JMMB Merchant Bank Ltd v The Real Estate Board: PC 20 Apr 2015

(Jamaica) The Board was asked ‘ two issues, namely (i) whether a charge in favour of the Real Estate Board (‘the REB’) is valid only if it has been registered under section 93 of the Companies Act 2004; and (ii) to what extent (if at all) does a charge in favour of a regulated financial institution rank pari passu with the REB’s charge.’

Lady Hale
Lord Sumption, Lord Carnwath, Lord Hughes, Lord Hodge
[2015] UKPC 16
Bailii
England and Wales

Land, Company

Updated: 12 November 2021; Ref: scu.545684

Cadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd: PC 13 Oct 1980

(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the trade mark to be deregistered. The judge held that there was enough of a difference to keep the defendants innocent of passing off, and though they had sought to ride on the back of the plaintiff’s advertising there was no misrepresentation.
Held: The get up and style of a product could be used as part of a passing off where it had come to be closely associated with a product, but there was evidence to support the judge’s finding that there had been no misrepresentation, and the claim in passing off was not made out. The date which mattered was that date at which the conduct complained of commenced. The judge had correctly used that date, and a mistaken reference to the date of commencement of the hearing did not vitiate the decision. Appeal dismissed.

Lord Wilberforce, Lord Edmund-Davies, Lord Fraser of Tullybelton, Lord Scarman and Lord Roskill
[1981] 1 WLR 193, [1981] RPC 429, [1980] UKPC 30
lip, Bailii
Australia
Citing:
CitedCheney Brothers v Doris Silk Corporation 1929
Judge Learned Hand refused to enjoin copying of designs for silk fabrics. If a ‘writing’ is within the scope of the constitutional clause, and Congress has not protected it, whether deliberately or by unexplained omission, it can be freely copied. . .
CitedFelton v Mulligan 2-Sep-1971
(Australia) The court was concerned to interpret the phrase ‘arising under any laws made by the Parliament’
Austlii Constitutional Law (Cth) – Privy Council – Appeal from State Supreme Court invested with . .
CitedHornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Pty Ltd 1978
. .
CitedInternational News Service v Associated Press 1918
The Supreme Court introduced the concept of ‘unfair competition’. . .
CitedLeather Cloth Co Ltd v American Leather Cloth Co Ltd HL 1-Feb-1865
Where an individual works in a partnership the goodwill generated by his acts will in the normal course vest in the partnership.
Lord Kingsdown said: ‘Nobody doubts that a trader may be guilty of such misrepresentations with regard to his . .
CitedKark (Norman) Publications Ltd v Odhams Press Ltd 1962
Wilberforce, J described the basis of a passing off action in respect of the name of a newspaper or magazine as being a proprietary right not so much in the name itself but in the goodwill established through the use of the name in connection with . .
CitedReddaway and Co Ltd v Banham and Co Ltd HL 1896
The plaintiff manufactured and sold Camel Hair Belting. The defendant also began to sell belting made of camel’s hair in the name of Camel Hair Belting. The trader claimed a right in the term ‘Camel Hair’.
Held: The term was descriptive. Where . .
CitedSlazenger and Sons v Feltham and Co CA 1889
As to a party, a court will not ‘be astute to say that he cannot succeed in doing that which he is straining every nerve to do’. . .
CitedSpalding (A G ) and Brothers v A W Gamage Ltd HL 1915
The House considered the requirements for the tort of passing off. The judge has the sole responsibility for deciding whether anybody has been misled. He will hear evidence, but must not surrender his assessment to others.
Lord Parker said: . .
CitedVictoria Park Racing and Recreation Grounds Co Ltd v Taylor 26-Aug-1937
(High Court of Australia) . .
CitedErven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .

Cited by:
CitedInter Lotto (Uk) Ltd v Camelot Group Plc CA 30-Jul-2003
The claimant and defendant had each operated using a the name ‘HotSpot’ for a name for its lottery. The respondent had registered the name as a trade mark. The claimant began to use the name first and claimed in passing off, and the respondent . .
CitedAlan Kenneth McKenzie Clark v Associated Newspapers Ltd PatC 21-Jan-1998
The claimant was a member of Parliament and an author. The defendant published a column which was said to give the impression that the claimant had written it. It was a parody. The claim was in passing off.
Held: The first issue was whether a . .
CitedMoroccanoil Israel Ltd v Aldi Stores Ltd IPEC 29-May-2014
The claimant asserted passing off and trade mark infringement by the defendant in respect of its own hair oil product and the defendant’s sale of ‘Miracle Oil’. The defendant counterclaimed in a threat action. . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 11 November 2021; Ref: scu.174751

Vadim Schmidt v Rosewood Trust Limited: PC 27 Mar 2003

PC (Isle of Man) The petitioner sought disclosure of trust documents, as a beneficiary. Disclosure had been refused as he had not been a named beneficiary.
Held: Times had moved on, and trust documents had taken more and more indirect ways of conferring benefits. The settlements were badly drafted, but that should not be used to excuse a court fulfilling its duties. The right to seek disclosure did not depend upon a fixed and transmissible beneficial interest. The object of a discretion may have similar rights, and the right was not dependant upon establishing a proprietary interest, but the remedy would be in equity and subject to the court’s discretion. A beneficiary of a discretionary trust has a non-assignable and non-transmissible interest in the trust, and has no entitlement as of right to any trust documents or other information relating to the trust in the possession or control of the trustees.

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Hobhouse of Woodborough, Lord Walker of Gestingthorpe
Times 29-Mar-2003, [2003] UKPC 26, Gazette 05-Jun-2003, [2003] 2 AC 709, (2002-03) 5 ITELR 715, [2003] 3 All ER 76, [2003] 2 WLR 1442, [2003] Pens LR 145, [2003] WTLR 565
PC, Bailii, PC
Citing:
CitedMcPhail v Doulton (on appeal from In re Baden’s Deed Trusts) HL 6-May-1970
The settlor asked whether the test for validity, in point of certainty of objects, is the same for trusts and powers, or whether the test for trusts is more demanding.
Held: The test is the same. The context was a provision, held to be a . .
CitedIn re Manisty’s Settlement ChD 1974
The court contrasted the exercise by trustees of an intermediate power with the exercise of a wide special power.
Held: A wide power, whether special or intermediate, does not negative or prohibit a sensible approach by trustees to the . .
CitedO’Rourke v Darbishire HL 1920
Sir Joseph Whitworth had died in 1887. In 1884 he had made a will appointing three executors and leaving his residuary estate to charity. By a codicil made in 1885 he altered his will to leave his ultimate residue to his executors for their own . .
CitedIn re Londonderry’s Settlement; Peat v Lady Walsh CA 3-Nov-1964
The Court considered limitations on the right to disclosure of trust documents, and in particuar the need to protect confidentiality in communications between trustees as to the exercise of their dispositive discretions, and in communications made . .

