cited – NML Capital Ltd v Argentina SC 6-Jul-2011
The respondent had issued bonds but in 2001 had declared a moratorium on paying them. The appellant hedge fund later bought the bonds, heavily discounted. Judgment was obtained in New York, which the appellants now sought to enforce against assets . .
Lists of cited by and citing cases may be incomplete.

International

Updated: 09 December 2022; Ref: scu.441561

Barrett v Bem and Others: ChD 19 May 2011

The court retried an action disputing the validity of the will, new evidence having emerged post trial. The doubtful signature was explained by witnesses who said that he had been assisted.
Held: The matter might have been handled better, but the testator knew the contents of his will, and signed it.

Judges:

Vos J

Citations:

[2011] EWHC 1247 (Ch), [2011] 3 WLR 1193, [2011] WTLR 1117

Links:

Bailii

Statutes:

Wills Act 1837 9(a)

Jurisdiction:

England and Wales

Cited by:

Appeal from – Barrett v Bem and Others CA 31-Jan-2012
Under section 9(a) of the Wills Act 1937, as amended, the court should not find that a will has been signed by a third party at the direction of the testator unless there is a positive and discernible communication (which may be verbal or . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate

Updated: 09 December 2022; Ref: scu.440137

Revenue and Customs v Tower MCashback Llp 1 and Another: SC 11 May 2011

No re-opening after closure notices

The taxpayer had purchased software licences (SLA), and set out to claim the full cost against its tax liabiilities under the 2001 Act in the first year. The taxpayer said that after the Revenue had issued closure notices, it was not able to re-open the assessments for the year in question. The taxpayer appealed against the decision to allow the revenue to reopen the assessments, and the revenue appealed against allowing the claim of the full cost in the first year.
Held: The Revenue’s appeal was allowed, and that of the taxpayer rejected. HMRC had been free to advance alternative arguments on the expenditure issue. All of the consideration provided for in the SLA was not expenditure incurred on the provision of software. The closure notices were to be amended to allow only 25% of the first year allowances claimed.

Judges:

Lord Hope, Deputy President, Lord Rodger, Lord Walker, Lord Collins, Lord Kerr, Lord Clarke, Lord Dyson

Citations:

[2011] UKSC 19, UKSC 2010/0041, [2011] 3 All ER 171, [2011] STC 1143, [2011] STI 1620, [2011] BTC 294, [2011] 2 WLR 1131, [2011] 2 AC 457

Links:

Bailii, Bailii Summary, SC Summary, SC

Statutes:

Capital Allowances Act 2001 45, Taxes Management Act 1970 28B, Income and Corporation Taxes Act 1988 118ZA

Jurisdiction:

England and Wales

Citing:

At SCIT – Tower MCashback Llp1 and Llp2 v Revenue and Customs SCIT 19-Jul-2007
SCIT Capital expenditure on software – whether HMRC can raise additional contentions in an appeal beyond those indicated in the Closure Notice – whether expenditure was incurred pursuant to an unconditional . .
At ChD – Tower Mcashback Llp and Another v HM Revenue and Customs ChD 13-Oct-2008
The court considered the availablilty of a first year allowance for the full first year expenditure on software licence agreements. The revenue sought to bring new points on appeal.
Held: The LLPs’ appeals on the procedural issue as to the . .
At CA – Revenue and Customs v Tower MCashback Llp 1 and Another CA 2-Feb-2010
The taxpayer had sought to set off the entire cost of software licences against tax in the year of purchase, and challenged the re-opening of tax assessments after their closure by the Revenue. The Revenue appealed.
Held: The Revenue could . .

Cited by:

Cited – UBS Ag and Another v Revenue and Customs SC 9-Mar-2016
UBS AG devised an employee bonus scheme to take advantage of the provisions of Chapter 2 of the 2003 Act, with the sole purpose other than tax avoidance, and such consequential advantages as would flow from tax avoidance. Several pre-ordained steps . .
Cited – JJ Management Consulting Llp and Others v Revenue and Customs CA 22-Jun-2020
HMRC has power to conduct informal investigation
The taxpayer, resident here, but with substantial oversea business interests, challenged the conduct of an informal investigation of his businesses under the 2005 Act, saying that HMRC, as a creature of statute, are only permitted to do that which . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Taxes Management

Updated: 09 December 2022; Ref: scu.439647

Martin and Another v Maryland Estates Ltd: CA 26 Apr 1999

Questions as to statutory provisions about service charges contained in sections 18 and following of the Landlord and Tenant Act 1985.

