Commission of the European Communities v Ireland (Supported by United Kingdom, Intervener): ECJ 21 Jun 2001

Rules within the Irish republic which differentiated between imported precious metal goods and such goods produced internally, were contrary to European law as measures having effect as quantitative restrictions on imports. The rules affected were those, prohibiting distribution of imported goods with descriptions appropriate to their country of origin, requiring extra and sponsor’s marks, requiring second stamping of Irish hallmarks, and establishing differences between Irish and non-Irish hallmarked goods of the same type and standard.

Citations:

Times 03-Sep-2001

Jurisdiction:

European

Commercial

Updated: 05 December 2022; Ref: scu.162936

Regina v Lord Saville of Newdigate and Members of the Tribunal Sitting As Bloody Sunday Inquiry, ex Parte: B; O and U and V: CA 30 Mar 1999

A second tribunal of enquiry into a matter was not bound by decisions of the first to give anonymity to witnesses. It must however consider that decision. Such tribunals had to govern their own procedures. Appeals against reasons alone are not recommended.

Citations:

Times 15-Apr-1999, [1999] EWCA Civ 1136

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Lord Saville of Newdigate Right Honourable Sir Edward Somers Right Honourable Justice Hoyt (the Members of Tribunal Sitting As Bloody Sunday Inquiry) ex parte B, O, U and V Admn 4-Feb-1999
. .
Lists of cited by and citing cases may be incomplete.

Administrative

Updated: 05 December 2022; Ref: scu.146051

Berkshire Capital Funding Limited v Street and Barker, Nationwide Building Society: CA 14 Apr 1999

The court can make an order for possession in favour of the second mortgagee, subject to the rights of a prior mortgagee. Where the first mortgagee grants a tenancy of the mortgaged property, the second mortgagee will be bound by that tenancy and will not be entitled to possession as against that tenant.

Citations:

[1999] EWCA Civ 1158, (1999) 78 P and CR 321

Jurisdiction:

England and Wales

Cited by:

Cited – The Co-Operative Bank Plc v Phillips ChD 21-Aug-2014
The bank had brought possession proceedings against the defendant under two legal charges securing personal guarantees. The proceedings had been abandoned, but the court now was asked whether costs for the defendant should be on the standard or . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.146073

Bourns Inc v Raychem Corporation; Latham and Watkins (a Firm): CA 30 Mar 1999

Documents disclosed in support an application in a costs taxation, remained subject to implied duties of confidence, and they could not be used for any other purpose, including to support litigation abroad. Where questions of US law arose, a US court was the best place to decide those questions. Legal privilege is not lost under English law because it cannot be claimed in another country: ‘To suggest otherwise would mean that a court, when deciding whether to uphold a claim for privilege, would need to be informed as to whether privilege could be claimed in all the countries of the world. . . The fact that under a foreign law the document is not privileged or that the privilege that existed is deemed to have been waived is irrelevant. The crucial consideration is whether the document and its information remain confidential in the sense that it is not properly available for use. If it is, then privilege in this country can be claimed and that claim, if properly made, will be enforced.’

Judges:

Aldous LJ

Citations:

Times 12-May-1999, [1999] EWCA Civ 1128, [1999] 3 All ER 154

Jurisdiction:

England and Wales

Citing:

See also – Bourns Inc v Raychem Corporation CA 17-Dec-1998
. .

Cited by:

Cited – B and Others Russell McVeagh McKenzie Bartleet and Co v Auckland District Law Society, Gary J Judd PC 19-May-2003
(New Zealand) Solicitors resisted requests to disclose papers in breach of legal professional privilege from their professional body investigating allegations of professional misconduct against them.
Held: The appeal was allowed. The . .
See also – Bourns Inc v Raychem Corporation CA 17-Dec-1998
. .
Cited – British American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
Lists of cited by and citing cases may be incomplete.

Intellectual Property, Litigation Practice, Jurisdiction

Updated: 05 December 2022; Ref: scu.146043

SFI Group plc (formerly Surrey Free Inns plc) v Gosport Borough Council; Regina v Knightsbridge Crown Court ex p Cataldo: CA 29 Mar 1999

When considering the facts of a notice served under the Act, the court must look to the situation at the time when the notice is served, and not at the time when the case or appeal came to be heard. The previous Act used different wordings.

Citations:

Times 05-Apr-1999, [1999] EWCA Civ 1126

Statutes:

Environmental Protection Act 1990 80

Jurisdiction:

England and Wales

Citing:

Resumed from – Surrey Free Inns v Gosport Borough Council CA 12-Jun-1998
A noise abatement notice had been served, and appealed to the magistrates. By the time the matter came before the Crown Court, the bar had been soundproofed. The question then was which was the applicable time.
Held: In view of the contrasting . .

Cited by:

Adjourned to – Surrey Free Inns v Gosport Borough Council CA 12-Jun-1998
A noise abatement notice had been served, and appealed to the magistrates. By the time the matter came before the Crown Court, the bar had been soundproofed. The question then was which was the applicable time.
Held: In view of the contrasting . .
Lists of cited by and citing cases may be incomplete.

Nuisance

Updated: 05 December 2022; Ref: scu.146041

Patel v Patel: CA 24 Mar 1999

A party applying to set a default judgment aside with associated leave to defend did not thereby take any substantial step in proceedings which would debar him from insisting that the matter be stayed pending a referral to arbitration.

Citations:

Times 09-Apr-1999, [1999] EWCA Civ 1080

Statutes:

Arbitration Act 1996 9

Jurisdiction:

England and Wales

Cited by:

Cited – Seabridge Shipping AB v AC Orssleff’s EFtF’s A/S QBD 1999
The court discussed the policies underlying the 1996 Act: ‘One of the major purposes of the Arbitration Act 1996 was to set out most of the important principles of the law of arbitration of England and Wales in a logical order and expressed in a . .
Cited – Lesotho Highlands Development Authority v Impregilo Spa and others HL 30-Jun-2005
The House had to consider whether the arbitrator had acted in excess of his powers under s38, saying the arbitrator had misconstrued the contract. The arbitrator had made his award in different currencies.
Held: The question remained whether . .
Lists of cited by and citing cases may be incomplete.

Arbitration

Updated: 05 December 2022; Ref: scu.145995

Sanctuary Housing Association v Campbell: CA 18 Mar 1999

The claimant had granted a secure weekly tenancy of a maisonette to Mrs Campbell, which she occupied with her husband and children. Mrs Campbell then left the maisonette, leaving the husband in occupation. The husband made a proposal to the claimant whose substance was that he should be given the tenancy of the maisonette, but the claimant refused, saying that once Mrs Campbell was re-housed it would require vacant possession. Mrs Campbell was re-housed, although not by the claimant, and she then wrote to the claimant saying that she was giving up the maisonette and asking what she should do with the keys. The claimant’s response was that she must empty the maisonette of her possessions before returning the keys and that until such times as the keys were returned she would be liable for the rent. Her response was that she could not do this because her husband remained in possession and had changed the locks. She enclosed her own keys with her letter. She asked to be given the opportunity to remove her own possessions from the maisonette once her husband had vacated it, following which the claimant wrote to the husband asking him to leave. He did not, and so two months later the claimant sued him for possession.
Held: A wife who is a sole tenant has the full right to determine a tenancy even though her husband occupied the house at all material times, and even though this operated to deny him rights he would have against her under the Act. There had been nothing equivocal about the wife’s or the claimant’s acts and there had been an implied surrender of the wife’s tenancy to the claimant. Lord Justice Scott: ‘If both tenant and landlord are unequivocally treating a tenancy as at an end the law has no business to insist on its continuance.’

Judges:

Lord Justice Thorpe

Citations:

Times 01-Apr-1999, [1999] EWCA Civ 1030, [1999] 1 WLR 1279, [1999] L and TR 425, (2000) 32 HLR 100

Links:

Bailii

Statutes:

Matrimonial Homes Act 1983

Jurisdiction:

England and Wales

Citing:

Cited – London Borough of Brent v Sharma and Vyas CA 1992
A tenancy of a flat was granted to Miss Vyas. She occupied it with Mr Sharma. They later married. She moved out and was given the tenancy of a council house elsewhere. She then wrote to Brent, the landlords, to say she was no longer sharing with Mr . .

Cited by:

Cited – Ealing Family Housing Association Ltd v McKenzie CA 10-Oct-2003
The defendant and his wife separated when she left the flat they shared. She accepted a new tenancy of other premises. The landlord claimed possession of the flat, saying that the tenancy had ended.
Held: There was no express surrender within . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Family

Updated: 05 December 2022; Ref: scu.145945

Artesian Residential Investments Limited v Beck: CA 19 Mar 1999

The tenant sought relief from forfeiture under section 138 against a landlord seeking possession of his assured tenancy. There were arrears of rent which he believed he could pay.
Held: The grounds for possession were statutory, and had been demonstrated. The action was not an action for forfeiture. ‘section 5(1) makes it abundantly clear that the order for possession ipso facto brings the assured tenancy to an end’ and the 1988 Act was explicit in requiring the court to make an order for possession if the ground was made out. The landlord’s appeal succeeded.

Judges:

Hirst LJ, Mantell LJ

Citations:

[1999] EWCA Civ 1033, [2000] QB 541, [2000] 2 WLR 357, (2000) 32 HLR 107, [1999] 22 EG 145, [1999] EG 46, [1999] 3 All ER 113, [1999] L and TR 278, [1999] 2 EGLR 30

Links:

Bailii

Statutes:

County Courts Act 1984 138, Housing Act 1988 1

Jurisdiction:

England and Wales

Cited by:

Cited – White v Knowsley Housing Trust and Another CA 2-May-2007
The tenant was an assured tenant. She fell into arrears of rent and a possession order was made, but suspended on terms. The court considered whether she continued to be an assured tenant, and could assert a right to buy the property as an assured . .
Overruled – Knowsley Housing Trust v White; Honeygan-Green v London Borough of Islington; Porter v Shepherds Bush Housing Association HL 10-Dec-2008
The House considered situations where a secure or assured tenancy had been made subject to a suspended possession order and where despite the tenant failing to comply with the conditions, he had been allowed to continue in occupation.
Held: . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 05 December 2022; Ref: scu.145948

Regina v Secretary of State for Home Department ex parte Easterbrook: CA 22 Mar 1999

A prisoner subject to a discretionary life sentence argued that as the Lord Chief Justice, in advising the Secretary of State on his tariff, was performing an act equivalent to an act of sentencing the appropriate course was to allow him to make oral submissions before that determination was made.
Held: The court was satisfied that there was no substance in these submissions. (Woolf) ‘In coming to that conclusion I bear in mind that the argument is not based upon any dispute as to the facts which an oral hearing would have helped to clarify. The facts in this case were not in issue. Mr Easterbrook had an opportunity of advancing oral submissions before the Judge as to matters that were relevant to sentence and also on the oral hearing before the Court of Appeal. The Lord Chief Justice had the benefit of the full and well drafted submissions to which I have already made reference. I do not believe that an oral hearing could have provided anything which would have influenced the Lord Chief Justice to come to a different conclusion . . . . I do not consider anything would have been achieved in this case by an oral hearing.’

Judges:

Lord Woolf MR

Citations:

[1999] EWCA Civ 1054

Jurisdiction:

England and Wales

Cited by:

Cited – Regina (on the Application of Dudson) v Secretary of State for the Home Department and the Lord Chief Justice Admn 21-Nov-2003
The applicant had been sentenced to detention during Her Majesty’s Pleasure. He sought a judicial review of the Lord Chief Justice’s recommendation to the Home Secretary for the minimum term he was to serve.
Held: In exercising this function, . .
Lists of cited by and citing cases may be incomplete.