Cited by:
CitedFranses v Al Assad and others ChD 26-Oct-2007
The claimant had obtained a freezing order over the proceeds of sale of a property held by solicitors. The claimant was liquidator of a company, and an allegation of wrongful trading had been made against the sole director and defendant. The . .
CitedBreakspear and others v Ackland and Another ChD 19-Feb-2008
Beneficiaries sought disclosure of a wishes letter provided by the settlor to the trustees in a family discretionary trust.
Held: The confidentiality in the letter was, in the absence of some express term by the settlor, in the trustees, and . .
CitedDawson-Damer and Others v Taylor Wessing Llp and Others ChD 6-Aug-2015
The clamants sought orders under the 1998 Act for disclosure of documents about them by the defendant solicitors and others. The defendants said that the request would require the consideration of a very large number of documents, considering in . .
CitedTN, MA and AA (Afghanistan) v Secretary of State for The Home Department SC 24-Jun-2015
The appellants, children from Afghanistan whose asylum claims had been rejected, challenged the sufficiency of the appellate process, and the respondents obligations for family tracing.
Held: The appeals failed. An applicant could not claim, . .
CitedRoyal National Lifeboat Institution and Others v Headley and Another ChD 28-Jul-2016
Beneficiaries’ right to information from estate
The claimant charities sought payment of interests under the will following the dropping of two life interests. They now requested various documents forming accounts of the estate.
Held: The charities were entitled to some but not to all of . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Trusts, Equity

Leading Case

Updated: 11 November 2021; Ref: scu.180352

Gammon (Hong Kong) Ltd v A-G of Hong Kong: PC 1984

Lord Scarman expressed the purpose of imposing strict liability within criminal law: ‘In their Lordships’ opinion, the law relevant to this appeal may be stated in the following propositions . . : (1) there is a presumption of law that mens rea is required before a person can be held guilty of a criminal offence; (2) the presumption is particularly strong where the offence is ‘truly criminal’ in character; (3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary implication the effect of the statute; (4) the only situation in which the presumption can be displaced is where the statute is concerned with an issue of social concern, and public safety is such an issue; (5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can also be shown that the creation of strict liability will be effective to promote the objects of the statute by encouraging greater vigilance to prevent the commission of the prohibited act.’

Lord Scarman
[1985] AC 1, [1984] 2 All ER 503, [1984] 3 WLR 437, [1984] Crim LR 479, (1984) 80 Cr App R 194, [1985] LRC (Crim) 439
Citing:
ConfirmedSherras v De Rutzen QBD 2-May-1895
The court considered the need to establish mens rea where it was dealing with something which was one of a class of acts which ‘are not criminal in any real sense, but are acts which in the public interest are prohibited under a penalty’, and ‘There . .

Cited by:
CitedThames Water Utilities Ltd v Bromley Magistrates’ Court Admn 20-Mar-2013
Sewage had escaped from the company’s facilities. They now sought judicial review of their conviction under the 1990 Act, saying there had been no ‘deposit’ of sewage.
Held: The request for review failed: ‘the answer to the question whether . .
CitedBrown, Regina v (Northern Ireland) SC 26-Jun-2013
The complainaint, a 13 year old girl had first said that the defendant had had intercourse with her againt her consent. After his arrest, she accepted that this was untrue. On being recharged with unlawful intercourse, he admitted guilt believing he . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Leading Case

Updated: 10 November 2021; Ref: scu.471928

Board of Trustees of the National Provident Fund v Shortland Securities Limited: PC 1997

(New Zealand) Lord Hoffmann: ‘The expression ‘ratchet clause’ is well understood in New Zealand to mean a particular type of clause, namely a provision such as cl 3.5(c)(i) which prevents the reviewed rent from being lower than the previous rent. This is not the same as a clause giving the landlord an option to initiate review proceedings, even if in practice the economic effect is likely in most (though not necessarily all) cases, to be the same. McGechan J said: ‘[Brierley’s] agreement to provide a lease without a ratchet clause did not require provision of a lease with a mandatory review clause. The two were different and were not spoken of as the same’. The Court of Appeal agreed. In view of these concurrent opinions as to the meaning of what is in effect a term of art in New Zealand commercial property transactions, Their Lordships would be very reluctant to take a different view.’

Lord Hoffmann
[1997] 1 NZLR 1
England and Wales
Citing:
Appeal fromBoard of Trustees of the National Provident Fund v Shortland Securities Limited 1996
(New Zealand Court of Appeal) The court considered whether a review in a lease without a ratchet (upwards only) rent review clause could be exercised only at the instigation of the landlord: ‘The fact that as a consequence the parties agreed upon . .

Cited by:
CitedHemingway Realty Ltd v Clothworkers’ Company ChD 8-Mar-2005
The lease provided for a rent review under which the rent might either be increased or decreased. The landlord had chosen not to exercise the clause in view of falling rents. The tenant purported to do so. The landlord said that it alone had the . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Landlord and Tenant

Updated: 09 November 2021; Ref: scu.223595

Kinsela v Russell Kinsela Pty Ltd (In Liq): 1986

(New South Wales) If directors act in a way to promote their own interest or promote the private interest of others, they have not acted in the best interests of the company.
Street CJ said: ‘In a solvent company the proprietary interests of the shareholders entitle them as a general body to be regarded as the company when questions of the duty of directors arise. If, as a general body, they authorise or ratify a particular action of the directors, there can be no challenge to the validity of what the directors have done. But where a company is insolvent the interests of the creditors intrude. They become prospectively entitled, through the mechanism of liquidation, to displace the power of the shareholders and directors to deal with the company’s assets. It is in a practical sense their assets and not the shareholders’ assets that, through the medium of the company, are under the management of the directors pending either liquidation, return to solvency, or the imposition of some alternative administration.’

Street CJ, Hope and McHugh JJA
(1986) 4 NSWLR 722, (1986) 4 ACLC 215, 10 ACLR 395
Cited by:
ApprovedWest Mercia Safetywear Ltd v Dodds CA 1988
If a company continues to trade whilst insolvent but in the expectation that it would return to profitability, it should be regarded as trading not for the benefit of the shareholders, but for the creditors also. If there is a possibility of . .

Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Leading Case

Updated: 09 November 2021; Ref: scu.565823

Dunlop v The Council of The Municipality of Woollahra: PC 28 Feb 1981

(New South Wales) The landowner made and allegation of damage caused to him by the passing planning resolutions, which were in fact invalid, restricting the height of his proposed building.
Held: A local body when exercising a public function such as those relating to town planning can be liable for misfeasance. Lord Diplock described the tort of misfeasance in public office as ‘well established’
His pleading alleged that the council: ‘was a public corporate body which occupied office and was incorporated by a public statute . . and the [council] abused its said office and public duty under the said statute by purporting to pass each of the said resolutions with the consequence that damage was occasioned to [Dr Dunlop].’ As to which Lord Dunlop replied: ‘In pleading in paragraph 15A of the statement of claim that the council abused their public office and public duty the plaintiff was relying upon the well-established tort of misfeasance by a public officer in the discharge of his public duties … their Lordships agree with [the trial judge’s] conclusion that, in the absence of malice, passing without knowledge of its invalidity a resolution which is devoid of any legal effect is not conduct that of itself is capable of amounting to such ‘misfeasance’ as is a necessary element in this tort.’

[1981] UKPC 10, [1982] AC 158, [1981] 1 All ER 1202
Bailii
Australia
Cited by:
CitedElliott v Chief Constable of Wiltshire and Others ChD 20-Nov-1996
Vice-Chancellor was asked to consider whether to strike out a statement of claim based upon alleged misfeasance by a police officer in his public office. The allegation against the police officer was that he had deliberately and falsely supplied . .

Lists of cited by and citing cases may be incomplete.

Torts – Other, Local Government

Updated: 09 November 2021; Ref: scu.443949

Attorney-General of Ceylon v de Livera: PC 1963

A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a gratification to the member ‘for his doing an act in his capacity as such member’, but the conviction by the magistrate was overturned by the Supreme Court of Ceylon.
Held: The attorney-general’s appeal was allowed. The Board considered the meaning of the phrase ‘proceedings in parliament’.
Viscount Radcliffe said: ‘their Lordships are now in a position to address themselves to the facts of this appeal. They approach them on the basis . . that in considering whether the inducement offered by the . . respondent to . . the member was offered to induce him to act in his capacity as such member, the inquiry is not confined to ascertaining whether he was to do something specifically assigned as a member’s function in the Constitution Order or something which was actually a proceeding on the floor of or in the precincts of the House. They recognise that there are many things which a member may be invited to do because he is a member and enjoys as such a status and prestige which supply the motive of the invitation but in doing which he would not be acting in his capacity as a member. But, with this recognition made, they are of the opinion that the circumstances of any particular case may show that in the light of prevailing practices or conventions observed by members of the House some act for which an inducement has been offered is sufficiently closely bound up with and analogous to a proceeding in the House as to be properly described as done by a member in his capacity as such’. And
‘What has come under inquiry on several occasions is the extent of the privilege of a member of the House and the complementary question, what is a ‘proceeding in Parliament’? This is not the same question as that now before the Board, and there is no doubt that the proper meaning of the words ‘proceedings in Parliament’ is influenced by the context in which they appear in article 9 of the Bill of Rights (1 Wm and M, Sess,. 2, c.2); but the answer given to that somewhat more limited question depends upon a very similar consideration, in what circumstances and in what situations is a member of the House exercising his ‘real’ or ‘essential’ function as a member? For, given the proper anxiety of the House to confine its own or its members’ privileges to the minimum infringement of the liberties of others, it is important to see that those privileges do not cover activities that are not squarely within a member’s true function.’