Citations:

[1999] EWCA Civ 3049, [1999] L and TR 541, [1999] 2 EGLR 53, (2000) 32 HLR 116, [1999] 26 EG 151, [1999] EG 63

Links:

Bailii

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 09 December 2022; Ref: scu.431609

Fraser and others v Oystertec Plc and others: 3 Nov 2009

The court considered the meaning of ‘real’ prospects of success: ‘This does not mean that a party can successfully resist summary judgement by suggesting, like Mr Micawber, that something may turn up to save him, though he does not know what: see per Megarry V-C in Lady Anne Tennant v. Associated Newspapers Group Ltd [1979] FSR 298: per Jacob J in World Wide Fund for Nature v. World Wrestling Federation [2002] FSR 504, 515 (‘There must be some reasonable basis… It is not enough that something might turn up out of the blue’). The court must be able to see that the prospect is real, not fanciful. For example, ‘the hope that something may turn up during the cross-examination of a witness at the trial does not suffice. It is of course different if the admissible material available discloses a reasonable prima facie case which the other party will have to answer at the trial’ (per Lord Hobhouse in the Three Rivers case)’.

Judges:

Peter Prescott QC

Citations:

Unreported, 03/11/2009

Statutes:

Civil Procedure Rules 24.2.3

Jurisdiction:

England and Wales

Citing:

See Also – Fraser and others v Oystertec Plc and others PatC 7-Nov-2003
. .
See Also – Fraser, Wong-Fraser, Davidson Tools Limited, Sankey Product Developments Limited v Oystertec Plc, Davidson, Binney, Easyrad Limited ChD 6-Oct-2004
. .

Cited by:

Cited – Gray v News Group Newspapers Ltd and Another; Coogan v Same ChD 25-Feb-2011
The claimants said that agents of the defendant had unlawfully accessed their mobile phone systems. The court was now asked whether the agent (M) could rely on the privilege against self incrimination, and otherwise as to the progress of the case. . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 09 December 2022; Ref: scu.430236

Balgobin and Others (T/A Sunny Lodge) v Revenue and Customs: FTTTx 3 Nov 2010

Partnership return, section 12AA Taxes Management Act 1970 (‘TMA’) – late filing penalty, section 93A TMA – filing paper return after both paper and electronic deadline – failure of HMRC to provide free software for electronic filing of partnership return – appeal dismissed

Citations:

[2010] UKFTT 537 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes Management, Income Tax

Updated: 09 December 2022; Ref: scu.426653

Cala Homes (South) Ltd v Secretary of State for Communities and Local Government: Admn 16 Dec 2010

Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was required, and that therefore a direction to ignore the current criteria was unlawful. The claimant now said that a letter written following the judgement, and which announced his intentions and said that these were a material consideration for such decisions now being made, was also unlawful.
Held: A declaration was granted.

Judges:

Lindblom J

Citations:

[2010] EWHC 3278 (Admin)

Links:

Bailii

Statutes:

Planning and Compulsory Purchase Act 2004 38(6)

Jurisdiction:

England and Wales

Citing:

Cited – Regina (Save) v Gateshead Metropolian Borough Council Admn 2010
. .
Cited – Regina v Secretary of State for Education and Science, ex parte Avon County Council CA 1991
The court was asked to order a stay on implementing a decision taken by the respondent.
Held: A ‘stay of proceedings’ in the context of applications for judicial review embraced not only judicial or quasi-judicial proceedings but also extended . .
See Also – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 10-Nov-2010
Regional Spatial Stategies, setting targets for new homes within regions, and governing planning consents were to be withdrawn by the respondent and replaced in due course by a new planning bill. The claimant objected that this could only be . .
Cited – Regina v Secretary of State for Transport, ex parte Factortame (No 2) HL 11-Oct-1990
The validity of certain United Kingdom legislation was challenged on the basis that it contravened provisions of the EEC Treaty by depriving the applicants of their Community rights to fish in European waters, and an interlocutory injunction was . .
Cited – Regina v HM Inspector of Pollution and Ministry of Agriculture, Fisheries and Food, Ex Parte Greenpeace Ltd CA 30-Sep-1993
A campaigning organisation was challenging an official decision which, if stayed, would have adverse financial implications for a commercial company (British Nuclear Fuels PLC) which was not a party to the proceedings. Brooke J had refused a stay. . .
Cited – Regina (H) v Ashworth Hospital Authority and Others, Regina (Ashworth Hospital Authority) v Mental Health Review Tribunal for West Midlands and North West Region and Others CA 28-Jun-2002
The patient was detained under the Act. The Mental Health Tribunal decided he should be released. The hospital disagreed. The patient continued to reside to the Hospital voluntarily, but the hospital viewed the decision to release him as . .