Criminal Sentencing

Updated: 05 December 2022; Ref: scu.145969

Allen and Another v Rochdale Borough Council: CA 23 Mar 1999

Land was sold. It had been used as playing fields. The freehold and leasehold interests in the land were held by the respondent, and the claimants asserted it was held as bare trustees for them as charitable trustees for the school foundation. The lease in favour of the council had been discovered before completion, but the respondent had not disclosed it.
Held: Any implied surrender of the lease by the council did not operate to creat an resulting trust in its favour. As to the part of the land comprised in the lease which had not been sold, that land remained subject to the lease in favour of the council.

Judges:

Lord Justice Beldam Lord Justice Morritt Lord Justice Mantell

Citations:

[2000] Ch 221, [1999] EWCA Civ 1065

Statutes:

Charities Act 1993 36

Jurisdiction:

England and Wales

Citing:

Cited – Lyon v Reed 1844
The court examined the principle of the surrender of a lease by operation of law: ‘. . . all the old cases will be found to depend on the principle to which we have adverted, namely, an act done by or to the owner of a particular estate, the . .
Cited – Springett v Defoe CA 1992
Partners lived together, without being married, as secure joint tenants. They exercised the right to buy, contributing three quarters and one quarter of the price respectively. At the time they intended to marry. They did not discuss he shares, and . .
Cited – Carnarvon v Villebois 1844
The extent of an implied surrender of a lease by operation of law is commensurate with what is necessary to give validity to the transaction which the surrenderer is to be estopped from disputing. . .
Cited – In Re Oatway; Hertslet v Oatway ChD 1903
A trustee put trust money into his bank account and then used some of the funds from that bank account to buy shares. The rest of the money in the account was dissipated, and the shares were worth less than the trust money which had been . .
Cited – The Venture CA 1908
Contributions were made to the purchase price of a yacht.
Held: The court concluded that the contributor was entitled under a resulting trust to a pro rata equitable interest in the yacht. The payments were made at the time the yacht was . .
Cited – Re Vandervell’s Trusts (No 2) ChD 17-Jul-1973
The court considered the requirement that a proposed beneficiary must establish some positive act on the part of the person creating the trust for that person to be bound by the trust asserted. Megarry J said: ‘(1) If a transaction fails to make any . .
Cited – Foskett v McKeown and Others CA 27-Jun-1997
Various people had paid money with the promise of acquiring an interest in land in Portugal. The scheme was fraudulent. The funds had been used to purchase a life/investment policy. The policy was held in trust for the fraudster’s mother but he had . .

Cited by:

Cited – Ealing Family Housing Association Ltd v McKenzie CA 10-Oct-2003
The defendant and his wife separated when she left the flat they shared. She accepted a new tenancy of other premises. The landlord claimed possession of the flat, saying that the tenancy had ended.
Held: There was no express surrender within . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant, Charity

Updated: 05 December 2022; Ref: scu.145980

Shapland v Palmer: CA 23 Mar 1999

The plaintiff’s car was struck by a company car driven by the defendant in the course of her employment and she sought damages. Her action, against the employer, was struck out as late under the 1980 Act. She then commenced an action against the driver defendant.
Held: The plaintiff was allowed to seek the exercise of the court’s discretion. Where a plaintiff in a personal injury action issues against one party, but that claim is dismissed, the court retains the discretion to allow a subsequent claim on similar facts against a different party under the section.
Simon Brown LJ discussed the Walkley case: ‘Lord Wilberforce was there [p. 609 cited above] saying that as a matter of construction the particular prejudice to which the section 33 discretion is directed is that occasioned by the plaintiff not having issued his proceedings within the primary three-year limitation period. Once he has issued his proceedings within that period, then, for whatever reason they have ceased to exist – whether through failure to serve, strike out for want of prosecution, or discontinuance – section 33 simply has no application.
Although Lord Wilberforce observes that any prejudice resulting from the ultimate ineffectiveness of the first proceedings is due rather to the plaintiff’s inaction than to the act (i.e. the proceedings not having being issued in time), this observation seems to me strictly outside the ratio. It is, after all, plain that the section 33 discretion arises notwithstanding a plaintiff’s solicitors’ perhaps far greater negligence in failing ever to have issued proceedings within the primary limitation period in the first place. Indeed, as Lord Diplock expressly recognised in Thompson v Brown [1981] 1 W.L.R. 744, 752 that is an undoubted anomaly arising from the Walkley principle.
I accordingly understand the Walkley principle to exclude from section 33 only actions which involve the same defendant and the same cause of action as was the subject of the earlier, timeous proceedings.’ and ‘The general tendency of those cases, I have no doubt, is to support the plaintiff’s argument. In the first place, they suggest a marked unwillingness on the Court’s part to apply the Walkley case . . . unless it is plainly indistinguishable . . . ‘ and
‘By the same token that the Walkley principle itself rests upon a narrow and somewhat technical construction of section 33, so too it is, in my judgment, possible to escape it on just such grounds. That, moreover, is particularly appropriate given the undoubted anomalies that in any event arise from the application of the principle – most notably, as already pointed out, its failure to impact on cases of perhaps greater negligence where no writ was ever issued in the first place. I would accordingly rule that the section 33 discretion arises in all cases save those which fall four-square within the Walkley principle.’

Judges:

Simon Brown, Waller and Clarke LJJ

Citations:

Times 31-Mar-1999, [1999] EWCA Civ 1061, [1999] 1 WLR 2068, [1999] PIQR P249

Links:

Bailii

Statutes:

Limitation Act 1980 33 11

Jurisdiction:

England and Wales

Citing:

Cited – Walkley v Precision Forgings Ltd HL 1979
The plaintiff tried to bring a second action in respect of an industrial injury claim outside the limitation period so as to overcome the likelihood that his first action, although timeous, would be dismissed for want of prosecution.
Held: He . .
Cited – Forward v Hendricks CA 6-Dec-1996
. .
Cited – Deerness v John R Keeble and Son (Brantham) Ltd HL 1983
The plaintiff suffered very serious injuries as a passenger in a car, and a writ was issued within the three-year period against the driver and the owner of the car whose insurers made a substantial interim payment. The writ was not served, nor . .

Cited by:

Cited – Piggott v Aulton (Deceased) CA 29-Jan-2003
The claimant had issued proceedings against the deceased after his death, but before a personal representative had been appointed. They later discontinued and re-issued against the person appointed by the court to defend the action. The defendant . .
Cited – Barry Young (Deceased) v Western Power Distribution (South West) Plc CA 18-Jul-2003
The deceased had begun an action on becoming ill after exposure to asbestos by the defendant. He withdrew his action after receiving expert evidence that his illness was unrelated. A post-mortem examination showed this evidence to be mistaken. His . .
Cited – Jacqueline Adam v Rasal Ali CA 21-Feb-2006
The defendant sought damages against the defendant for personal injury from his alleged negligence. Her action was struck out and she recommenced the action. The defendant pleaded that she was out of time. The claimant said that the first action . .
Cited – Horton v Sadler and Another HL 14-Jun-2006
The claimant had been injured in a road traffic accident for which the defendant was responsible in negligence. The defendant was not insured, and so a claim was to be made against the MIB. The plaintiff issued proceedings just before the expiry of . .
Lists of cited by and citing cases may be incomplete.

Limitation, Personal Injury

Updated: 05 December 2022; Ref: scu.145976

Phillips (Liquidator of A J Bekhor and Co) and Another v Brewin Dolphin Bell Lawrie Limited and Another: CA 17 Mar 1999

When considering whether a breach went to the root of a contract, an associated contract could be split off, even though it would not be split off for insolvency purposes when asking whether a transaction was at an undervalue.

Judges:

Morritt LJ, Lord Woolf MR

Citations:

Times 30-Mar-1999, [1999] BCC 557, [1999] EWCA Civ 1007, [1999] 1 WLR 2052

Links:

Bailii

Statutes:

Insolvency Act 1986 238

Jurisdiction:

England and Wales

Cited by:

Cited – Feakins and Another v Department for Environment Food and Rural Affairs (Civ 1513) CA 9-Dec-2005
The department complained that the defendants had entered into a transaction with their farm at an undervalue so as to defeat its claim for recovery of sums due. The transaction used the grant of a tenancy by the first chargee.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Contract

Updated: 05 December 2022; Ref: scu.145922

Derry v Ministry of Defence: CA 18 Mar 1999

Where an army doctor was accused of failing to diagnose a serviceman’s ocular cancer, the negligence which caused the consequent injury was caused by the delay in a correct diagnosis, and the treatment fell within the scope of Crown Immunity.

Citations:

Times 30-Mar-1999, Gazette 21-Apr-1999, [1999] EWCA Civ 1016, [1999] PIQR P204

Statutes:

Crown Proceedings Act 1947 10

Jurisdiction:

England and Wales

Citing:

Appeal from – Derry v Ministry of Defence QBD 8-Jun-1998
A military doctor has exemption under Crown Immunity, from liability from his failure to diagnose and treat ocular cancer properly, and the exemption applied even though the medical condition pre-existed the treatment. The cause of action lay in the . .

Cited by:

Cited – Matthews v Ministry of Defence HL 13-Feb-2003
The claimant sought damages against the Crown, having suffered asbestosis whilst in the armed forces. He challenged the denial to him of a right of action by the 1947 Act.
Held: Human rights law did not create civil rights, but rather voided . .
Lists of cited by and citing cases may be incomplete.

Professional Negligence, Personal Injury, Armed Forces

Updated: 05 December 2022; Ref: scu.145931

Pearless De Rougemont and Company v Pilbrow: CA 17 Mar 1999

The defendant had instructed the claimant solicitors to represent him. He had asked to see a solicitor, but had in fact seen an unqualified but very experienced person whose status was not made clear to him. He later refused to pay the bill.
Held: The firm had broken the practice rules. The defendant had contracted for the supply of legal services by a solicitor. Though there was nothing to suggest that he had been disadvantaged by the breach: ‘a firm of solicitors which is asked for a solicitor and, without telling the client that the advisor is not a solicitor, provides an advisor who is not a solicitor should not be entitled to recover anything. ‘ The client should not be obliged to pay the bill.

Citations:

[1999] EWCA Civ 1011, [1999] 2 FLR 139, [1999] 2 Costs LR 109, [1999] 3 All ER 355

Links:

Bailii

Jurisdiction:

England and Wales

Legal Professions, Costs

Updated: 05 December 2022; Ref: scu.145926

Anyanwu and Another v South Bank Students’ Union South Bank University: CA 19 Mar 1999

The applicants sought an extension of time to apply to set aside leave to appeal given to their opponents.
Held: The cause of the respondent seemed weak, but raised a point of law which needed determination and the appeal should be allowed to go ahead.

Judges:

Peter Gibson LJ, Hale LJ

Citations:

[1999] EWCA Civ 1032

Jurisdiction:

England and Wales

Citing:

Cited – Henderson v Henderson 20-Jul-1843
Abuse of Process and Re-litigation
The court set down the principles to be applied in abuse of process cases, where a matter was raised again which should have been dealt with in earlier proceedings.
Sir James Wigram VC said: ‘In trying this question I believe I state the rule . .
Appeal from – Regina v South Bank University ex parte Anyanwu Admn 27-Jun-1996
The university was concerned at the way it saw the students’ union being run, and imposed a constitution which resulted in the claimants being dismissed. The claimants sought judicial review of the imposition of the new constitution, but that was . .
See Also – Anywanwu and Another v South Bank Students Union and others EAT 12-Sep-1997
. .