Viscount Radcliffe
[1963] AC 103
Bill of Rights 1869
Commonwealth
Cited by:
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.199234

Leahy v Attorney-General of New South Wales: PC 20 Apr 1959

leahy_agnswPC1959-4

A gift to an unincorporated association simpliciter, i.e. where neither the circumstances of the gift nor the directions given nor the object expressed impose on the donee the character of a trustee, is nothing else than a gift to its members at the date of the gift as joint tenants or tenants in common.
Where a trust is for a non-charitable purpose and does not have a beneficiary, it fails ‘for a purpose or object cannot sue . . to enforce it’
Viscount Simonds said: ‘But, though their Lordships are of opinion that the section may operate where there is a composite expression covering charitable and non-charitable purposes, and does so in the present case, it is clear that not every expression which might possibly justify a charitable application is brought within it. For instance, in In re Hollole there was a gift to a trustee ‘to be disposed of by him as he may deem best’. The trustee might presumably have deemed it best to dispose of it for a charitable purpose, and, if he had done so, could not be said to have exceeded his powers. Yet O’Bryan J held that the gift was not saved by the section, and his decision has been rightly approved in the High Court. This was a clear case because the testator did not designate any purpose at all but in effect delegated his testamentary power in a manner that the law does not permit. Greater difficulty will arise where the permissible objects of choice are described in a composite expression which, though not so vague and general as to amount to a delegation of testamentary power, does not very clearly indicate a charitable intention on the part of the testator. ‘In the present case,’ say the Chief Justice and McTiernan J, ‘there is reference to a distributable class which, while not exclusively charitable, is predominantly charitable in character’. The same concept appears in a different form in the judgment of Williams J and Webb J. ‘One can also agree with him’ (ie., Myers J) they say ‘that in order to satisfy the section the application of the whole fund to charity must be one way of completely satisfying the intention of the testator. But, if the trust either directs or allows this to be done, the testator’s intention will be completely satisfied if the trust funds are so applied….’ Thus whether the gift be to Orders of Nuns, an object so predominantly charitable that a charitable intention on the part of the testator can fairly be assumed, or for (say) benevolent purposes, which connotes charitable as well as non-charitable purposes, the section will apply. Inevitably there will be marginal cases, where an expression is used which does not significantly indicate a charitable intention, and their Lordships do not propose to catalogue the expressions which will or will not attract the section. It may be sufficient to say that in the chequered history of this branch of the law the misuse of the words ‘benevolent’ and ‘philanthropic’ has more than any other disappointed the charitable intention of benevolent testators and that the section is clearly designed to save such gifts.’

Viscount Simonds
[1959] AC 457, [1959] UKPC 1, [1959] UKPC 9
Bailii, Bailii
Cited by:
CitedRe Lipinski’s Will Trusts ChD 1976
Harry Lipinski bequeathed his residuary estate on trust as to half for the Hull Judeans (Maccabi) Association to be used solely to construct and improve the new buildings for the association. The executors sought a determination whether the bequest . .
CitedHunt and Another v McLaren and others ChD 4-Oct-2006
Land had been given to a football club under a trust for its exclusive use as such. That land was sold and a new ground acquired and a stadium built, but the land was subject to restrictive covenenats limiting its use to sports, which considerably . .
CitedNeville Estates Ltd v Madden ChD 1962
A charitable trust was created for the benefit of the members of Catford Synagogue.
Held: The court considered three categories of valid non-charitable purpose gifts: (1) an absolute gift to members of an association at the date of the gift, . .

Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Leading Case

Updated: 02 November 2021; Ref: scu.245263

Chettiar v Chettiar: PC 14 Feb 1962

(Malaya) A father, in registering shares in the names of his children, had transferred the beneficial interest in those shares to them. Many years later the father had treated the shares as his own. The question arose as to whether this fact displaced the presumption of advancement.
Held: The presumption of advancement in a gift between father and son is not lightly to be displaced by evidence: ‘in the present case the plaintiff had of necessity to disclose his own illegality to the court and for this reason: He had not only to get over the fact that the transfer stated that the son paid $7000 for the land. He had also to get over the presumption of advancement, for whenever a father transfers property to his son, there is a presumption that he intended it as a gift to his son; and if he wishes to rebut that presumption and to say that he took as trustee for him, he must prove the trust clearly and distinctly, by evidence properly admissible for the purpose, and not leave it to be inferred from slight circumstances. see Shepherd v. Cartwright [1955] AC 431. The fact that the father received the income does not suffice . . The father had also to get over this pertinent question: If he intended the son to take as a trustee, why did he not insert on the memorandum of transfer the words ‘as trustee’ and register the trust as he could have done under section 160 of the Land Code?
‘In these circumstances it was essential for the father to put forward a convincing explanation why the transfer took the form it did, and the explanation he gave disclosed that he made the transfer for a fraudulent purpose, namely, to deceive the public administration . . Once this disclosure was made by the father, the courts were bound to take notice of it, even though the son had not pleaded it . .in the present case the father has of necessity to put forward,, and indeed, assert, his own fraudulent purpose, which he has fully achieved. He is met therefore by the principle stated long ago by Lord Mansfield ‘No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act,’ see Holman v. Johnson (1775) 1 Cowp. 341, 343).”

Lord Denning, Viscount Simonds
[1962] AC 294, [1962] UKPC 1, [1962] UKPC 4, [1962] 2 WLR 548, [1962] 2 All ER 238
Bailii, Bailii
Commonwealth
Citing:
CitedHolman v Johnson 5-Jul-1775
ex turpi causa non oritur actio
Mansfield LCJ set out the principle of ex turpi causa non oritur actio: ‘The objection, that a contract is immoral or illegal as between plaintiff and defendant, sounds at all times very ill in the mouth of the defendant. It is not for his sake, . .
See AlsoPalaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .

Cited by:
CitedLavelle v Lavelle and others CA 11-Feb-2004
Property had been purchased in the name of of the appellant by her father. She appealed a finding that the presumption of advancement had been rebutted.
Held: The appeal failed. The presumption against advancement had been rebutted on the . .
ApprovedTinsley v Milligan HL 28-Jun-1993
Two women parties used funds generated by a joint business venture to buy a house in which they lived together. It was vested in the sole name of the plaintiff but on the understanding that they were joint beneficial owners. The purpose of the . .
CitedCollier v Collier CA 30-Jul-2002
Fraudulent Intent Negated Trust
The daughter claimant sought possession of business premises from her father who held them under leases. He claimed an order that the property was held in trust for him. The judge that at the time the properties were conveyed, the father had been . .
See AlsoPalaniappa Chettiar v Arunasalam Chettiar PC 31-Jan-1962
Malaya . .

Lists of cited by and citing cases may be incomplete.

Trusts, Commonwealth

Leading Case

Updated: 02 November 2021; Ref: scu.194812

Greenwood v Fitt: 1961

greenwood_fittBC1961

(British Columbia) In the course of without prejudice negotiations, the defendant threatened that he would give perjured evidence and bribe other witnesses to perjure themselves unless the claimants withdrew their claim.
Held: The evidence of that conversation was itself admitted.