Cited by:

See Also – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Cherkley Campaign Ltd, Regina (on The Application of) v Longshot Cherkley Court Ltd Admn 22-Aug-2013
The campaign company sought judicial review of a decision by the respondent granting permission to develop nearby land as a golf course.
Held: The application succeeded. The Secretary of State in preserving the effect of certain policies had . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 December 2022; Ref: scu.427282

Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another: Admn 10 Nov 2010

Regional Spatial Stategies, setting targets for new homes within regions, and governing planning consents were to be withdrawn by the respondent and replaced in due course by a new planning bill. The claimant objected that this could only be achieved by primary legislation, and that pending such it was wrong to allow the respondent to withdraw the RSS documents.
Held: The challenge was well founded and that the action of the Secretary of State had been unlawful, for two reasons: first, because the Secretary of State’s attempt to use his power under section 79(6) of the 2009 Act to revoke all Regional Strategies in force at that date involved the use of that power for an improper purpose, essentially because the power given by that provision had not been intended by Parliament to be used to effect the abrogation of the Regional Strategy tier of planning policy by executive action; and, secondly, because the Secretary of State’s decision to revoke the Regional Strategy for the South-East had been taken without the necessary consideration of whether this change in the development plan was likely to have significant environmental effects, and was thus in breach of the Strategic Environmental Assessment Directive and Regulations.

Judges:

Sales J

Citations:

[2010] EWHC 2866 (Admin)

Links:

Bailii

Statutes:

Town and Country Planning Act 1990 79(6)

Jurisdiction:

England and Wales

Cited by:

See Also – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government Admn 16-Dec-2010
Local authorities were presently bound to plan future housing developments in accordance with Regional Spatial Strategies which the new government intended to abolish. The respondent had previously been told by the court that primary legislation was . .
See Also – Cala Homes (South) Ltd v Secretary of State for Communities and Local Government and Another Admn 7-Feb-2011
The claimant sought judicial review of a statement and letter by the respondent making a material consideration for planning authorities the intended revocation by the Respondent of Regional Spatial Strategies. The effect would be to allow the . .
Cited – Hinds, Regina (on The Application of) v Blackpool Council Admn 17-Mar-2011
The council had resolved to grant planning permission for a development, but before the permission was actually granted the Secretary of State had written to planning authorities saying that he intended to abolish the ‘Regional Spatial Strategies’. . .
See Also – Cala Homes (South) Ltd, Regina (on The Application of) v Secretary of State for Communities and Local Government and Another CA 27-May-2011
The respondent had circularised local authorities to say that when assessing future local housing needs a proper material consideration was the proposed Localism Bill which would lead to the replacement of ‘Regional Spatial Strategies’ on which such . .
Cited – Broxbourne Borough Council v Robb and Others QBD 27-Jun-2011
The Council applied for the committal of the defendant for an alleged breach of a without notice injunction. Notice of the injunction had been placed at the site, requiring nobody to move caravans onto the land.
Held: The application . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 09 December 2022; Ref: scu.425898

Gojra and Another, Regina v: CACD 6 Aug 2010

The defendants appealed against convictions for assault and kidnapping, saying that the identification procedures used were at fault.
Held: The identification evidence had been properly admitted. The prosecution witness had not had the defendant named or pointed out to him.

Judges:

Hughes LJ, Rafferty, Maddison JJ

Citations:

[2010] EWCA Crim 1939

Links:

Bailii

Statutes:

Police and Criminal Evidence Act 1984 78

Jurisdiction:

England and Wales

Crime

Updated: 09 December 2022; Ref: scu.421560

Greene Wood Mclean Llp v Templeton Insurance Ltd: ComC 26 Oct 2010

The court considered various cross claims between the firm of solicitors, now in administration,and their insurers after the insurance company had met claims by former clients.