Cited by:

Leave – Anyanwu and Another v South Bank Students’ Union and Another CA 4-Nov-1999
A university was not acting in a racially discriminatory manner because of the acts of its student union in dismissing two workers after the university had itself expelled them as students. The term ‘knowingly aided’ in the Act was not to be read so . .
Leave – Anyanwu and Another v South Bank Student Union and Another HL 24-May-2001
The university had imposed a new constitution on its students union, which resulted in the dismissal of the claimant. He sought to assert racial discrimination.
Held: The concept of ‘aiding’ somebody in committing discriminatory behaviour . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Discrimination

Updated: 05 December 2022; Ref: scu.145947

Tee v Tee, John Arthur Hillman Co: CA 22 Mar 1999

The wife and her second husband occupied a property in the joint names of herself and of her first husband, who, following their divorce, had applied under the Act of 1973 for a lump sum order reflective of his equal beneficial interest in it to be made against her. Following her remarriage the wife countered with an application under TOLATA for the interest of her first husband in the property to be transferred to herself against a small payment to be made by her to him reflective of the value of what she contended to be only his minor beneficial interest in it. Following a direction that her application under TOLATA be considered at a preliminary stage, a district judge devoted eight days to the enquiry under TOLATA and A further day with the husband’s application under the Act of 1973, concluding that andpound;230,000 should be paid to the first husband in respect of his interest in the property, whether by the wife or, in default, out of the proceeds of its sale.
Held: Parties to a marriage seeking a sale of jointly owned property should proceed under family law not the general civil powers. Where the parties had divorced, and one party had remarried, the procedure remained the same, particularly when, as in this case, the other party had already made and application under the Matrimonial Causes Act. The court took the opportunity to deplore the expensive protracted and bitter nature of the proceedings.

Judges:

The Vice-Chancellor Lord Justice Thorpe Lord Justice Judge

Citations:

Gazette 27-Oct-1999, [1999] EWCA Civ 1056, [1999] 2 FLR 61

Statutes:

Matrimonial Causes Act 1973 24 24A, Trusts of Land and Appointment of Trustees Act 1996 14, Married Women’s Property Act 1882 18

Jurisdiction:

England and Wales

Citing:

See Also – Tee v Tee CA 1974
. .

Cited by:

See Also – Tee-Hillman v Tee and others CA 24-Sep-2002
. .
Cited – Miller Smith v Miller Smith CA 2-Dec-2009
The married couple owned a property as tenants in common. The husband had moved out and, anticipating divorce proceedings, sought an order for the sale of the house citing his inability to sustain the very considerable mortgage payments. The wife . .
Lists of cited by and citing cases may be incomplete.

Family, Trusts

Updated: 05 December 2022; Ref: scu.145971

Viskase Limited and Viskase (UK) Limited v Paul Kiefal Gmbh: CA 19 Mar 1999

Appeal from refusal of requests to stay the action on two grounds. First, that under the Civil Jurisdiction and Judgment Acts 1952 which gives effect to the Brussels Convention the English court has no jurisdiction to hear it. Secondly, because each of the contracts under which the plaintiffs sue contains an exclusive jurisdiction clause in favour of a court in Germany.

Citations:

[1999] EWCA Civ 1045, [1999] 1 WLR 1305, [2000] ILPr 29, [1999] CLC 957

Links:

Bailii

Jurisdiction:

England and Wales

Jurisdiction, Intellectual Property

Updated: 05 December 2022; Ref: scu.145960

Howard and others v Kinvena Homes Limited: CA 19 Mar 1999

Application for leave to appeal – granted.

Citations:

[1999] EWCA Civ 1037

Statutes:

Mobile Homes Act 1983

Jurisdiction:

England and Wales

Citing:

Cited – Stroud v Weir Associates CA 1987
The court was asked to set pitch fees on a registered mobile home site. The site owner had sought to rely upon the fact of the order which cut from 15 per cent to 10 per cent the maximum commission chargeable by a site owner on an occupier’s . .

Cited by:

Appeal from – Howard and others v Kinvena Homes Ltd CA 27-Jun-1999
An owner of a park for mobile homes increased the rent to allow for loss of profits after the home owners began to buy their liquid gas from other sources. He showed that profits from such sales were part of the normal profit structure of such parks . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 05 December 2022; Ref: scu.145952

Oliver Ashworth (Holdings) Limited v Ballard (Kent) Limited: CA 18 Mar 1999

In order for the landlord to claim double rent where a tenant held over unlawfully after the tenancy was determined, the landlord must not do anything to indicate that the lease might be continuing, for example by denying the validity of break clause. In construing an Act, regard must be had to the whole of the Act; and where the Act is to be read with another as constituting a code devised by Parliament to achieve a distinct purpose, regard must be had to the other Act as well.
Held: In favour of the appellants, ‘on the distinct basis that the right to double rent conferred by s. 18 of the Act of 1737 only arises where (a) the tenant holding over after his own notice to quit is in fact a trespasser (thus, the notice must be valid), and (b) the landlord treats him as such.’ and (obiter) The principle that a party to litigation cannot ‘approbate and reprobate’ (or ‘blow hot and cold’) does sometimes curtail that party’s theoretical freedom to plead wholly inconsistent cases as alternatives . . ..It seems to me at least arguable that by demanding and suing for rent the landlord was unequivocally treating the tenant as not being a trespasser, and that the subsequent amendment of the statement of claim to plead an alternative and inconsistent case should not be allowed to operate retrospectively so as to make the tenant’s occupation unlawful . . ..I would regard it as an unfair result if in the circumstances of this case the tenant were liable to pay double rent under the 1737 Act as a trespasser in respect of a period when the landlord was, in correspondence and in pleadings, vigorously contending that the tenant was not a trespasser.

Judges:

Robert Walker LJ

Citations:

Gazette 21-Apr-1999, Times 01-Apr-1999, [1999] EWCA Civ 1027, [2000] Ch 12, [1999] 2 All ER 791

Statutes:

Distress for Rent Act 1737 (II Geo 2, c 19) 18,, Landlord and Tenant Act 1730

Jurisdiction:

England and Wales

Citing:

Cited – Timmins v Rowlison 1764
The 1730 and 1737 Acts should be read together to form one consistent scheme. ‘Statutes in pari materia are to be all taken as one system to suppress the mischief… The Legislature, in [the 1730 Act] made a provision where the landlord gives . .
Cited – Doe Ex Dim Cheny v Batten 13-Feb-1775
The tenant gave notice to quit but failed to leave the premises by the due date (Michaelmas). The landlord sued for ejectment, but then accepted a quarter’s rent (due at Christmas). Did this create a new tenancy?
Held: The issue depended on . .
Cited – United Australia Ltd v Barclays Bank Ltd HL 1940
A person whose goods were wrongfully converted by another had a choice of two remedies against the wrongdoer. He could recover damages, in respect of the loss he had sustained by the conversion, or he could recover the proceeds of the conversion . .
Cited – Kleinwort Benson Ltd v Lincoln City Council etc HL 29-Jul-1998
Right of Recovery of Money Paid under Mistake
Kleinwort Benson had made payments to a local authority under swap agreements which were thought to be legally enforceable when made. Subsequently, a decision of the House of Lords, (Hazell v. Hammersmith and Fulham) established that such swap . .
Cited – Mannai Investment Co Ltd v Eagle Star Assurance HL 21-May-1997
Minor Irregularity in Break Notice Not Fatal
Leases contained clauses allowing the tenant to break the lease by serving not less than six months notice to expire on the third anniversary of the commencement date of the term of the lease. The tenant gave notice to determine the leases on 12th . .
Cited – Personal Representatives of Tang Man Sit v Capacious Investments Ltd PC 18-Dec-1995
The claimant, Capacious Investments Ltd, brought proceedings against Tang’s estate for damages for the loss of use and occupation, and also an account of profits and damages for loss and damage incurred, for example by encumbering the property with . .
Cited – Hankey v Clavering CA 1942
A lease term ran for 21 years from 25 December 1934. A break clause gave either party the right to determine the lease at the expiration of the first seven years, by six calendar months’ notice. The landlord gave notice to the tenant’s solicitors in . .
Cited – Motor Oil Hellas (Corinth) Refineries SA v Shipping Corporation of India (The Kanchenjunga) HL 1990
A ship was caught in harbour when an air raid broke out. The master took the ship to sea where it suffered damage.
Held: The shipowners were protected by a war risks clause in the charterparty agreement. As to waiver by election, Lord Goff of . .
Cited – China National Foreign Trade Transportation Corporation v Evlogia Shipping Co SA of Panama (The Mihalios Xilas) HL 1979
A hire clause was in bespoke terms providing for withdrawal ‘in default of payment’. The payment of hire for the final instalment was deficient because, as the umpire held, the charterers’ deductions for the length of the final voyage and bunkers on . .
Cited – Dendy v Nicholls 1858
For a landlord to demand and sue for rent, when he knew of facts entitling him to forfeit the lease, amounted to waiver of forfeiture and prevented him from bringing a later action for ejectment. Referring to Jones v Carter: (Crowder J) ‘Here, there . .
Cited – Jones v Carter 1846
The landlord served a declaration in ejectment from the premises.
Held: The service operated as a forfeiture, and a final election to determine the lease, and it was not possible for the landlord later to demand rent. ”After such an act, by . .
Cited – Johnstone v Hudlestone 1825
Where a tenant gave an invalid notice to quit, which accordingly did not have effect to determine the tenancy, upon his holding over after the notice was given the landlord was not entitled to double rent under s. 18. (Bayley J) ‘I think that the . .
Cited – Lissenden v CAV Bosch Ltd HL 1940
The defendant attempted to bar the workman plaintiff from appealing a compensation award on the ground that he had already accepted payment under it.
Held: The House considered the principle that a party may not blow hot and cold on an issue . .
Cited – Attorney-General v Prince Earnest Augustus of Hanover HL 1957
‘legislative antecedents’ may in some circumstances constitute relevant background for the interpretation of statutes in pari materia. Words in a preamble cannot of themselves restrict the scope of enacting words, where the latter are wider or more . .
Cited – Kammins Ballrooms Co Limited v Zenith Investments (Torquay) Limited HL 1970
The tenant had served his section 26 notice under the 1954 Act, but then began the court proceedings before the minumum two month period had expired. The landlord did not take the point at first, and delivered an answer and negotiated compensation. . .
Cited – Central Estates (Belgravia) Ltd v Woolgar (No 2) CA 20-Jun-1972
Right to forfeit waived by rent demand
The landlords’ managing agents learned that the tenant had been convicted of keeping a brothel at the premises and served a section 146 notice intending to forfeit the tenancy. He told his staff and instructed them not to demand or accept rent. But . .
Cited – China National Foreign Trade Transportation Corporation v Evlogia Shipping Co SA of Panama (The Mihalios Xilas) HL 1979
A hire clause was in bespoke terms providing for withdrawal ‘in default of payment’. The payment of hire for the final instalment was deficient because, as the umpire held, the charterers’ deductions for the length of the final voyage and bunkers on . .
Cited – Johnson v Agnew HL 1979
The seller had obtained a summary order for specific performance of a contract for the sale of land against the buyer.
Held: The breach was continuing and was still capable of being remedied by compliance with the order for specific . .
Cited – Cutting v Derby 1776
‘The statutes of [1730] and [1737] being in pari materia ought to have the same construction’. . .
Cited – Peyman v Lanjani CA 1985
Application was made for consent to assign a lease. The court was asked whether or not the purchaser of a leasehold interest in a property, who had elected to affirm the contract despite a repudiatory breach by the vendor, could be held to his . .
Cited – Express Newspapers v News (UK) plc 1990
If summary judgment is given to one party on his claim, it must also be given on a counterclaim made on the same basis by the defendant. The principle that a party to litigation cannot ‘approbate and reprobate’ (or ‘blow hot and cold’) can curtail a . .

Cited by:

Cited – Shaws (EAL) Ltd v Pennycook CA 2-Feb-2004
Tenant’s First Notice to terminate, stood
The landlord served a notice to terminate the business lease. The tenant first served a notice to say that it would not seek a new lease, but then, and still within the time limit, it served a second counter-notice seeking a new tenancy. The . .
Cited – John Roberts Architects Ltd v Parkcare Homes (No. 2) Ltd TCC 25-Jul-2005
The defendant had taken a dispute to adjudication, but then abandoned those proceedings, upon which the adjudicator awarded costs against the defendant which the claimant now sought to enforce. The defendant argued that the award was outside the . .
Cited – Bolton Metropolitan Borough Council v Municipal Mutual Insurance Ltd CA 6-Feb-2006
The deceased had come into contact with asbestos when working on building sites for more than one contractor. The claimant here sought contribution from the defendants for the damages it had paid to his estate. The issue was as to liability on . .
Lists of cited by and citing cases may be incomplete.