[1961] 29 DLR 1
Cited by:
CitedBerry Trade Ltd and Another v Moussavi and others CA 22-May-2003
A defendant appealed against an order admitting as evidence, records of ‘without prejudice’ conversations.
Held: Written and oral communications, which are made for the purpose of a genuine attempt to compromise a dispute between the parties, . .

Lists of cited by and citing cases may be incomplete.

Evidence, Commonwealth

Leading Case

Updated: 01 November 2021; Ref: scu.182474

British Coal Corporation v The King: PC 1935

The Board was asked as to the competency of a petition for special leave to appeal to the King in Council from a judgment of a court in Quebec in a criminal matter. The petitioners argued that notwithstanding the provisions of a Canadian statute which prohibited such appeals, this class of appeal was external to Canada, so that the Canadian legislature had no power to make provision affecting it.
Held: The Canadian legislature had power to prohibit appeals to the King in Council in criminal matters and that the petition before it was therefore incompetent.
It was to the King that any subject who had failed to get justice in the King’s Court brought his petition for redress, a petition brought to the King in Parliament or to the King in his Chancery.
Viscount Sankey LC set out the historical background of the Judicial Committee of the Privy Council. Its origins lay in the procedure whereby a party aggrieved by a decision of the Courts of the Channel Islands (and, later, by a decision of the Courts of the Plantations and Colonies) might petition the King in Council to exercise in his favour the sovereign’s royal prerogative as the fountain of justice. In a domestic context such petitions were brought to the King in Parliament (being the origin of the judicial functions of the House of Lords which are soon to be abolished) or to the King in Chancery (from which flowed the jurisdiction of the Court of Chancery).
The procedure for petitioning the King in Council had become loosely described as an appeal by the time the Judicial Committee Act 1833 was enacted. That Act created the Judicial Committee of the Privy Council as a statutory body. It provided that ‘all appeals or complaints in the nature of appeals whatever’ which had previously been brought before His Majesty in Council would now be referred by His Majesty to the Judicial Committee. Although the powers of the committee were limited to making a report or recommendations to His Majesty in Council, Viscount Sankey said that according to constitutional convention it was unknown and unthinkable that His Majesty in Council should not give effect to the report of the Judicial Committee ‘who are thus in truth an appellate court of law’.
Viscount Sankey LC said: ‘Parliament could, as a matter of abstract law, repeal or disregard section 4 of the Statute. But that is theory and has no relation to realities.’ and ‘It is doubtless true that the power of the Imperial Parliament to pass on its own initiative any legislation that it thought fit extending to Canada remains in theory unimpaired: indeed, the Imperial Parliament could, as a matter of abstract law, repeal or disregard s. 4 of the Statute.’

Viscount Sankey LC
[1935] AC 500, [1935] All ER Rep 139, [1935] UKPC 33
Bailii
Statute of Westminster 1931 4
Canada
Cited by:
CitedThe Attorney General for St Christopher and Nevis v Rodionov PC 20-Jul-2004
(St. Christopher and Nevis) The government of Canada requested the extradition of the respondent. The Attorney General sought special leave to appeal against the order for his discharge from custody, which had been on the grounds of the prejudice . .
CitedManuel and Others v Attorney-General; Noltcho and Others v Attorney-General ChD 7-May-1982
The plaintiffs were Indian Chiefs from Canada. They complained that the 1982 Act which granted independence to Canada, had been passed without their consent, which they said was required. They feared the loss of rights embedded by historical . .
CitedManuel and Others v HM Attorney General CA 30-Jul-1982
The plaintiffs as representatives of the Indian Tribes of Canada sought declarations that the 1982 Act which provided for the independence of Canada was invalid. They appealed the strike out of their claims, saying that they had not been consulted . .
CitedDavid Grant v Director of Correctional Services and Another; The Director of Public Prosecutions PC 14-Jun-2004
(Jamaica) The defendant had pleaded guilty to drugs offences in the US, and had fled to Jamaica. He appealed against a refusal of Habeas Corpus having been arrested and held for extradition. The Board considered its jurisdiction to hear such an . .
CitedSeaga v Harper (No 2) PC 29-Jun-2009
No conditional fees without country approval
(Jamaica) Jamaican domestic law did not allow conditional fees or for the recovery of an after the event insurance premium for costs. When the case was appealed to the Board, his English solicitors represented him under a conditional fee agreement . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.199435

Tai Hing Ltd v Liu Chong Hing Bank: PC 1985

(Hong Kong) The relationship between banker and customer is principally a contractual one between debtor and creditor. As between the banker and his customer, the risk of loss through forgery of the customer’s signature falls on the banker unless negligence or other disentitling conduct of the customer precludes the customer’s claim. No wider duty should be imposed on the customer beyond a duty not to act in a way that facilitates forgery and to make the bank aware of any known forgeries occurred: ‘The business of banking is the business not of the customer but of the bank. They offer a service, which is to honour their customer’s cheques when drawn upon an account in credit or within an agreed overdraft limit. If they pay out upon cheques which are not his, they are acting outside their mandate and cannot plead his authority in justification of their debit to his account. This is a risk of the service which it is their business to offer.’
The Board considered the need for the Board to follow earlier decisions of the House of Lords: ‘It was suggested, though only faintly, that even if English courts are bound to follow the decision in Macmillan’s case the Judicial Committee is not so constrained. This is a misapprehension. Once it is accepted, as in this case it is, that the applicable law is English, their Lordships of the Judicial Committee will follow a House of Lords’ decision which covers the point in issue. The Judicial Committee is not the final judicial authority for the determination of English law. That is the responsibility of the House of Lords in its judicial capacity. Though the Judicial Committee enjoys a greater freedom from the binding effect of precedent than does the House of Lords, it is in no position on a question of English law to invoke the Practice Statement (Judicial Precedent) [1966] 1 WLR 1234 of July 1966 pursuant to which the House has assumed the power to depart in certain circumstances from a previous decision of the House. And their Lordships note, in passing, the Statement’s warning against the danger from a House of Lords’ decision in a case where, by reason of custom, statute, or for other reasons peculiar to the jurisdiction where the matter in dispute arose, the Judicial Committee is required to determine whether English law should or should not apply. Only if it be decided or accepted (as in this case) that English law is the law to be applied will the Judicial Committee consider itself bound to follow a House of Lords’ decision.’

Lord Scarman
[1985] 2 All ER 947, [1985] 2 Lloyds Rep 313, [1985] 3 WLR 317, [1986] AC 80, [1985] UKPC 22
Bailii
England and Wales
Citing:
CitedLiverpool City Council v Irwin HL 31-Mar-1976
The House found it to be an implied term of a tenancy agreement that the lessor was to be responsible for repairing and lighting the common parts of the building of which the premises formed part. In analysing the different types of contract case in . .