Judges:

Cooke J

Citations:

[2010] EWHC 2679 (Comm)

Links:

Bailii

Statutes:

Civil Liability (Contribution) Act of 1978

Jurisdiction:

England and Wales

Insurance, Legal Professions, Professional Negligence

Updated: 09 December 2022; Ref: scu.425562

London Borough of Sutton v Swann: 30 Nov 1985

The defendant had applied to buy his council property, but lost his secure tenancy before completion of the purchase.
Held: He had lost the right to buy the property.

Citations:

(1985) 18 HLR 140, Times 30-Nov-1985

Jurisdiction:

England and Wales

Cited by:

Cited – London Borough of Haringey v Hines CA 20-Oct-2010
The authority sought rescission of a lease granted to the defendant under the right to buy scheme, saying that she had misrepresented her occupation when applying. The tenant replied that no adequate evidence had been brought that she was not a . .
Lists of cited by and citing cases may be incomplete.

Housing

Updated: 09 December 2022; Ref: scu.425498

Chelsea Building Society v Nash: CA 19 Oct 2010

The defendant customer of the Society appealed against an order as to the sum due under a joint mortgage. She said that the ‘full and final settlement’ of the debt with Ms Nash’s former husband and joint mortgagor had the effect of releasing Ms Nash from her liability under the legal charge.
Held: The appeal succeeded. Pitchford LJ said: ‘the current state of the law is that, in order for the creditor to reserve his rights against co-debtors, he should expressly reserve those rights in his agreement. If he does not make express reservation the court will need to determine whether a term is necessarily to be implied from the circumstances which existed at the time of the agreement. In this case there was only one version of the agreement in evidence before the learned judge and that was provided by Mr Upton whose evidence the judge, to a large extent, accepted. There was no evidence before the judge of any express reservation by the claimant of its rights to pursue Ms Nash and the judge made no finding that such a reservation had expressly been made.’

Judges:

Sedley, Pitchford, Gross LJJ

Citations:

[2010] EWCA Civ 1247, [2011] BPIR 381

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Matthey v Curling HL 1922
During the term of the lease, the property had been taken over by the military authorities under wartime powers. Shortly before the term expired the house was destroyed in a fire. The lessor claimed the last quarter’s rent and for breach of the . .
Cited – Deanplan Limited v Mahmoud 1992
The court considered whether a release of one of joint contractors released the other contractors. He said: ‘An original lessee or intermediate assignee of the lease who had given a direct covenant to pay rent and observe the covenant is released . .
Cited – Watts v Aldington, Tolstoy v Aldington CA 15-Dec-1993
There had been a settlement of proceedings for libel brought by Lord Aldington against Mr Nigel Watts and Count Nikolai Tolstoy. Lord Aldington had obtained judgment for andpound;1.5 million in damages against both defendants following a trial. . .
Cited – Pinnel’s Case, Penny v Core CCP 1602
Payment of Lesser Sum Not Satisfaction
(Court of Common Pleas) The payment of a lesser sum on the day in satisfaction of a greater, cannot be any satisfaction for the whole. The gift of a horse, hawk, robe, etc., in satisfaction, is good. Payment of part before the day and acceptance may . .
Cited – Johnson and Another v Davis and Another CA 18-Mar-1998
The court was asked: ‘whether or not the appellants were released from their obligation under a covenant to indemnify the respondents against claims arising under a lease by reason of the terms of an individual voluntary arrangement made under part . .
Lists of cited by and citing cases may be incomplete.

Banking, Contract

Updated: 09 December 2022; Ref: scu.425795

Interfact Ltd v Liverpool City Council: Admn 29 Jun 2010

The claimant had been convicted in 2005 of an offence under the 1984 Act. It later became clear that the Act failed properly to implement a European Directive and was unenforceable. The company now sought leave to appeal out of time. The case was heard along with the case of Budimir.

Citations:

[2010] EWHC 1604 (Admin), [2011] 2 WLR 396

Links:

Bailii

Statutes:

Civil Procedure Rules 52.17, Video Recordings Act 1984

Jurisdiction:

England and Wales

Citing:

See Also – Interfact Ltd and Another v Liverpool City Council Admn 23-May-2005
The defendants, operators of licensed sex shops, appealed convictions for offences under the Act. The shops had supplied videos rated R*18 by mail order from the shops. The Trading Standards Officer said this did not satisfy the requirement that . .