Landlord and Tenant

Updated: 05 December 2022; Ref: scu.145942

Schultz v Esso Petroleum Company Limited: CA 18 Mar 1999

The complainant had been dismissed after a protracted period of sickness. He appealed but said he would submit only written submissions. Some nine months later, he claimed unfair dismissal, saying his delay in applying arose from attempts to negotiate a settlement. ‘Reasonably practicable’ meant more than just physically so capable. The surrounding circumstances could include continuing negotiations.

Citations:

Gazette 29-Sep-1999, (1999) IRLR 488, [1999] EWCA Civ 1015, [1999] 3 All ER 338, [1999] 3 All ER 338

Links:

Bailii

Jurisdiction:

England and Wales

Employment

Updated: 05 December 2022; Ref: scu.145930

V-B (Minors) (Abduction: Custody Rights): CA 17 Mar 1999

Rights of custody are to be distinguished from mere rights of access.

Citations:

[1999] EWCA Civ 1013, [1999] 2 FLR 192

Statutes:

Hague Convention on the Civil Aspects of International Child Abduction 1980 5(a), Child Abduction and Custody Act 1985

Jurisdiction:

England and Wales

Cited by:

Cited – In re D (A Child), (Abduction: Rights of Custody) HL 16-Nov-2006
The child had been born to parents who married and later divorced in Romania. The mother brought him to England without the father’s consent, and now appealed an order for his return.
Held: The mother’s appeal succeeded. The Convention . .
Lists of cited by and citing cases may be incomplete.

Children

Updated: 05 December 2022; Ref: scu.145928

Plumb v Ayres and Ryford Limited: CA 17 Mar 1999

Appeals in personal injury cases against a judge’s finding on liability are very unlikely to succeed, and in future, leave to appeal should only be given where there is a clear evidence that the judge had made an error of principle. However, Brook LJ said, exceptional circumstances may arise where the judge erred in principle, misapprehended the facts or he is clearly shown to have been wrong.

Judges:

Brooke LJ

Citations:

Times 11-May-1999, [1999] EWCA Civ 1010

Links:

Bailii

Jurisdiction:

England and Wales

Cited by:

Cited – Wells v Mutchmeats Ltd and Another CA 28-Feb-2006
. .
Cited – Whitehead v Bruce and Others CA 21-Mar-2013
The three defendants each appealed against apportionment of liability for serious personal injuries incurred in a road traffic accident. The first defendant a motor cycle driver, with the claimant his pillion passenger took suddent action to evade a . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Litigation Practice

Updated: 05 December 2022; Ref: scu.145925

Hussain v Elonex Plc: CA 17 Mar 1999

The claimant appealed against a finding that he had not been unfairly dismissed. He said that the procedure adopted had been unfair, since he had not had opportunity to see the statements provided to his employer by independent witnesses of the incident under complaint.
Held: It can be enough in a disciplinary case for an employee to know the gist of the case against him and in such cases it may not infringe the principles of fairness to fail to provide the detailed evidence: ‘The question in a case of dismissal for misconduct such as this is whether there has been a fair and reasonable investigation of the alleged misconduct before a decision is made to dismiss or not to dismiss. In this case there was no contractual requirement that a particular procedure should be followed, other than it should be fair. There is no universal requirement of natural justice or general principle of law that an employee must be shown in all cases copies of witness statements obtained by an employer about the employee’s conduct. It is a matter of what is fair and reasonable in each case. ‘

Judges:

Mummery LJ

Citations:

[1999] EWCA Civ 1009, [1999] IRLR 420

Links:

Bailii

Statutes:

Employment Protection (Consolidation) Act 1978 57(3)

Jurisdiction:

England and Wales

Citing:

Appeal from – Hussain v Elonex Plc EAT 25-Apr-1996
. .
Mentioned – Linfood Cash and Carry v Thomson EAT 1989
One employee had informed his employer that a fellow employee had stolen two books of credit notes. He refused to allow his identity to be disclosed for fear of reprisals. The Tribunal had held that the dismissal was unfair because although the . .
Cited – Louies v Coventry Hood and Seating Co EAT 1990
An employer’s dismissal procedure need not be prima facie unfair if the employee was not permitted to know the contents of statements on which the employer would rely in taking a decision to dismiss or confirm a previous dismissal. Wood J said: ‘It . .
Cited – Bentley Engineering Co Ltd v Mistry EAT 1978
In employment disciplinary proceedings, natural justice required that a man should have a chance to state his own case and to know sufficiently what was being said against him, so that he could put forward his own case properly.
Slynn J said: . .

Cited by:

Cited – A v B EAT 14-Nov-2002
The claimant worked as a residential social worker. Allegations were made against him of inappropriate behaviour with a child. The girl’s allegations varied. A criminal investigation took place but insufficient evidence was found. The investigation . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 December 2022; Ref: scu.145924

Regina v Bristol City Council ex parte Everett: CA 26 Feb 1999

A steep staircase in a house which might lead to an accident was not because of that fact a statutory nuisance. It was not directly prejudicial to health as required by the Act for liability.

Citations:

Times 09-Mar-1999, Gazette 31-Mar-1999, Gazette 10-Mar-1999, [1999] EWCA Civ 869, [1999] 1 WLR 1170, (1999) 31 HLR 1102, [1999] Env LR 587

Links:

Bailii

Statutes:

Environmental Protection Act 1990 Part III

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Bristol City Council ex parte Everett Admn 13-May-1998
The risk of an accident from a steep staircase to a disabled tenant was not a statutory nuisance. The possibility of an accident is not the same as a source of injury to health. Buxton LJ: ‘The limitation of the reach of this Statute to disease and . .
Appeal from – Regina v Bristol City Council ex parte Everett Admn 13-May-1998
The risk of an accident from a steep staircase to a disabled tenant was not a statutory nuisance. The possibility of an accident is not the same as a source of injury to health. Buxton LJ: ‘The limitation of the reach of this Statute to disease and . .

Cited by:

Cited – Regina v Bristol City Council ex parte Everett Admn 13-May-1998
The risk of an accident from a steep staircase to a disabled tenant was not a statutory nuisance. The possibility of an accident is not the same as a source of injury to health. Buxton LJ: ‘The limitation of the reach of this Statute to disease and . .
Appealed to – Regina v Bristol City Council ex parte Everett Admn 13-May-1998
The risk of an accident from a steep staircase to a disabled tenant was not a statutory nuisance. The possibility of an accident is not the same as a source of injury to health. Buxton LJ: ‘The limitation of the reach of this Statute to disease and . .
Lists of cited by and citing cases may be incomplete.

Housing, Nuisance

Updated: 05 December 2022; Ref: scu.145784

Davies v Davies: CA 4 Mar 1999

The marriage was unhappy. The wife consulted briefly but did not instruct a solicitor, Mr Tooth. Some 7 years later as divorce proceedings were considered, the husband did instruct Mr Tooth. She sought to prevent him acting, but then wanted to withdraw her summons. The husband would only agree if she paid the costs. She refused.
Held: The summons was quite properly issued. There was a real matter to be considered. The point of view of the petitioner wife was put forward moderately it seems to me. It was met with a very strong rebuff which indicated that, come what may, the respondent husband was going to seed the dismissal of the matter with costs. There remained a real and not just fanciful risk of conflict. The husband’s appeal against the costs order failed.

Citations:

[1999] EWCA Civ 890

Jurisdiction:

England and Wales

Citing:

Cited – In Re A Firm of Solicitors ChD 9-May-1995
A solicitor moving from a firm acting on one side of a dispute to the firm on the other side must be able to show that no conflict of interest would arise. The court should intervene unless it is satisfied that there is no risk of disclosure. It . .
Cited – Prince Jefri Bolkiah v KPMG (A Firm) HL 16-Dec-1998
Conflicts of Duty with former Client
The House was asked as to the duties of the respondent accountants (KPMG). KPMG had information confidential to a former client, the appellant, which might be relevant to instructions which they then accepted from the Brunei Investment Agency, of . .
Cited – RTZ Pension Property Trust Ltd v ARC Property Developments Ltd and Asfa Limited CA 26-Nov-1998
Where a plaintiff discontinued his action, but still sought costs from the defendant, he had to show some misconduct by the defendant, such as encouraging the action by concealment of a defence. A mere late amendment causing no loss was not . .
Lists of cited by and citing cases may be incomplete.

Family, Legal Professions

Updated: 05 December 2022; Ref: scu.145805

Cliffe and Another v Forrester (No 2): CA 4 Mar 1999

The defendant requested access to the plaintiff’s property to measure movement, as part of associated litigation, involving a negligent survey by the defendants. The plaintiffs claimed the building was beyond repair and required to be demolished.
Held: The monitoring could have been carried out before. Decisions had already been made which would make the monitoring irrelevant, and permission was refused.

Judges:

Lord Justice Brooke

Citations:

[1999] EWCA Civ 898

Jurisdiction:

England and Wales

Litigation Practice

Updated: 05 December 2022; Ref: scu.145813

Hougie v Kranat: CA 11 Mar 1999

The plaintiff applied for an extension of time to file her appeal having been given leave ex parte. The defendant opposed the application. She had been awarded damages for wrongful eviction, but the level of damages awarded had been less than the sum paid in by the defendant, and so she was liable in costs. She said that the court had not taken account of a painting removed by the defendant. Her solicitors had been at fault in calculating the day on which the appeal had to be filed.
Held: Leave to file the appeal out of time was given. The delay was trivial, and there had been no prejudice arising from it.

Judges:

Peter Gibson, Auld LJJ

Citations:

[1999] EWCA Civ 958

Jurisdiction:

England and Wales

Citing:

See Also – Hougie v Kranat CA 26-Nov-1998
The plaintiff sought leave to appeal against the level of damages awarded to her in her claim for wrongful eviction, and against the costs award made after the award had failed to meet the amount paid into court. She said that by omitting a painting . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice, Costs

Updated: 05 December 2022; Ref: scu.145873

Budd v Colchester Borough Council: CA 3 Mar 1999

A nuisance notice, requiring a householder to remove a nuisance caused by barking dogs, need not specify the manner in which the nuisance was to be abated, or the degree of reduction which would be acceptable. There was no necessary implication that any works were required. A local authority properly served a simple notice requiring abatement of a nuisance found of a dog barking. It had no general duty to specify the steps required to be undertaken to abate the nuisance save in circumstances where this was clearly required. ‘The local authority does have a choice of merely requiring a result in a particular case. Whether that will give rise to a ground of appeal other than the one with which we are currently concerned, namely that there is an informality, defect, or error in the notice, is an entirely separate matter. There may well be argument about alternative requirements or a whole variety of other matters. We are not concerned with that. . . . In a case such as the present, dealing with barking dogs, there is no necessity, either in setting out the nuisance to indicate the levels of barking which the dogs have exhibited so as to constitute a nuisance, or the precise times when they have been barking so as to constitute a nuisance, or in requiring the abatement of the nuisance, for the nuisance to specify precisely what has to be done about the nuisance.’

Judges:

Schiemann L.J

Citations:

Gazette 10-Mar-1999, Times 14-Apr-1999, Gazette 24-Mar-1999, [1999] EWCA Civ 885, (1997) Env LR 128

Statutes:

Environmental Protection Act 1990 80(1)

Jurisdiction:

England and Wales

Citing:

Cited – Regina v Wheatley 1885
If the magistrates think it necessary for things to be done to abate a nuisance they must specify them in their order. When failure to comply with an order will constitute a criminal offence this should cause no surprise. . .
Cited – McGillivray v Stephenson 1950
The court upheld a notice requiring a person to abate a nuisance constituting stinking pigs, which said ‘and for that purpose to remove the whole of the pigs from the premises, clear up the effect of their past presence, and cease for the future to . .
Cited – Millard v Wastall 1898
The emission of black smoke from a factory chimney was a nuisance.
Held: When considering an order for the abatement of a nuisance, if the Justices considered it was necessary for things to be done to abate the nuisance, they had normally to . .
Appeal from – Budd v Colchester Borough Council QBD 1996
This was a dog-barking case in which the Court had to consider an abatement notice. It was argued that a notice which did not specify the level of barking which constituted the nuisance and which did not specify precisely what was to be done to . .