Cited by:
CitedYorkshire Bank plc v Lloyds Bank plc CA 12-May-1999
A customer of the plaintiff, sent a cheque to the defendant, with an application for shares. The cheque was stolen whilst in the defendant’s custody, but the plaintiff at first debited the account, then re-credited the balance. The claim failed . .
CitedSandra Estelle Fielding v The Royal Bank of Scotland Plc CA 11-Feb-2004
The husband and wife had signed a bank mandate allowing the bank to act upon the authorisation of either of them. The wife complained that the bank should not be able to recover from her any sums expended by the husband.
Held: The mandate . .
CitedJames, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
CitedDonington Park Leisure Ltd v Wheatcroft and Son Ltd ChD 7-Apr-2006
Leave to apply was pursued under the provisions of a Tomlin order. The parties had disputed the extent to which parts of the order should be exhibited to the court.
Held: The Tomlin order should be amended to add terms necessary to give effect . .
CitedBlackpool and Fylde Aero Club Ltd v Blackpool Borough Council CA 25-May-1990
The club had enjoyed a concession from the council to operate pleasure flights from the airport operated by the council. They were invited to bid for a new concession subject to strict tender rules. They submitted the highest bid on time, but the . .
See AlsoTai Hing Cotton Mill Ltd v Liu Chong Hing Bank Ltd PC 5-Feb-1986
(Hong Kong) The Boad considered the costs payable for counsel on an appeal to the Board from Hong Kong . .
CitedWillers v Joyce and Another (Re: Gubay (Deceased) No 2) SC 20-Jul-2016
The Court was asked whether and in what circumstances a lower court may follow a decision of the Privy Council which has reached a different conclusion from that of the House of Lords (or the Supreme Court or Court of Appeal) on an earlier occasion. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Banking

Leading Case

Updated: 01 November 2021; Ref: scu.238119

Star Industrial Company Limited v Yap Kwee Kor trading as New Star Industrial Company: PC 26 Jan 1976

(Singapore) The plaintiff Hong Kong company had manufactured toothbrushes and exported them to Singapore, for re-export to Malaysia and Indonesia, but with some local sales as well. Their characteristic get-up included the words ‘ACE BRAND’ and a letter device. They stopped when the Singapore government imposed import duty on toothbrushes. Since then the plaintiff had not manufactured any toothbrushes for export to Singapore, it did not carry on any business in Singapore itself, and it had no intention of resuming its former trade. The defendant formed a company with a name similar to that of the plaintiff, and commenced marketing toothbrushes under the same get-up save that they used AGE instead. The plaintiff sued in Singapore for passing-off to restrain the defendant from using the name and get-up similar to that which the plaintiff had previously used.
Held: The claim failed.
Lord Diplock described the nature of passing off: ‘A passing off action is a remedy for the invasion of a right of property not in the mark, name or get-up improperly used, but in the business or goodwill likely to be injured by the misrepresentation made by passing off one person’s goods as the goods of another. Goodwill, as the subject of proprietary rights, is incapable of subsisting by itself. It has no independent existence apart from the business to which it is attached. It is local in character and divisible; if the business is carried on in several countries a separate goodwill attaches to it in each. So when the business is abandoned in one country in which it has acquired a goodwill the goodwill in that country perishes with it although the business may continue to be carried on in other countries. . . Once the Hong Kong Company had abandoned that part of its former business that consisted in manufacturing toothbrushes for export to and sale in Singapore it ceased to have any proprietary right in Singapore which was entitled to protection in any action for passing-off brought in the courts of that country.’
As to abandonment, if a business clearly ceases to trade with no intention of it being revived, then the goodwill is lost unless it is assigned. If not assigned then some intention to revive the business, even if not imminently, needs to be shown. It must be something more than mere possibility. An intention to resume may be more readily believed where the cessation was compelled by external circumstances

Lord Diplock
[1976] FSR 256, [1976] UKPC 2
Bailii
Commonwealth
Cited by:
CitedJules Rimet Cup Ltd v The Football Association Ltd. ChD 18-Oct-2007
The parties disputed on preliminary issues the ownership of the rights in the trade mark ‘World Cup Willie’. The claimant had set out to register the mark, and the defendant gave notice of its intention to oppose. The claimant now alleged threat and . .
CitedHotel Cipriani Srl and Others v Cipriani (Grosvenor Street) Ltd and Others CA 24-Feb-2010
The claimants owned Community and UK trade marks in the name ‘Cipriani’. The defendants operated a restaurant in London using, under the licence of another defendant, the same name. The claimant sought an injunction to prevent further use of the . .
CitedStarbucks (HK) Ltd and Another v British Sky Broadcasting Group Plc and Others SC 13-May-2015
The court was asked whether, as the appellants contended, a claimant who is seeking to maintain an action in passing off need only establish a reputation among a significant section of the public within the jurisdiction, or whether, as the courts . .
DoubtedOrkin Exterminating Co Inc v Pestco Co of Canada Ltd 10-Jun-1985
Canlii (Court of Appeal, Ontario) Torts — Passing off — Goodwill — Pest control company carrying on business in United States but not in Canada — Company having reputation among Canadian customers for . .
CitedBhayani and Another v Taylor Bracewell Llp IPEC 22-Dec-2016
Distinction between reputation and goodwill
The claimant had practised independently as an employment solicitor. For a period, she was a partner with the defendant firm practising under the name ‘Bhayani Bracewell’. Having departed the firm, she now objected to the continued use of her name, . .
Dicta ApprovedErven Warnink Besloten Vennootschap v J Townend and Sons (Hull) Limited (‘Advocaat’) HL 1979
The trademark was the name of a spirit-based product called ADVOCAAT. The product had gained a reputation and goodwill for that name in the English market and the defendants were seeking to take advantage of that name by misrepresenting that their . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 01 November 2021; Ref: scu.260079

Young v Canadian Northern Railway Company: PC 25 Nov 1930

Manitoba – Collective agreements have a function and value of their own which exists wholly independently of any individual contract of employment. Lord Russell referred to a ‘Wage Agreement’ entered into between the appellant’s trade union and the Canadian Railway War Board, and said: ‘it does not appear to their Lordships to be a document adapted for conversion into or incorporation with a service agreement, so as to entitle master and servant to enforce inter se the terms of thereof . It consists of some 188 ‘rules’, which the railway companies contract with Division No. 4 to observe. It appears to their Lordships to be intended merely to operate as an agreement between a body of employers and a labour organisation by which the employers undertake that as regards their workmen, certain rules beneficial to the workmen shall be observed. By itself it constitutes no contract between any individual employee and the company which employs him. If an employer refused to observe the rules, the effective sequel would be, not an action by any employee, not even an action by Division no.4 against the employer for specific performance or damages, but the calling of a strike until the grievance was remedied.’

Lord Russell
[1931] AC 83, [1930] UKPC 94
Bailii
Commonwealth
Cited by:
CitedThe Highland Council v TGWU and Unison EAT 3-Jun-2008
EAT EQUAL PAY ACT: Equal value

Equal Pay claims. Whether letters sent to local authority employers by unions prior to coming into force of the statutory grievance procedures met the requirements of regulation . .
CitedAlexander v Standard Telephones and Cables Ltd (No. 2) 1991
alexander_standard1991
The court considered under what circumstances a collective agreement between an employer and trades unions would be incorporated into an individual employee’s contract: ‘The so-called ‘normative effect’ by which it can be inferred that provisions of . .
CitedGeorge v The Ministry of Justice CA 17-Apr-2013
The claimant appealed against rejection of his claim that the respondent had broken his contract of employment as a prison officer by changing the collective agreement for prisons officers. The judge had found that the respective terms were not . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 01 November 2021; Ref: scu.276940