Cited by:

See Also – Regina v Budimir and Another CACD 29-Jun-2010
The defendants sought leave to appeal out of time saying that their convictions had been under the 1984 Act which was later found to have been unenforceable for failure to comply with notification requirements under European law. The 1984 Act had . .
Lists of cited by and citing cases may be incomplete.

Crime, European

Updated: 09 December 2022; Ref: scu.418446

Gill, Regina (on The Application of) v Secretary of State for Justice: Admn 26 Feb 2010

Failure to provide programme discriminated

The claimant prisoner who had a learning disability said that he had been unable to complete the offending behaviour programmes because of his disability, that he had been kept in prison for much longer than he should have been as a consequence, and that the defendant should have made appropriate adjustments. It was accepted that his reading skills and IQ level were below the levels required to participate in the programmes. Prison policies stated that facilities were available to all, including prisoners with disabilities.
Held: The claim succeeded. It was acknowledged that he needed to complete the courses but also that suitable courses were not available to him. It was demonstrated that the respondent had neither made reasonable adjustments nor even considered how they might be made.
Cranston J said: ‘steps should have been taken so that he could be provided with some type of offending behaviour work to give him the opportunity to demonstrate, eventually, his safety for release. Other steps have been taken, and assistance provided, but nothing comparable to offending behaviour work. It is clear to me that this failure cannot be justified. In the circumstances of this claimant’s case the Secretary of State has unlawfully breached the statutory duty imposed on him to take steps so that his practices, policies and procedures do not discriminate against this intellectually disabled prisoner.’

Judges:

Cranston J

Citations:

[2010] EWHC 364 (Admin), (2010) 13 CCL Rep 193

Links:

Bailii

Statutes:

Disability Discrimination Act 1995 49A, Prison Act 1952

Jurisdiction:

England and Wales

Citing:

Cited – Alexander v Home Office CA 1988
Prisoners are a section of the public for the purposes of the 1976 Act. The Court increased an award for injury to feelings awarded for race discrimination by prison officers from pounds 50 to pounds 500. The court considered the appropriate level . .
Cited – Gichura v Home Office and Another CA 20-May-2008
The claimant sought damages after his treatment as a disabled person whilst held in immigration detention centres. The court dismissed his claim on the basis of Amin.
Held: The application of the Amin case was too simplistic. The various . .
Cited – Lunt, Regina (On the Application of) vLiverpool City Council and Another Admn 31-Jul-2009
Blake J endorsed a six step approach which a public authority will need to address in relation to its duty to make adjustments to avoid indirectly discriminating: ‘1. Did the [public authority] have a practice policy or procedure?
2. Did that . .
Cited – Brown, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 18-Dec-2008
Having ‘due regard’ is not Obligation to do
The claimant sought to challenge the decision to close her local post office on the basis that being retired and disabled and without a car in a rural area, the office was essential and the decision unsupportable. In particular she challenged the . .
Cited – AM, Regina (on The Application of) v The City Council and Another Admn 2-Mar-2009
The question under section 49A is whether the relevant public body has in substance incorporated the thought processes required. . .
Cited – Secretary of State for Justice v James HL 6-May-2009
The applicant had been sentenced to an indefinite term for public protection, but the determinate part of his sentence had passed with no consideration as to whether his continued detention was required.
Held: The post tariff detention was not . .
Cited – EC Gransden and Co Ltd and Falkbridge Ltd v Secretary of State for the Environment QBD 1985
If a decision maker intends to depart from any relevant policy, he must give clear reasons for doing so, in order that the person affected should know why the decision was being made as an exception to the policy and the grounds upon which the . .
Lists of cited by and citing cases may be incomplete.

Prisons, Discrimination

Updated: 09 December 2022; Ref: scu.401862

Landmaster Properties Limited v Thackeray Property Services Limited: 2003

The landlord served a section 146 notice and the tenant served a counternotice under the 1938 Act. The landlord sought leave to forfeit the lease.
Held: Leave was given under ground (e) to forfeit the lease of a public house which had closed for business in 1998 and then had been vandalised and finally destroyed by fire. The landlord owned other shops in the immediate vicinity which were affected by what had become a derelict site which encouraged vandalism and caused nuisance and annoyance to neighbouring premises.