Cited by:

Appeal heard – Budd v Colchester Borough Council CA 30-Jan-1997
The applicant sought leave to appeal against a decision confirming a noise abatement notice under the Act. He kept dogs, and neighbours had complained of the noise. He complained that the notice neither specified the nuisance complained of, nor . .
Lists of cited by and citing cases may be incomplete.

Nuisance

Updated: 05 December 2022; Ref: scu.145800

Toumia v Evans (Secretary General of the Prison Officers Association: CA 12 Mar 1999

A prisoner had an arguable case for false imprisonment against a prison officers union who advocated industrial action resulting in him being locked in his cell for much longer than normal. A judge was wrong to hear an appeal without notifying the parties.

Citations:

Times 01-Apr-1999, [1999] EWCA Civ 965

Jurisdiction:

England and Wales

Cited by:

Cited – Prison Officers Association v Iqbal CA 4-Dec-2009
The claimant, a prisoner, alleged false imprisonment. The prison officers had taken unlawful strike action leaving him to be confined within his cell and unable to be involved in his normal activities. In view of the strike, a governor’s order had . .
Lists of cited by and citing cases may be incomplete.

Torts – Other

Updated: 05 December 2022; Ref: scu.145880

Regina v Secretary of State for Home Department ex parte Dinc: CA 15 Mar 1999

When deciding whether to order a deportation, the Home Secretary will have much material not before the courts, including as to conditions in the place to which the applicant might be deported), and he is better placed to take a wider policy-based view on the key question as to whether removal can be justified as ‘necessary in the interests of a democratic society’.

Citations:

[1999] INLR 256, [1999] EWCA Civ 990

Jurisdiction:

England and Wales

Citing:

Appeal from – Regina v Secretary of State for Home Department ex parte Ali Dinc Admn 3-Apr-1998
The applicant had been sentenced to five years imprisonment for possession of heroin with intent to supply.
Held: In making the decision whether under the Immigration Rules, a deportation order should be made, the Secretary of State was . .

Cited by:

Cited – M v the Secretary of State for the Home Department CA 19-Feb-2003
The applicant had been given indefinite leave to remain in England, but was later convicted of indecent assault, and recommended for deportation. On appeal the court said that the order for deportation was disproportionate. After serving his . .
Lists of cited by and citing cases may be incomplete.

Immigration, Criminal Sentencing, Human Rights

Updated: 05 December 2022; Ref: scu.145905

Paragon Finance Plc (Formerly Known As National Home Loans Corporation Plc); etc v Freshfields (a Firm): CA 11 Mar 1999

A client who sues his former solicitor, waives his legal privilege protection, as regards that legal relationship, but that does not require a waiver also, of other privilege with later solicitors instructed in related matters. Lord Bingham LCJ said: ‘A client expressly waives his legal privilege when he elects to disclose communications which the privilege would entitle him not to disclose. Where the disclosure is partial, issues may arise on the scope of the waiver . . While there is no rule that a party who waives privilege in relation to one communication is taken to waive privilege in relation to all, a party may not waive privilege in such a partial and selective manner that unfairness or misunderstanding may result.’
. . and ‘When a client sues a solicitor who has formerly acted for him, complaining that the solicitor has acted negligently, he invites the court to adjudicate on questions directly arising from the confidential relationship which formerly subsisted between them. Since court proceedings are public, the client brings that formerly confidential relationship into the public domain. He thereby waives any right to claim the protection of legal professional privilege in relation to any communication between them so far as necessary for the just determination of his claim; or, putting the same proposition in different terms, he releases the solicitor to that extent from the obligation of confidence by which he was formerly bound. This is an implication of law, the rationale of which is plain. A party cannot deliberately subject a relationship to public scrutiny and at the same time seek to preserve its confidentiality. He cannot pick and choose, disclosing such incidents of the relationship as strengthen his claim for damages and concealing from forensic scrutiny such incidents as weaken it. He cannot attack his former solicitor and deny the solicitor the use of materials relevant to his defence. But, since the implied waiver applies to communications between client and solicitor, it will cover no communication to which the solicitor was not privy and so will disclose to the solicitor nothing of which he is not already aware.’
As to Hayes v Dowding, he said: ‘We need not linger on Hayes v. Dowding [1996] PNLR 578, a case in which the plaintiffs were held to have impliedly waived their right to legal professional privilege by bringing proceedings even though the proceedings were not against any legal adviser. In reaching that conclusion the judge relied heavily on Australian and United States authority. Neither party before us sought to contend that this case was correctly decided, and we are satisfied that it was not. The authorities on which the judge principally relied do not represent the law of this country, and the decision must be overruled.’

Judges:

Lord Bingham LCJ

Citations:

Times 22-Mar-1999, Gazette 19-May-1999, [1999] EWCA Civ 955, [1999] 1 WLR 1183, [2000] CP Rep 81

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Hayes v Dowding 1996
Disputes over the running of a private company had been compromised by the plaintiffs’ solicitors. The plaintiffs sought to upset the compromise on the basis that they had been induced by a misrepresentation. The Defendants sought disclosure of . .
Cited – X Corporation v Y 16-May-1997
Legal professional privilege might be taken to be waived if it would be unfair to allow a client to maintain it. . .

Cited by:

Cited – British American Tobacco (Investments) Ltd v United States of America CA 30-Jul-2004
The claimant appealed an order for its London solicitor to be examined in connection with proceedings in the US.
Held: A court should not make an order which was superfluous. The witness had now given his evidence. However, the foreign . .
Cited – Fulham Leisure Holdings Ltd v Nicholson Graham and Jones ChD 14-Feb-2006
The defendant solicitors were being sued for professional negligence. The claimants had taken legal advice after termination of the retainer which led to the present action, and sought to rely upon part of counsel’s opinion. The defendants sought . .
Cited – Farm Assist Ltd v Secretary of State for Environment Food and Rural Affairs TCC 12-Dec-2008
The claimant, now in liquidation, sought to have set aside for economic duress the mediated settlement of its dispute with the defendant. The defendant sought disclosure of legal and similar advice given to the claimant.
Held: Paragon Finance . .
Lists of cited by and citing cases may be incomplete.

Legal Professions

Updated: 05 December 2022; Ref: scu.145870

James v Williams: CA 8 Mar 1999

A beneficiary under an intestacy, who tried to position himself as owner of assets in the estate, became a constructive trustee of those assets, with or without letters of administration, and accordingly the claim for the return of the land was not time-barred. ‘Parliament, wittingly or unwittingly has drawn a distinction between personal representatives and executors on the one hand who are trustees and Executors de ses torts who are not.’ ‘a constructive trust attaches by law to property which is held by a person in circumstances where it would be inequitable to allow him to assert full beneficial ownership of the property.’

Judges:

The President Sir Stephen Brown Lord Justice Swinton Thomas Lord Justice Aldous

Citations:

Times 13-Apr-1999, Gazette 14-Apr-1999, Gazette 28-Apr-1999, [1999] EWCA Civ 921

Statutes:

Limitation Act 1980 15(1)

Jurisdiction:

England and Wales

Wills and Probate, Limitation, Trusts

Updated: 05 December 2022; Ref: scu.145836

Manchester Airport Plc v Dutton; Longmire; Stoddard; Maile and Persons Unknown: CA 4 Mar 1999

The claimant wished to construct a new runway on its own land, and it was necessary to carry out works, namely, that trees on nearby land should be lopped or felled so that they would not constitute an obstruction to the flight path. The claimant had been granted a licence by the National Trust to enter and occupy this land for these purpose. The purpose for which the licence is granted is to enable the works agreed between the parties . . to be carried out. The Defendants objected to what was proposed and, without any licence from anyone, set up encampments on the land so as to make it difficult or impossible to lop and fell the trees. The Claimants started possession proceedings under RSC Order 113.
Held: A temporary stay was granted. A licensee, prevented by the acts of a squatter from exercising the rights of occupation, given by the licence, was entitled to apply for possession even though he himself might not be in occupation under the licence.
Chadwick LJ said: ‘possession is synonymous . . with exclusive occupation – that is to say occupation (or a right to occupy) to the exclusion of all others, including the owner or other person with superior title.’

Judges:

Chadwick, Laws LJJ

Citations:

Gazette 03-Mar-1999, Times 05-Mar-1999, Gazette 17-Mar-1999, [1999] EWCA Civ 897, [2000] 1 QB 133

Jurisdiction:

England and Wales

Citing:

See Also – Manchester Airport Plc v Dutton and others CA 18-Jan-1999
. .
See Also – Manchester Airport Plc v Dutton and others CA 23-Feb-1999
The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence . .

Cited by:

Cited – Countryside Residential (North Thames) Ltd v Tugwell CA 4-Apr-2000
A company was granted a licence to enter on land, for surveys and technical investigations, with a view eventually to its purchase. The land was occupied by protesters, and the company sought an injunction to exclude them. It was held that the . .
Cited – Alamo Housing Co-operative Ltd v Meredith and others CA 4-Apr-2003
The local authority had let a row of houses to the claimant who then sublet the individual houses to the defendant tenants. The authority obtained possession under the head lease for redevelopment, but the tenants resisted giving possession, saying . .
Cited – Secretary of State for Environment, Food, and Rural Affairs v Meier and Others SC 1-Dec-2009
The claimant sought a possession order to recover land from trespassers. The court considered whether a possession order was available where not all the land was occupied, and it was feared that the occupiers might simply move onto a different part. . .
Cited – Clarence House Ltd v National Westminster Bank Plc CA 8-Dec-2009
The defendant tenants, anticipating that the landlord might delay or refuse consent to a subletting entered into a ‘virtual assignment’ of the lease, an assignment in everything but the deed and with no registration. The lease contained a standard . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.145812

Dale v Michelin Tyre Plc: CA 3 Mar 1999

Citations:

[1999] EWCA Civ 886

Statutes:

Limitation Act 1980 33

Jurisdiction:

England and Wales

Citing:

Cited – Coad v Cornwall and Isles of Scilly Health Authority CA 17-Jul-1996
A nurse suffered a back injury in 1983 in the course of her employment. She left the employment of the health authority in either 1990 or 1991. The judge had accepted her evidence that she did not know that she had a right of action against her . .
Lists of cited by and citing cases may be incomplete.

Personal Injury, Limitation

Updated: 05 December 2022; Ref: scu.145801

Regina v Commissioners of Customs and Excise ex parte Lunn Poly Limited and Bishopsgate Insurance Limited: CA 26 Feb 1999

A tax on holiday insurance premiums which differentiated between policies sold by independent insurance brokers and those sold by travel agents was unlawful in European law, constituting state aid without the appropriate notice having been given.