Goldman v Hargrave: PC 13 Jun 1966

(Australia) In Western Australia, a red gum tree was struck by lightning and set on fire. The appellant had the tree cut down, but took no reasonable steps by spraying the fire with water to prevent the fire from spreading, believing that it would burn itself out. The fire spread to neighbouring property.
Held: An occupier of land is under a general duty of care in relation to hazards, whether natural or man-made, occurring on his land to remove or reduce such hazards to his neighbour. The existence of the duty is based on the knowledge of the hazard, the ability to foresee the consequences of not checking or removing it and the ability to abate it by taking reasonable measures. Risks such as the spread of fire are not ones which, without more, call for the imposition of any risk based liability; liability if any must be based upon some antecedent creation of risk or some subsequent fault.
Lord Wilberforce said: ‘the tort of nuisance, uncertain in its boundary, may comprise a wide variety of situations, in some of which negligence plays no part, in others of which it is decisive’. And ‘one may say in general terms that the existence of a duty must be based upon a hazard, ability to foresee the consequences of not checking or not removing it, and the ability to abate it.’
The occupier here was in breach of his duty of care for failing to extinguish a fire which had started by natural causes. The defendant was found to be negligent because he chose not to put the fire out, but to let it burn itself out instead. This erroneous decision allowed a wind to revive the fire which then spread to the plaintiff’s property.
In the case of fire there was no difference between a fire that started from natural causes and one that had been started by human agency. Lord Wilberforce said: ‘Their Lordships would first observe, with regard to the suggested distinction, that it is well designed to introduce confusion into the law. As regards many hazardous conditions arising on land, it is impossible to determine how they arose – particularly is this the case as regards fires. If they are caused by human agency, the agent, unless detected in flagrante delicto, is hardly likely to confess his fault. And is the occupier, when faced with the initial stages of a fire, to ask himself whether the fire is accidental or man-made before he can decide upon his duty? Is the neighbour whose property is damaged bound to prove the human origin of the fire? The proposition involves that if he cannot do so, however irresponsibly the occupier has acted, he must fail. But the distinction is not only inconvenient, it lacks, in their Lordships’ view, any logical foundation.
Within the class of situations in which the occupier is himself without responsibility for the origin of the fire, one may ask in vain what relevant difference there is between a fire caused by a human agency, such as a trespasser, and one caused by act of God or nature. A difference in degree – as to the potency of the agency – one can see but none that is in principle relevant to the occupier’s duty to act. It was suggested as a logical basis for the distinction that in the case of a hazard originating in an act of man, an occupier who fails to deal with it can be said to be using his land in a manner detrimental to his neighbour and so to be within the classical field of responsibility in nuisance, whereas this cannot be said when the hazard originates without human action so long at least as the occupier merely abstains. The fallacy of this argument is that, as already explained, the basis of the occupier’s liability lies not in the use of his land: in the absence of ‘adoption’ there is no such use; but in the neglect of action in the face of something which may damage his neighbour. To this, the suggested distinction is irrelevant.’

Wilberforce, Perason, Morris of Borth-y-Gest, Reid LL
[1967] 1 AC 645, [1966] 3 WLR 513, [1966] 2 All ER 989, [1966] UKPC 2, [1966] UKPC 12
Bailii, Bailii
Australia
Citing:
CitedRylands v Fletcher HL 1868
The defendant had constructed a reservoir to supply water to his mill. Water escaped into nearby disused mineshafts, and in turn flooded the plaintiff’s mine. The defendant appealed a finding that he was liable in damages.
Held: The defendant . .

Cited by:
CitedThames Water Utilities Limited v Marcic CA 7-Feb-2002
The claimant owned land over which sewage and other water had spilled from the appellant’s sewage works. His claim having been dismissed under Rylands v Fletcher, and there being no statutory means of obtaining compensation, the judge was asked to . .
CitedBritish Railways Board v Herrington HL 16-Feb-1972
Land-owner’s Possible Duty to Trespassers
The plaintiff, a child had gone through a fence onto the railway line, and been badly injured. The Board knew of the broken fence, but argued that they owed no duty to a trespasser.
Held: Whilst a land-owner owes no general duty of care to a . .
CitedLeakey v The National Trust for Places of Historic Interest or Natural Beauty CA 31-Jul-1979
Natural causes were responsible for soil collapsing onto neighbouring houses in Bridgwater.
Held: An occupier of land owes a general duty of care to a neighbouring occupier in relation to a hazard occurring on his land, whether such hazard is . .
CitedTransco plc v Stockport Metropolitan Borough Council HL 19-Nov-2003
Rylands does not apply to Statutory Works
The claimant laid a large gas main through an embankment. A large water supply pipe nearby broke, and very substantial volumes of water escaped, causing the embankment to slip, and the gas main to fracture.
Held: The rule in Rylands v Fletcher . .
CitedDelaware Mansions Limited and others v Lord Mayor and Citizens of the City of Westminster HL 25-Oct-2001
The landowner claimed damages for works necessary to remediate damage to his land after encroachment of tree roots onto his property.
Held: The issue had not been properly settled in English law. The problem was to be resolved by applying a . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedSmith v Littlewoods Organisation Limited (Chief Constable, Fife Constabulary, third party); Maloco v Littlewoods Organisation Ltd HL 1987
The defendant acquired a semi derelict cinema with a view to later development of the site. A fire started by others spread to the pursuer’s adjoining property.
Held: The defendants were not liable in negligence. The intervention of a third . .
CitedOverseas Tankship (UK) Ltd v Miller Steamship Co Pty (The Wagon Mound) (No 2) PC 25-May-1966
(New South Wales) When considering the need to take steps to avoid injury, the court looked to the nature of defendant’s activity. There was no social value or cost saving in this defendant’s activity. ‘In the present case there was no justification . .
CitedGabriel v Kirklees Metropolitan Council CA 24-Mar-2004
The claimant (aged 6) sought damages after being hurt when other children playing on a building site threw stones from the site, hitting him as he passed by.
Held: The case raised questions of law and it was incumbent on the judge to provide . .
CitedGorringe v Calderdale Metropolitan Borough Council HL 1-Apr-2004
Statutory Duty Not Extended by Common Law
The claimant sought damages after a road accident. The driver came over the crest of a hill and hit a bus. The road was not marked with any warning as to the need to slow down.
Held: The claim failed. The duty could not be extended to include . .
CitedStockley v Knowsley Metropolitan Borough Council CA 1986
A council owned a two-storey building divided into four flats, one of which was occupied by the plaintiff. It failed to prevent frozen water pipes in the roof of the building (which was outside the demise to the plaintiff) from bursting and flooding . .
CitedBybrook Barn Garden Centre Ltd and Others v Kent County Council CA 8-Jan-2001
A culvert had been constructed taking a stream underneath the road. At the time when it came into the ownership of the local authority, it was adequate for this purpose. Later developments increased the flow, and the culvert came to become an . .
CitedLMS International Ltd and others v Styrene Packaging and Insulation Ltd and others TCC 30-Sep-2005
The claimants sought damages after their premises were destroyed when a fire started in the defendants neighbouring premises which contained substantial volumes of styrofoam. They alleged this was an unnatural use of the land.
Held: To . .
CitedLambert and Others v Barratt Homes Ltd (Manchester Division) and Another QBD 17-Feb-2009
The claimant sought damages in nuisance and negligence saying that in constructing a new housing estate, they had altered the land in such a way as to lead to the repeated flooding of their home.
Held: Both the developer and the council were . .
CitedLambert and Others v Barratt Homes Ltd and Another CA 16-Jun-2010
The claimants had bought houses from the first defendants, who in turn had bought the land from Rochdale, the second defendants. In preparing the land for construction the first defendants were said to have negligently filled in a drainage culvert . .
CitedPage Motors v Epsom Borough Council CA 9-Jul-1981
The plaintiffs were lessees of land neighbouring that of the Council. Over several years the council’s land had been occupied by gypsies who, it was said had damaged the plaintiff’s business. Though the Council had obtained a possession order in . .
DeterminativeStannard (T/A Wyvern Tyres) v Gore CA 4-Oct-2012
The defendant, now appellant, ran a business involving the storage of tyres. The claimant neighbour’s own business next door was severely damaged in a fire of the tyres escaping onto his property. The court had found him liable in strict liability . .
CitedStagecoach South Western Trains Ltd v Hind and Another TCC 11-Jun-2014
A train crash was caused when an ash tree fell from the defendant’s land across the railway line. The company sought damages from the land-owner.
Held: The land-owner’s duty extended no further than the carrying out of periodic informal or . .
CitedNetwork Rail Infrastructure Ltd v Williams and Another CA 3-Jul-2018
Japanese Knotweed escape is nuisance
The defendant appealed against an order as to its liability in private nuisance for the escape of Japanese Knotweed from its land onto the land of the claimant neighbours. No physical damage to properties had yet been shown, but the reduction in . .
CitedMiller v Jackson CA 6-Apr-1977
The activities of a long established cricket club had been found to be a legal nuisance, because of the number of cricket balls landing in the gardens of neighbouring houses. An injunction had been granted to local householders who complained of . .

Lists of cited by and citing cases may be incomplete.