Judges:

Cox J

Citations:

[2003] EWHC 959

Statutes:

Leasehold Property (Repairs) Act 1938, Law of Property Act 1925 146

Jurisdiction:

England and Wales

Cited by:

Cited – Agricullo Ltd v Yorkshire Housing Ltd CA 16-Mar-2010
The landlord sought leave to appeal against a refusal to award it costs associated with the service of a section 146 notice on the tenant. The tenant had covenanted to repair, and to indemnify the landlord against expenses of such notices. The . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 09 December 2022; Ref: scu.403027

Friends of Hethel Ltd, Regina (on The Application of) v South Norfolk District Council and Another: CA 30 Jul 2010

The claimants challenged planning permission given for the erection of wind turbines.

Judges:

Sedley, Lloyd, Sullivan LJJ

Citations:

[2010] EWCA Civ 894, [2011] 1 WLR 1216, [2010] NPC 90, [2011] PTSR 630, [2011] BLGR 19, [2011] JPL 192

Links:

Bailii

Statutes:

Town and Country Planning (Environmental Impact Assessment)(England and Wales) Regulations 1999

Jurisdiction:

England and Wales

Planning, Environment

Updated: 09 December 2022; Ref: scu.421203

Weldon v Neal: CA 1887

An amendment to pleadings should not be allowed so as to allow a plaintiff to set up a cause of action which would otherwise be barred by the Statutes of Limitation.

Judges:

Lord Esher MR

Citations:

(1887) 19 QBD 394

Jurisdiction:

England and Wales

Cited by:

Cited – Roberts v Gill and Co Solicitors and Others SC 19-May-2010
The claimant beneficiary in the estate sought damages against solicitors who had acted for the claimant’s brother, the administrator, saying they had allowed him to take control of the assets in the estate. The will provided that property was to be . .
Lists of cited by and citing cases may be incomplete.

Limitation, Litigation Practice

Updated: 09 December 2022; Ref: scu.415953

The Lyttelton Times Company Limited v Warners Limited: PC 31 Jul 1907

(New Zealand) Premises had been leased for use as a printing house, including printing plant and machinery, and the landlords occupied the upper floors for use as bedrooms for their hotel. The landlords then sought an injunction and damages in respect of the noise and vibration caused by the printing business.
Held: While the plaintiffs might have the intention of having reasonably quiet bedrooms, the defendant’s intention was that they should be able to print. The lessor had impliedly reserved the right to use the ground floor as a printing works, notwithstanding the noise generated by that use. A right to emit noise can amount to an easement.
Lord Loreburn said that: ‘If A lets a plot to B, he may not act so as to frustrate the purpose for which in the contemplation of both parties the land was hired. So also if B takes a plot from A, he may not act so as to frustrate the purpose for which in the contemplation of both parties the adjoining plot remaining in A’s hands was destined.’

Judges:

Lord Loreburn LC

Citations:

[1907] UKPC 47, [1907] AC 476, [1904-07] All ER 200

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Pwllbach Colliery Co v Woodman HL 1915
Whether an easement may be created by implication depends on the circumstances under which it is said to have been made. The law implies a grant of such easements as may be necessary to give effect to the common intention of the parties to a grant . .
Cited – Coventry and Others v Lawrence and Another SC 26-Feb-2014
C operated a motor racing circuit as tenant. The neighbour L objected that the noise emitted by the operations were a nuisance. C replied that the fact of his having planning consent meant that it was not a nuisance.
Held: The neighbour’s . .
Cited – Rees and Another v Windsor-Clive and Others CA 1-Jul-2020
Reservation Derogation construed normally
Construction of tenancy agreement – correct approach to reservations made in favour of the landlord. The landlord required access to the tenanted farm to allow survey work anticipating development of his adjoining land. The tenant now appealed . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 09 December 2022; Ref: scu.419856

Mullock v Price (T/A The Elms Hotel Restaurant): CA 15 Oct 2009

The court was asked as to what issues were relevant when considering an application to set aside judgment in default and in particular when asking ‘whether the person seeking to set aside the judgment made an application to do so promptly’.

Judges:

Ward, Sedley, Smith LJJ

Citations:

[2009] EWCA Civ 1222, [2010] CP Rep 10

Links:

Bailii

Statutes:

Civil Procedure Rules 13.3(2)

Jurisdiction:

England and Wales

Civil Procedure Rules

Updated: 09 December 2022; Ref: scu.381575