Citations:

Times 11-Mar-1999, Gazette 31-Mar-1999, [1999] EWCA Civ 867

Statutes:

EC Treaty Art 92

Jurisdiction:

England and Wales

European, Insurance, Customs and Excise, Taxes – Other

Updated: 05 December 2022; Ref: scu.145782

Surzur Overseas Ltd v Koros and others: CA 25 Feb 1999

A defendant to a worldwide Mareva injunction had failed to give full disclosure of all his assets in an affidavit filed with the court. False evidence as to sale of the assets in question was later manufactured and placed before the court. The plaintiffs claimed damages against the defendants and others. The claim was characterised as a conspiracy to injure the plaintiffs by a number of unlawful means, those unlawful means including the giving of false evidence before the court.
Held: The strike out request was refused. The conspiracy had a broader objective and was not brought simply in respect of evidence given. Accordingly, the appeal was allowed.
Waller LJ referred to Lord Morris in Roy v Prior as to its conclusion in relation to witness immunity,and added: ‘It also seems to me that what the above demonstrates is that it is not permissible to divide allegations up as Mr Schaff sought to do into those that involve giving evidence and those which do not.’ and: ‘In my view the statement of Lord Morris is capable of two interpretations, on either of which the plaintiffs, on the pleaded facts, will not be defeated by the witness immunity rule. On the first interpretation his statement should not be read simply as saying that malicious arrest or malicious prosecution alone are exceptions to the witness immunity rule. His statement, in my view, supports a broader proposition that if the action is not brought simply in respect of evidence given or supplied but is brought in relation to some broader objective during the currency of which it may well be that evidence was given witness immunity should not apply.’

Judges:

Waller LJ, Hirst and Aldous LJJ

Citations:

[1999] 2 LLR 616, [1999] EWCA Civ 863, [1999] CLC 801, [1999] 2 Lloyds Rep 611

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .

Cited by:

Cited – Mahonia Limited v JP Morgan Chase Bankwest Lb Ag QBD 3-Aug-2004
The Claimant claimed on a letter of credit issued by the Defendant on behalf of Enron Ltd, who asserted it was not liable to pay there having been unlawful behaviour by Enron Ltd. Swap agreements had been entered into, and the defendant said the . .
Cited – Walsh v Staines and others ChD 26-Jul-2007
The defendants applied to strike out a claim based on an allegation of a fraudulent deceit and conspiracy in earlier proceedings between the parties. It was said that the defendant solicitors had represented that their client had funds to support an . .
Cited – Total Network Sl v Revenue and Customs HL 12-Mar-2008
The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Lists of cited by and citing cases may be incomplete.

Torts – Other, Jurisdiction

Updated: 05 December 2022; Ref: scu.145778

Matra Communication SAS v Home Office: CA 25 Feb 1999

In the absence of comparable situations, a member state is entitled to choose the time limits within which a public service contract is to be challenged, provided only that it did not make it impossible to challenge and there was no prejudice against non-nationals.
Damages under the Remedies Directive 89/665/EEC were not subject to the Norbrook (Francovich) conditions.
The ‘damages provided by domestic law remain damages on the basis envisaged by Directive (89/665/EEC); but regulation 32(5)(b)(ii) none the less thereby creates a private law, non-discretionary, remedy, because within the national legal order any remedy in damages necessarily has those qualities’.

Citations:

Times 08-Mar-1999, Gazette 08-Apr-1999, [1999] 1 WLR 1646, [1999] EWCA Civ 860, [1999] 1 CMLR 1454

Links:

Bailii

Statutes:

Council Directive 92/50/EC (OJ 1992 I209/1) on co-ordination of systems for awarding public service contracts

Jurisdiction:

England and Wales

Citing:

Cited – Norbrook Laboratories v Ministry of Agriculture, Fisheries and Food ECJ 2-Apr-1998
ECJ Directives 81/851/EEC and 81/852/EEC – Veterinary medicinal products – Marketing authorisation . .

Cited by:

Cited – Phonographic Performance Limited v Department of Trade and Industry HM Attorney General ChD 23-Jul-2004
The claimant represented the interests of copyright holders, and complained that the defendant had failed to implement the Directive properly, leaving them unable properly to collect royalties in the music rental market. The respondent argued that . .
Disapproved – Nuclear Decommissioning Authority v Energysolutions EU Ltd (Now Called ATK Energy EU Ltd) SC 11-Apr-2017
This is an appeal on preliminary points of European Union and domestic law regarding the circumstances in which damages may be recoverable for failure to comply with the requirements of the Public Procurement Directive (Parliament and Council . .
Lists of cited by and citing cases may be incomplete.

European

Updated: 05 December 2022; Ref: scu.145775

Chohan v Times Newspapers Ltd: CA 25 Feb 1999

Citations:

[1999] EWCA Civ 857

Jurisdiction:

England and Wales

Citing:

See Also – Chohan v Times Newspapers Limited; Singh and Choudry (a Firm) and Choudry CA 4-Dec-1998
. .

Cited by:

See Also – Times Newspapers Ltd v Chohan CA 22-Jun-2001
The limitation period on collection of an award of costs, must run from the date of the costs certificate. It was only at that point when it became enforceable. It would be an abuse to bring an action for enforce the costs award before that date. . .
Lists of cited by and citing cases may be incomplete.

Defamation

Updated: 05 December 2022; Ref: scu.145772

In re Andrews: CA 25 Feb 1999

Interesting and difficult question in an arcane field at the intersection of the old equitable remedy of receivership and the modern procedures of the Criminal Justice Act 1988 designed to combat serious crime. The problem in a nutshell is this: if a receiver is appointed under that Act to receive and manage a defendant’s property and incurs costs and expenses in so doing, who bears that cost and expense if the defendant is subsequently acquitted by the Crown Court and awarded his costs of defence out of public funds?

Citations:

[1999] EWCA Civ 864, [2000] CP Rep 30

Links:

Bailii

Statutes:

Criminal Justice Act 1988

Jurisdiction:

England and Wales

Costs, Criminal Practice

Updated: 05 December 2022; Ref: scu.145779

Poseidon Schiffahrt Gmbh v Nomadic Navigation Company Limited: CA 18 Feb 1999

Appeal from arbitration as to ‘Whether Clause 3(i) of the Shelltime 4 form of time charter has any application to defects in the vessel existing as at the time of her delivery as distinct from defects which came into existence after her delivery. ‘

Citations:

[1999] EWCA Civ 818

Jurisdiction:

England and Wales

Arbitration

Updated: 05 December 2022; Ref: scu.145733

Secretary of State for Home Department v Arif: CA 17 Feb 1999

Depending always on the particular facts of the case, there might well be ‘an evidential burden on the Secretary of State to establish that [the asylum seeker] could safely be returned home.’

Citations:

[1999] EWCA Civ 808, [1999] Imm AR 327

Jurisdiction:

England and Wales

Cited by:

Cited – Hoxha and Another v Secretary of State for the Home Department HL 10-Mar-2005
The claimants sought to maintain their claims for asylum. They had fled persecution, but before their claims for asylum were determined conditions in their home country changed so that they could no longer be said to have a well founded fear of . .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 December 2022; Ref: scu.145723

Myers v Dortex International Ltd, Axa Insurance Plc: CA 18 Feb 1999

Where a defendant claimed for damages following two accidents and the second insurers wished to apportion the damages, it was wrong to join the first since this faced the plaintiff with two causation defences. The judges decision should allow explanation.

Citations:

Times 18-Mar-1999, [1999] EWCA Civ 813

Jurisdiction:

England and Wales

Personal Injury

Updated: 05 December 2022; Ref: scu.145728

Kingcastle Limited v Owen-Owen: CA 19 Feb 1999

In a claim for possession of residential premises, the defendant who was the gay partner of the deceased tenant, to have succeeded to his partner’s tenancy as a member of his family.
Held: A court may adjourn a case pending the outcome of an appeal to the House of Lords in an appropriate case even where the issue at stake has already been decided by the Court of Appeal, provided the court allowed for prejudice to either party.

Judges:

Hirst LJ

Citations:

Times 18-Mar-1999, [1999] EWCA Civ 831

Jurisdiction:

England and Wales

Citing:

Distinguished – Regina v Walsall Justices, ex parte W (a minor) QBD 1990
A youth was charged with causing grievous bodily harm. His trial was fixed for 11 October 1988. On the date of trial, the prosecution applied for an adjournment on the grounds that, if the trial proceeded immediately and the magistrates decided that . .

Cited by:

Cited – North British Housing Association Ltd v Matthews, Same v Others CA 21-Dec-2004
In each case the tenants requested adjournment of the possession proceedings brought against them by the landlord for arrears of rent to allow them time to bring the arrears below the level at which a possession order could be made. In each case it . .
Lists of cited by and citing cases may be incomplete.

Litigation Practice

Updated: 05 December 2022; Ref: scu.145746

Manchester Airport Plc v Dutton and others: CA 23 Feb 1999

The claimant sought an order requiring delivery of possession of land occupied by the respondent objectors. They needed to remove trees from the land in order to construct a runway on their own adjacent land. The claimant had been granted a licence to enter on the land to remove the trees. The respondents said the claimant had insufficient interest to found the request for the order.
Held: The objectors appeal failed. (Lord Chadwick dissenting) The National Trust could not grant exclusive possession to the claimant. ‘There is no doubt that a licensee may have a right to exclusive possession without thereby becoming a tenant – for example where the licence is gratuitous – but that will depend on the terms of the licence. ‘ A letter from the National Trust could not assist: ‘The legal effect of a written document is a matter for the court which has to give effect to its terms. The ‘right as licensor to enter should the need arise’ is not reserved in any express term of the licence; it exists, in my view, because the licence grants no right of possession which would enable the airport company to exclude the National Trust. The right to control access to and egress from the site is not mentioned in the licence; nor is there, in the licence, any mention of responsibility for security measures. ‘
Laws LJ: ‘in this I hear the rattle of mediaeval chains.’ The historical law of ejectment was based upon a fiction: ‘the remedy by way of ejectment was by definition concerned with the case where the plaintiff asserted a better title to the land than the defendant; and the fictions, first introduced in the latter half of the sixteenth century and in effect maintained until 1852, were designed to cut out the consequences of pleading points that might be taken if the plaintiff did not plead his case as to the relevant legal relationships with complete accuracy. ‘ and ‘there is a logical mistake in the notion that because ejectment was only available to estate owners, possession cannot be available to licensees who do not enjoy de facto occupation. The mistake inheres in this: if the action for ejectment was by definition concerned only with the rights of estate owners, it is necessarily silent upon the question, what relief might be available to a licensee. The limited and specific nature of ejectment means only that it was not available to a licensee; it does not imply the further proposition, that no remedy by way of possession can now be granted to a licensee not in occupation. Nowadays there is no distinct remedy of ejectment; a plaintiff sues for an order of possession, whether he is himself in occupation or not. ‘ The court today has ample power to grant a remedy to a licensee which will protect but not exceed his legal rights granted by the licence. If, as here, that requires an order for possession, the spectre of history (which, in the true tradition of the common law, ought to be a friendly ghost) does not stand in the way. The law of ejectment has no voice in the question; it cannot speak beyond its own limits. ‘

Judges:

Laws LJ, Chadwick LJ

Citations:

[1999] EWCA Civ 844, [2000] 1 QB 133, [1999] 2 All ER 675, (2000) 79 P and CR 541, [1999] 1 EGLR 147, [1999] 3 WLR 524, [1999] EG 31

Links:

Bailii

Statutes:

Rules of The Supreme Curt Order 113 Rule 1, Common Law Procedure Act 1852

Jurisdiction:

England and Wales

Citing:

Cited – University of Essex v Djemal and others CA 1980
Students occupied the administrative office part of university premises. Following an order for possession of that part, they moved to a part known as Level Six. The university then sought an order for possession of the whole of its premises. Just . .
See Also – Manchester Airport Plc v Dutton and others CA 18-Jan-1999
. .
Cited – Allan v Liverpool Overseers 1874
The court was asked whether a steamship company was liable to be rated in respect of its occupation of sheds which it occupied under a licence from the Mersey Docks and Harbour Board. The court noted that liability for rates fell only on a person . .
Cited – Street v Mountford HL 6-Mar-1985
When a licence is really a tenancy
The document signed by the occupier stated that she understood that she had been given a licence, and that she understood that she had not been granted a tenancy protected under the Rent Acts. Exclusive occupation was in fact granted.
Held: . .
Cited – Appah v Parncliffe Investments Ltd CA 1964
The test of whether a person is a lodger, as opposed to a sub-tenant, must be determined by the degree of control retained by the householder over the rooms which the lodger occupies. . .
Cited – Manchester Corporation v Connolly CA 1970
The local authority sought to use an injunction to assist in enforcing planning controls. The court had no power to make an interlocutory order for possession. Lord Diplock: ‘The writ of possession was originally a common law writ (although it is . .
Cited – Radaich v Smith 7-Sep-1959
(High Court of Australia) Justice Windeyer said: ‘What then is the fundamental right which a tenant has that distinguishes his position from that of a licensee? It is an interest in land as distinct from a personal permission to enter the land and . .
Cited – Hounslow London Borough Council v Twickenham Gardens Development Limited 1971
The defendant, a building contractor, had been allowed into occupation of a site owned by the plaintiff council under a building contract. The council had sought to determine the contract by notice under its terms. The contractor refused to vacate . .
Cited – Dunford v McAnulty HL 1883
Lord Blackburn: ‘in ejectment, where a person was in possession those who sought to turn him out were to recover upon the strength of their own title ; and consequently possession was at law a good defence against anyone, and those who sought to . .
Cited – In Re Wykeham Terrace ChD 1971
Squatters had broken into and were in occupation of vacant premises. The plaintiff owner did not know their names. He applied for an order for possession by means of an ex parte originating summons to which there was no defendant. Service was . .
Cited – Wiltshire County Council v Frazer CA 1984
For a party to avail himself of the Order he must bring himself within its words. If he does so the court has no discretion to refuse him possession. The rules require: ‘(1) of the plaintiff that he should have a right to possession of the land in . .