Nuisance, Negligence

Leading Case

Updated: 01 November 2021; Ref: scu.179685

Calvin v Carr: PC 15 Jan 1979

(New South Wales) It was argued that a decision of the stewards of the Australian Jockey Club was void for having been made in breach of the rules of natural justice.
Held: The stewards were entitled to use the evidence of their eyes and their experience in reaching their decision. The appeal process was an essentially domestic proceeding ‘in which experience and opinion as to what is in the interest of racing as a whole play a large part, and in which the standards are those which have come to be accepted over the history of this sporting activity.’
Following the Leary case: ‘In their Lordships’ judgment, such intermediate cases exist. In them, it is for the court . . to decide whether at the end of the day, there has been a fair result reached by fair methods . . Naturally there may be instances when the defect is so flagrant, the consequences so severe, that the most perfect appeals or rehearings will not be sufficient to produce a just result . . There may also be cases when the appeal process itself is less than perfect: it may be vitiated by the same defect as the original proceedings: or short of that there may be doubts whether the appeal body embarked on its task without predisposition or whether it had the means to make a full and fair enquiry, for example where it has no material but a transcript of what was before the original body. In such cases it would no doubt be right to quash the original decision.’
and ‘What is important is the recognition that such cases exist, and that it is undesirable in many cases of domestic disputes, particularly in which an inquiry and appeal process has been established, to introduce too great a measure of formal judicialisation.’
Lord Wilberforce said: ‘those who have joined in an organisation or contract, should be taken to have agreed to accept what in the end is a fair decision, notwithstanding some initial defect’. The Board considered whether there was a general rule that internal appellate proceedings could cure a defect caused by a failure of natural justice in the original proceedings: ‘. . . their Lordships recognise and indeed assert that no clear and absolute rule can be laid down on the question whether defects in natural justice appearing at the original hearing, whether administrative or quasi-judicial, can be ‘cured’ through appeal proceedings. The situations in which this issue arises are too diverse, and the rules by which they are governed so various, that this must be so.’
and ‘This argument led necessarily into the difficult area of what is void and what is voidable, as to which some confusion exists in the authorities. Their Lordships opinion would be, if it became necessary to fix on one or other of these expressions, that a decision made contrary to natural justice is void, but that, until it is so declared by a competent body or court, it may have some effect, or existence, in law. This condition might be better expressed by saying that the decision is invalid or vitiated. In the present context, where the question is whether an appeal lies, the impugned decision cannot be considered as totally void, in the sense of being legally non-existent. So to hold would be wholly unreal.’

Wilberforce, Dilhorne, Hailsham of St Marylebone, Keith of Kinkel LL
[1979] UKPC 1, [1979] 2 All ER 440, [1980] AC 574, [1979] 2 WLR 755
Bailii, Bailii
Australia
Citing:
Applied but limitedLeary v National Union of Vehicle Builders 1971
The court faced questions on a trades union’s decision as to the membership of the applicant.
Held: As a general rule, ‘a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body.’ . .

Cited by:
CitedRegina (DR) (AM) v St George’s Catholic School and Others, Regina (A) v Kingsmead School Governors and Another CA 13-Dec-2002
The applicants appealed the refusal of judicial review of the refusals of their appeals against exclusion from school.
Held: The Act provided a full appeal procedure from the initial decision of the school’s head teacher, first to the . .
CitedBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
CitedFlaherty v National Greyhound Racing Club Ltd CA 14-Sep-2005
The club regulated greyhound racing. The claimant had complained that its disciplinary proceedings had been conducted unfairly. He said that a panel member had an interest as veterinary surgeon in the proceedings at the stadium at which the alleged . .
CitedWhitbread and Co plc v Mills EAT 1988
Where there had been defects in the procedure adopted at a disciplinary hearing, an appeal which was restricted to a review and was not a rehearing could not remedy the defects of the original hearing.
As to the case of Calvin v Carr: . .
CitedTaylor v OCS Group Ltd CA 31-May-2006
The employer appealed against findings of unfair dismissal and disability discrimination. The employee worked in IT. He was profoundly deaf, but could lip read and read sign language. He had been accused of obtaining improper access to a senior . .
CitedLondon and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
CitedMcKeown v British Horseracing Authority QBD 12-Mar-2010
The jockey claimant challenged disciplinary proceedings brought against him by the defendant authority.
Held: The findings were upheld in part but remitted for consideration of giving the claimant opportunity to challenge certain evidence. . .
CitedLloyd v McMahon HL 12-Mar-1987
The district auditor had issued a certificate under the 1982 Act surcharging the appellant councillors in the sum of 106,103, pounds being the amount of a loss incurred or deficiency caused, as the auditor found, by their wilful misconduct.
CitedMajera, Regina (on The Application of v Secretary of State for The Home Department SC 20-Oct-2021
The Court was asked whether the Government can lawfully act in a manner which is inconsistent with an order of a judge which is defective, without first applying for, and obtaining, the variation or setting aside of the order. The appellant had been . .

Lists of cited by and citing cases may be incomplete.

Administrative, Employment, Commonwealth, Natural Justice

Leading Case

Updated: 01 November 2021; Ref: scu.245736

Liyanage and others v The Queen: PC 2 Dec 1965

liyanagePC196502

The defendants appealed against their convictions for conspiracy to wage war against the Queen, and to overawe by criminal force the Government of Ceylon. It was said that the description of the offence committed had been redefied after the attempted coup in order to criminalise the defendants’ acts: ‘They were clearly aimed at particular known individuals who had been named in a White Paper and were in prison awaiting their fate. The fact that the learned judges declined to convict some of the prisoners is not to the point. That the alterations in the law were not intended for the generality of the citizens or designed as any improvement of the general law, is shown by the fact that the effect of those alterations was to be limited to the participants in the January coup and that after these had been dealt with by the judges, the law should revert to its normal state.’ Hel: These alterations constituted a grave and deliberate incursion into the judicial sphere. Quite bluntly, their aim was to ensure that the judges in dealing with these particular persons on these particular charges were deprived of their normal discretion as respects appropriate sentences. They were compelled to sentence each offender on conviction to not less than ten years’ imprisonment, and compelled to order confiscation of his possessions, even though his part in the conspiracy might have been trivial.
‘If such Acts as these were valid the judicial power could he wholly absorbed by the legislature and taken out of the hands of the judges. It is appreciated that the legislature had no such general intention. It was beset by a grave situation and it took grave measures to deal with it, thinking, one must presume, that it had power to do so and was acting rightly. But that consideration is irrelevant, and gives no validity to acts which infringe the Constitution. What is done once, if it be allowed, may be done again and in a lesser crisis and less serious circumstances. And thus judicial power may be eroded. Such an erosion is contrary to the clear intention of the Constitution. In their Lordships’ view the Acts were ultra vires and invalid.’

Morris of Brth-y-Gest, MacDermott, Guest, Pearson LL
[1965] UKPC 1, [1966] 2 WLR 682, [1967] 1 AC 259, [1966] 1 All ER 650
Bailii
Ceylon Independence Act 1947
Citing:
CitedCampbell v Hall 1774
The appellant argued that, since the Crown had had no power to make laws for the colony of Ceylon which offended against fundamental principles, at independence it could not hand over to Ceylon a higher power than it possessed itself.
Held: . .
CitedDona Maria Abeyesekera Hamini and Others v Daniel Tillekeratne PC 26-Feb-1897
Ceylon – The Board considered the validity of a retrospective Order in Council. . .
CitedIbralebbe Alias Rasa Wattan Another v The Queen PC 6-Nov-1963
Ceylon – the joint effect of the Order in Council of 1946 and the Act of 1947 was intended to and did have the result of giving to the Ceylon Parliament the full legislative powers of a sovereign independent State. . .
CitedThe Bribery Commissioner v Ranasinghe PC 5-May-1964
S.29 of the Ceylon (Constitution) Order in Council 1946 gave the Ceylon Parliament power to make laws for the peace, order and good government of the island. S.29(4) gave it the power to ‘amend or repeal any of the provisions of this Order’; but . .