Cited by:

See Also – Manchester Airport Plc v Dutton; Longmire; Stoddard; Maile and Persons Unknown CA 4-Mar-1999
The claimant wished to construct a new runway on its own land, and it was necessary to carry out works, namely, that trees on nearby land should be lopped or felled so that they would not constitute an obstruction to the flight path. The claimant . .
Lists of cited by and citing cases may be incomplete.

Land

Updated: 05 December 2022; Ref: scu.145759

Chalk v Devizes Reclamation Company Limited: CA 24 Feb 1999

Where a task required common-sense, and no obvious instructions were capable of avoiding a danger, an employer was not required to produce instruction and training. The judge erred in finding liability without finding what would have helped.

Judges:

Sir Stephen Brown Lord Justice Swinton Thomas

Citations:

Times 02-Apr-1999, Gazette 24-Mar-1999, [1999] EWCA Civ 849

Jurisdiction:

England and Wales

Negligence, Health and Safety, Personal Injury

Updated: 05 December 2022; Ref: scu.145764

Suriya and Douglas (a Firm) v Midland Bank Plc: CA 24 Feb 1999

The plaintiff firm of solicitors appealed against a decision refusing its claim for dmages after the defendant, its bankers, had failed to inform them of the existence of an account which would have paid them a higher rate of interest.
Held: The appeal failed: ‘A bank’s relationship with a client is not without more one in which duties of disclosure are imposed upon the bank as a matter of general law and there is nothing in the relationship of this particular customer with this particular bank which results in the imposition of such duties. ‘

Citations:

[1999] EWCA Civ 851

Jurisdiction:

England and Wales

Banking

Updated: 05 December 2022; Ref: scu.145766

Phonographic Performance Limited v AEI Redifussion Music Limited: CA 19 Feb 1999

This appeal is concerned with the circumstances in which it is appropriate for an appellate court, to which an appeal lies on a point of law from a tribunal (or court), to interfere with the exercise of a wide discretion to make an order in relation to the payment of the costs of the proceedings.

Judges:

Mummery LJ

Citations:

[1999] CPLR 551, [1999] EWCA Civ 834, [1999] 1 WLR 1507, [1999] RPC 599, [1999] EMLR 335, [1999] 2 All ER 299

Links:

Bailii

Jurisdiction:

England and Wales

Costs, Intellectual Property

Updated: 05 December 2022; Ref: scu.145749

Powell v Haywards (a Firm): CA 18 Feb 1999

Solicitors appealed against an order for payment of damages for professional negligence. The solicitors said that the plaintiff should have mitigated her damages.
Held: The plaintiffs had not failed to take reasonable steps to mitigate their loss. A disappointed beneficiary, claiming for professional negligence against solicitors, did not first have to seek to minimize his loss by seeking rectification of the will, where this would be unlikely to produce a practical improvement in his position.

Judges:

Hirst LJ, Mummery LJ, Buxton LJ

Citations:

Gazette 31-Mar-1999, Gazette 10-Mar-1999, [1999] EWCA Civ 816, Times 11-Mar-1999, [1999] 1 FLR 1182

Jurisdiction:

England and Wales

Citing:

Cited – Pilkington v Wood 1953
The plaintiff bought freehold land from a seller conveying as beneficial owner, the defendant acting as the plaintiff’s solicitor in the transaction. When the plaintiff later tried to sell the property he found the title was defective, the seller . .
Cited – Walker v Geo H Medlicott and Son (a Firm) CA 19-Nov-1998
The claimant said that the defendant solicitor had negligently failed to include in the will a specific devise of property in his favour.
Held: A beneficiary who alleged negligent failure of a will draftsman to include a gift to him in a will . .
Cited – In re Segelman (dec’d) ChD 1996
The burden of proof which falls on a disappointed beneficiary who seeks rectification of the will, saying that the will did not give effect to a testator’s intentions, is an exacting one.
Chadwick J said: ‘Although the standard of proof . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Professional Negligence, Legal Professions

Updated: 05 December 2022; Ref: scu.145731

Hedden v Exeter Diocesan Board for Christian Care: CA 17 Feb 1999

Citations:

[1999] EWCA Civ 799

Jurisdiction:

England and Wales

Citing:

Appeal from – Hedden v Exeter Diocesan Board for Christian Care EAT 26-Jun-1998
. .

Cited by:

See Also – B Hedden v Exeter Diocesan Board for Christian Care EAT 9-Mar-2000
EAT Unfair Dismissal – Reason for Dismissal . .
Lists of cited by and citing cases may be incomplete.

Employment

Updated: 05 December 2022; Ref: scu.145714

Regina v Durham County Council Sherburn Stone Company Limited Secretary of State for Environment, Transport and Regions ex parte Rodney Huddleston: CA 15 Feb 1999

Citations:

[1999] EWCA Civ 792

Jurisdiction:

England and Wales

Cited by:

See Also – Regina v Durham County Council Sherburn Stone Company Limited ex parte Huddlestone Admn 28-Jul-1999
. .
See Also – Regina v Durham County Council ex parte Rodney Huddleston Admn 17-Aug-1999
Variation of interim injunction to allow works preparatory to development pending appeal against refusal of planning permission. . .
See Also – Regina v Durham County Council Ex Parte Huddleston QBD 28-Jan-2000
A quarry owner had allowed his mineral extraction licence to lapse, and sought to renew the permission. The authority failed to issue a decision within the appropriate time period, and a deemed permission was granted. It was held however that where . .
See Also – Regina v Durham County Council and Others Ex Parte Huddleston CA 15-Mar-2000
A quarry owner had allowed his mineral extraction licence to lapse, and sought to renew the permission. The authority failed to issue a decision within the appropriate time period, and a deemed permission was granted. The UK system appeared not to . .
Lists of cited by and citing cases may be incomplete.

Planning, Environment

Updated: 05 December 2022; Ref: scu.145707

White v White: CA 19 Jun 1998

Where husband and wife were partners in a business, the court deciding ancillary relief should first assess what each would get on a dissolution, then ask if family court powers to be exercised to increase the wife’s share, if not then should it be reduced.

Judges:

Butler-Sloss, Thorpe, Mantell LJJ

Citations:

Times 13-Jul-1998, [1998] EWCA Civ 1046, [1998] 4 All ER 659, [1998] 2 FLR 310, [1998] Fam Law 522, [1998] 3 FCR 45, [1999] 2 WLR 1213, [1999] Fam 304

Links:

Bailii

Statutes:

Matrimonial Causes Act 1973 23

Jurisdiction:

England and Wales

Family

Updated: 05 December 2022; Ref: scu.90468

Secretary of State for Trade and Industry v Bottrill: CA 12 Feb 1999

There is no rule of law, to suggest that a sole director and owner of majority of shareholding, could not be an employee of that company, and be entitled to a redundancy payment on the liquidation of the company. ‘If the tribunal considers that the contract is not a sham, it is likely to wish to consider next whether the contract, which may well have been labelled a contract of employment, actually gave rise to an employer/employee relationship. In this context, of the various factors usually considered relevant . . . the degree of control exercised by the company over the shareholder employee is always important. This is not the same question as that relating to whether there is a controlling shareholding. The tribunal may think it appropriate to consider whether there are directors other than or in addition to the shareholder employee and whether the constitution of the company gives that shareholder rights such that he is in reality answerable to himself and incapable of being dismissed.’

Citations:

Gazette 10-Mar-1999, Gazette 27-Jun-1999, [1999] EWCA Civ 781, [1998] IRLR 120, [1999] IRLR 326, [1999] ICR 592, [1999] BCC 177

Links:

Bailii

Statutes:

Employment Rights Act 1996 213

Jurisdiction:

England and Wales

Citing:

Appeal from – Secretary of State for Trade and Industry v Bottrill EAT 28-May-1998
There is no rule of law to suggest that a sole director and owner of majority of shareholding could not be an employee and entitled to redundancy payment on the liquidation of the company. ‘The higher courts have taken the view that the issue as to . .

Cited by:

Cited – Bunting and Others v Hertel (Uk) Ltd EAT 28-Jun-2001
The appellants claimed to have been unfairly dismissed. They had been owners, through a discretionary trust, of a company sold to the respondents. They claimed also to have been employees. Following the sale, they were dismissed, and they asserted . .
Cited – Venables and others v Hornby (Her Majesty’s Inspector of Taxes) HL 4-Dec-2003
The company director taxpayer had retired from his company but stayed on as an unpaid non-executive director. The trust deed for the company’s pension scheme provided for payments to be made to an employee. The director sought relief from payment of . .
Cited – Ultraframe UK Limited v Clayton, Fielding and Others ChD 3-Oct-2002
The claimants asserted infringement of their registered design rights in parts used in their double glazing and conservatory units. ‘Therefore it is possible for design right to subsist in the design of the part of the article which is not excluded . .
Cited – Smith v Secretary of State for Trade and Industry EAT 15-Oct-1999
The claimant had been sole director of a company which went into liquidation. He sought a redundancy payment from the respondent under the 1996 Act. It was refused. The tribunal had applied Buchan. It had refused to hear an argument that the . .
Cited – Nesbitt v Secretary of State for Trade and Industry EAT 10-Aug-2007
EAT Contract of Employment – definition of employee
Insolvency
The Appellants were a husband and wife who entered into contracts of employment with a company which they managed and which they between . .
Lists of cited by and citing cases may be incomplete.

Employment, Company, Benefits

Updated: 05 December 2022; Ref: scu.135854

Hosking v Legal and General Ventures Limited (2): CA 12 Feb 1999

Citations:

[1999] EWCA Civ 775

Jurisdiction:

England and Wales

Cited by:

Cited – Becerra v Close Brothers ComC 25-Jun-1999
ComC Claim for fee for introducing successful bidder at a controlled auction – no express contract – no implied contract based on City practice – claim for quantum meruit failed because no express or implied . .
Lists of cited by and citing cases may be incomplete.

Contract, Company, Intellectual Property

Updated: 05 December 2022; Ref: scu.145690

National Grid Company Plc v Mayes and Others: CA 25 Feb 1999

Trustees of a pension scheme in actuarial surplus were not entitled to treat a clause requiring them to make arrangements for the surplus as allowing them to forgive their own liability to make contributions without the Trustees’ agreement or a variation.

Citations:

Times 25-Feb-1999, Gazette 03-Mar-1999, [1999] EWCA Civ 761, [1999] OPLR 95, [1999] Pens LR 37, [1999] PLR 37, [2000] ICR 174

Links:

Bailii

Jurisdiction:

England and Wales

Employment, Financial Services

Updated: 05 December 2022; Ref: scu.82506

MSC Mediterranean Shipping Co Sa v Polish Ocean Lines (The Tychy): CA 31 Mar 1999

A slot charterer had a right in a ship, even if only of a part of the ship, and so a claim under the agreement to arrest a sister ship of the chartering company could be heard within the Admiralty Court’s jurisdiction.

Judges:

Moore-Bick VP CA, Tomlinson LJJ, Keehan J

Citations:

Times 30-Apr-1999, Gazette 06-May-1999, [1999] EWCA Civ 1150

Statutes:

Supreme Court Act 1981 21(4)(b)

Jurisdiction:

England and Wales

Citing:

Cited – Attica Sea Carriers Corporation v Ferrostaal Poseidon Bulk Reederei GmbH, The Puerto Buitrago CA 1976
The parties entered into a charterparty by demise of a bulk carrier. It was in a state of disrepair. The owners required the charterers to repair it before redelivery, and claimed hire losses until it was returned repaired. The extensive repairs . .
Lists of cited by and citing cases may be incomplete.

Transport, Litigation Practice

Updated: 05 December 2022; Ref: scu.84103

Smyth v Behbehani, Behbehani and Philip Ross and Company (a Firm): CA 11 Mar 1999

The defendant appealed against a refusal of an order declining jurisdiction for forum non conveniens.
Held: Though a court should be very careful to make any order in a matter which was being litigated in a foreign jurisdiction for fear of being party to procedural manipulation, it could do so where the making of the order would assist both parties.

Citations:

Times 09-Apr-1999, [1999] EWCA Civ 954

Jurisdiction:

England and Wales

Jurisdiction

Updated: 05 December 2022; Ref: scu.89354

Regina v H M Treasury; Commissioners of Customs and Excise and Attorney General ex parte Shepherd Neame Ltd: CA 12 Feb 1999

Community law does not impose any obligation on member states to refrain from imposing increases in excise duty. The differences between English and French rates are substantial, and damaging to brewers near the channel, but there remains no such duty.

Citations:

Times 17-Feb-1999, [1999] EWCA Civ 776

Statutes:

ECTreaty art 99

Jurisdiction:

England and Wales

European, Customs and Excise

Updated: 05 December 2022; Ref: scu.145691

Secretary of State for the Home Department v Immigration Appeal Tribunal: Admn 9 Apr 2001

The application raised two issues: the Tribunal’s power to remit a case for rehearing by an adjudicator, and when an order made by a lone chairman of the Tribunal may be varied or set aside. The Tribunal only has the powers it is given. The two powers of remittal are not to be treated differently, and there is no remittal power involving a Tribunal delegating to the adjudicator its function of deciding the appeal from the adjudicator. Remittal is never a final determination under s 9 of the 1993 Act

Citations:

[2001] EWHC Admin 261

Links:

Bailii

Statutes:

Asylum Appeals (Procedure) Rules 1996 17(2), Immigration Act 1971 19, 20, 22, Immigration Appeals (Procedure) Rules 1984, Asylum and Immigration Appeals Act 1993 9

Jurisdiction:

England and Wales

Citing:

Cited – Taj Bibi v Entry Clearance Officer, Islamabad 1977
. .
Lists of cited by and citing cases may be incomplete.

Immigration

Updated: 05 December 2022; Ref: scu.140316

Stimpson v Smith: CA 11 Mar 1999

The court was asked whether a guarantor who had made a payment discharging the guarantee without a formal demand but following negotiations with the creditor, and in circumstances where otherwise the creditor would probably have made a demand, could claim contribution in equity from the co-guarantor.
Held: Where one joint guarantor orally agrees to repay part of the guaranteed overdraft after a formal demand, even though not against the guarantors, he is entitled to an appropriate contribution from his co-guarantor.

Judges:

Peter Gibson LJ, Tuckey LJ

Citations:

Times 22-Mar-1999, Gazette 14-Apr-1999, [1999] EWCA Civ 952, [1999] Ch 340

Jurisdiction:

England and Wales

Cited by:

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

Contract, Banking

Updated: 05 December 2022; Ref: scu.89558

Rothschild and Others v Bell (a bankrupt) and Another: CA 18 Feb 1999

The right of one of two joint tenants of residential premises under a long lease at a low rent to hold over under the Act, is a right in property and so vests in his trustee on bankruptcy, and the trustee can disclaim it, thus removing any right of possession.

Citations:

Times 10-Mar-1999, [1999] EWCA Civ 823

Statutes:

Landlord and Tenant Act 1954 Part I

Jurisdiction:

England and Wales

Landlord and Tenant

Updated: 05 December 2022; Ref: scu.88874

Raja v Rubin and Another: CA 19 Mar 1999

Having waived his right to a dividend under a voluntary arrangement, a creditor could not object to its later variation to include other creditors, despite an absence of explicit power in the deed for this purpose. Waiver should have been made explicit.

Citations:

Times 14-Apr-1999, [1999] EWCA Civ 1039, [1999] 3 All ER 72

Statutes:

Insolvency Act 1986 263 (3)

Jurisdiction:

England and Wales

Cited by:

Cited – Reid Minty (a firm) v Taylor CA 2002
New CPR govern Indemnity Costs awards
The defendant had successfully defended the main claim and now appealed against the refusal of an order for costs on an indemnity basis even though judge thought that the claimants had behaved unreasonably. He had said that some conduct deserving of . .
Lists of cited by and citing cases may be incomplete.

Insolvency, Costs

Updated: 05 December 2022; Ref: scu.85656

Regina v Caradon District Council Ex Parte Knott: QBD 3 Mar 2000

A planning authority had already issued both rectification and discontinuance notices, and there was now no dispute with the land owner about the need to dismantle existing buildings, it amounted to an abuse of process further to go and issue an enforcement notice which would have the sole purpose of depriving the land owner of any right to claim compensation. Such a notice could only be issued for a genuine planning purpose. That was absent here.

Citations:

Times 03-Mar-2000, [2000] 3 PLR 1

Jurisdiction:

England and Wales

Cited by:

Cited – Stancliffe Stone Company Ltd v Peak District National Park Authority QBD 22-Jun-2004
The claimants sought a declaration. Planning permission had been confirmed for four mineral extraction sites by letter in 1952. In 1996, two were listed as now being dormant. The claimant said the letter of 1952 created on single planning permision . .
Lists of cited by and citing cases may be incomplete.

Planning

Updated: 05 December 2022; Ref: scu.85165

Mercantile Credit Co Ltd and Another v Fenwick and Others; Same v Speechly Bircham: CA 12 Feb 1999

Solicitors retained to obtain signatures to a bank’s charge by husband and wife to secure his debts was required to act in accordance with current good practice. No duty to ensure certificate obtained that husband and wife had separate advisers.

Citations:

Gazette 10-Mar-1999, Times 23-Feb-1999, [1999] EWCA Civ 778

Jurisdiction:

England and Wales

Legal Professions, Professional Negligence, Banking

Updated: 05 December 2022; Ref: scu.83640

Levett v Biotrace International Plc: CA 10 Feb 1999

Where a service contract provided for the loss of share options on the cessation of employment, those options could only be forfeit if the contract was terminated lawfully by the employer. The employer could not benefit from his own unlawful act.

Citations:

Times 11-May-1999, Gazette 09-Jun-1999, [1999] EWCA Civ 757, [1999] EWCA Civ 758

Jurisdiction:

England and Wales

Employment

Updated: 05 December 2022; Ref: scu.83033

G and GB Hewitt Ltd v SA Namur-Assurances Du Credit: CA 8 Mar 1999

An exclusion clause in a contract insuring against bad debts, avoiding liability where import or export orders were banned, did not apply to supplies to a company who later intended to export the goods but became insolvent following ban on exports.

Citations:

Gazette 10-Mar-1999, Times 08-Mar-1999

Jurisdiction:

England and Wales

Insurance, Contract

Updated: 05 December 2022; Ref: scu.80718

Askin and Others v ABSA Bank Ltd and Others: CA 23 Feb 1999

In hearing a forum non conveniens application the court could allow that justice was not practically available to the party in another jurisdiction only after it had first been shown that the other forum was available. Here the plaintiff facing criminal charges there, and was unwilling to return.

Citations:

Times 23-Feb-1999, Gazette 31-Mar-1999, [1999] EWCA Civ 680

Jurisdiction:

England and Wales

International

Updated: 05 December 2022; Ref: scu.77907

Re CR: CoP 12 Mar 2021

whether it is in the best interests of CR to have a declaration made to enable the Applicant (‘the CCG’) to administer a vaccination to CR against Covid 19. There is no dispute that CR does not have the capacity to make this decision himself.

Judges:

His Honour Judge Butler

Citations:

[2021] EWCOP 19

Links:

Bailii

Jurisdiction:

England and Wales

Health

Updated: 05 December 2022; Ref: scu.662223

Contractor v Revenue and Customs (Income Tax – Discovery Assessment – Tax Avoidance Scheme): FTTTx 23 Feb 2021

INCOME TAX – discovery assessment – tax avoidance scheme – ground of appeal against the quantum of assessment and not the efficacy of the scheme – ss 29 and 34 of Taxes Management Act 1970 – whether assessment validly made – pre-condition under s 29(5) -whether a hypothetical officer could have been reasonably expected to be aware of the insufficiency from the information made available; no – whether assessment stands good; yes – onus for displacing assessment regarding quantum on the appellant – appeal dismissed

Citations:

[2021] UKFTT 54 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax

Updated: 05 December 2022; Ref: scu.661755

GB Taxi Services Ltd v Revenue and Customs (Insurance Premium Tax – Liability To Be Registered): FTTTx 18 Dec 2020

INSURANCE PREMIUM TAX – liability to be registered – assessment – supply of a hired car and insurance by the appellant to drivers who reimbursed the appellant for the cost of taking out insurance to cover risks associated with the vehicle – whether provision of insurance to the drivers – yes – whether contract of insurance – no – appeal allowed

Citations:

[2020] UKFTT 507 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Taxes – Other

Updated: 05 December 2022; Ref: scu.661808

Stringer v Revenue and Customs (Income Tax – Application To Make A Late Appeal): FTTTx 4 Dec 2020

Income Tax – application to make a late appeal – fixed and daily penalties for the late filing of individual SA return – significant delay in submitting return – appellant asserts that she was depressed and received no income during the default year – delay in submitting appeal against the penalties – whether reasonable excuse for delay in appealing – on the facts, no – application for permission to make a late appeal refused

Citations:

[2020] UKFTT 491 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax

Updated: 05 December 2022; Ref: scu.661821

Cumming-Bruce v Revenue and Customs (Capital Gains Tax – Allowable Capital Losses): FTTTx 4 Dec 2020

CAPITAL GAINS TAX – Allowable capital losses – Mansworth v Jelley – Section 9A enquiry or standalone claim and enquiry under Schedule 1A of the TMA 1970 – Cotter v HMRC – Discovery Assessment – section 29 TMA 1970 – whether the discovery had lost its essential newness or become stale by the time of assessment – appeal dismissed

Citations:

[2020] UKFTT 490 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Capital Gains Tax

Updated: 05 December 2022; Ref: scu.661804

Burke v Revenue and Customs (Income Tax – Discovery Assessments): FTTTx 5 Feb 2021

INCOME TAX – discovery assessments – whether or not there was a discovery for each of the relevant years – yes – whether or not the appellant’s agents’ role affected the position – no – penalties – whether or not the appellant was careless – yes – whether or not the penalties should be reduced – yes to the extent agreed by the parties – appeal allowed in part

Citations:

[2021] UKFTT 33 (TC)

Links:

Bailii

Jurisdiction:

England and Wales

Income Tax

Updated: 05 December 2022; Ref: scu.661754