Cited by:
CitedMisick, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 1-May-2009
The former premier of the Turks and Caicos Islands sought to challenge the constitutionality of the 2009 order which was to allow suspension of parts of the Constitution and imposing a direct administration, on a final report on alleged corruption. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.247445

Attorney General of the Commonwealth of Australia v Adelaide Steamship Company: PC 1913

ag_adeleaidePC1913

There was an agreement between a group of colliery owners and a group of shipowners which was ancillary to an agreement between the colliery owners themselves. Each agreement was in restraint of trade.
Held: Lord Parker explained the doctrine of restraint of trade: ‘Monopolies and contracts in restraint of trade have this in common, that they both, if enforced, involve a derogation from the common law right in virtue of which any member of the community may exercise any trade or business he pleases and in such manner as he thinks best in his own interests.’
and ‘Contracts in restraint of trade were subject to somewhat different considerations. There is little doubt that the common law in the earlier stages of its growth treated all such contracts as contracts of imperfect obligation, if not void for all purposes; they were said to be against public policy in the sense that it was deemed impolitic to enforce them.’
and ‘It is only necessary to add that no contract was ever an offence at common law merely because it was in restraint of trade. The parties to such a contract, even if unenforceable, were always at liberty to act on it in the manner agreed. Similarly combinations, not amounting to contracts, in restraint of trade were never unlawful at common law. To make any such contract or combination unlawful it must amount to a criminal conspiracy, and the essence of a criminal conspiracy is a contract or combination to do something unlawful, or something lawful by unlawful means. The right of the individual to carry on his trade or business in the manner he considers best in his own interests involves the right of combining with others in a common course of action, provided such common course of action is undertaken with a single view to the interests of the combining parties and not with a view to injure others

Lord Parker
[1913] AC 781
Citing:
CitedMogul Steamship Co Ltd v McGregor, Gow and Co HL 18-Dec-1891
An association of shipowners agreed to use various lawful means to dissuade customers from shipping their goods by the Mogul line.
Held: The agreement was lawful in the sense that it gave the Mogul Company no right to sue them. But (majority) . .

Cited by:
CitedEsso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd HL 1968
Agreement in Restraint of Trade Unenforceable
The defendant ran two garages under solus agreements with the plaintiffs who complained when the defendants began to purchase petrol from cheaper alternative sources. The House was asked whether the solus agreements were be regarded in law as an . .
CitedNorris v United States of America and others HL 12-Mar-2008
The detainee appealed an order for extradition to the USA, saying that the offence (price-fixing) was not one known to English common law. The USA sought his extradition under the provisions of the Sherman Act.
Held: It was not, and it would . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Commercial

Leading Case

Updated: 01 November 2021; Ref: scu.259685

Meerabux v The Attorney General of Belize: PC 23 Mar 2005

(Belize) The applicant complained at his removal as a justice of the Supreme Court, stating it was unconstitutional. The complaint had been decided by a member of the Bar Council which had also recommended his removal, and he said it had been decided in private.
Held: It was not suggested that the chairman had any pecuniary interest. A judge of the Supreme court had to be qualified as a barrister, and therefore be a member of the Bar Council in order to sit. Those framing the constitution must have anticipated this apparent conflict, and a chairman should therefore not be automatically disqualified. Not every proceeding must be held in public. The BAC was not a judicial body. The rules of the BAC were designed to ensure fairness, and they were not impugned by the proceedings, nor their privacy.

Lord Hoffmann, Lord Slynn of Hadley, Lord Hope of Craighead, Lord Walker of Gestingthorpe, Lord Carswell
[2005] UKPC 12, Times 20-Apr-2005, [2005] 2 WLR 1307, [2005] 2 AC 513
Bailii, PC
Belize Constitution 98(4)
Commonwealth
Citing:
CitedRegina v Bow Street Metropolitan Stipendiary Magistrate, ex parte Pinochet Ugarte (No 2) HL 15-Jan-1999
A petition was brought to request that a judgment of the House be set aside because the wife of one their lordships, Lord Hoffmann, was as an unpaid director of a subsidiary of Amnesty International which had in turn been involved in a campaign . .
CitedPorter and Weeks v Magill HL 13-Dec-2001
Councillors Liable for Unlawful Purposes Use
The defendant local councillors were accused of having sold rather than let council houses in order to encourage an electorate which would be more likely to be supportive of their political party. They had been advised that the policy would be . .
CitedDimes v Proprietors of Grand Junction Canal and others HL 26-Jun-1852
The Lord Chancellor, Lord Cottenham, owned a substantial shareholding in the defendant canal which was an incorporated body. He sat on appeal from the Vice-Chancellor, whose judgment in favour of the company he affirmed. There was an appeal on the . .
CitedIn Re Medicaments and Related Classes of Goods (No 2); Director General of Fair Trading v Proprietary Association of Great Britain and Proprietary Articles Trade Association CA 21-Dec-2000
The claimants alleged that a connection between a member of the Restrictive Practices Court, who was to hear a complaint and another company, disclosed bias against them. She had not recused herself.
Held: When asking whether material . .
CitedRegina v Gough (Robert) HL 1993
The defendant had been convicted of robbery. He appealed, saying that a member of the jury was a neighbour to his brother, and there was therefore a risk of bias. This was of particular significance as the defendant was charged with conspiracy with . .
CitedLawal v Northern Spirit Limited HL 19-Jun-2003
Counsel appearing at the tribunal had previously sat as a judge with a tribunal member. The opposing party asserted bias in the tribunal.
Held: The test in Gough should be restated in part so that the court must first ascertain all the . .
CitedLeeson v Council of Medical Education and Registration 1889
Mere membership of an association by which proceedings are brought does not disqualify a judge from hearing the case, but active involvement in the institution of the particular proceedings does. Here, mere membership of the Medical Defence Union . .
CitedAllinson v General Council of Medical Education and Registration 1894
The mere ex officio membership of the committee of the Medical Defence Union was held to be insufficient to disqualify the member from sitting on the disciplinary panel. . .
CitedPellegrin v France ECHR 8-Dec-1999
The court modified the approach taken in earlier decisions, that there are excluded from the scope of article 6(1) disputes raised by public servants whose duties typify the specific activities of the public service in so far as the latter is acting . .
CitedRegina (Holding and Barnes plc) v Secretary of State for Environment Transport and the Regions; Regina (Alconbury Developments Ltd and Others) v Same and Others HL 9-May-2001
Power to call in is administrative in nature
The powers of the Secretary of State to call in a planning application for his decision, and certain other planning powers, were essentially an administrative power, and not a judicial one, and therefore it was not a breach of the applicants’ rights . .
CitedStewart v Secretary of State for Scotland (Scotland) HL 22-Jan-1998
The dismissal of a Scottish Sheriff ‘for inability’ is not limited in meaning to either mental or physical infirmity, but can also include simple incompetence. The fact that the inquiry into the sherriff’s unfitness was conducted in private was not . .
CitedStewart v Secretary of State for Scotland IHCS 1996
The House considered the test of unfitness of a Sherriff: ‘. . what has to be shown is that he is not really capable of performing the proper function of a judge at all.’ . .

Cited by:
CitedGillies v Secretary of State for Work and Pensions HL 26-Jan-2006
The claimant said that the medical member of the tribunal which had heard his disability claim was biased. The doctor was on a temporary contract and also worked for an agency which contracted directly the Benfits Agency. The court of session had . .
CitedRegina v Abdroikof, Regina v Green; Regina v Williamson HL 17-Oct-2007
The House was asked whether a jury in criminal trials containing variously a Crown Prosecution Service solicitor, or a police officer would have the appearance of bias. In Abdroikof, the presence of the police officer on the jury was discovered only . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedHelow v Secretary of State for the Home Department and Another HL 22-Oct-2008
The appellant, a Palestinian, challenged the involvement of Lady Cosgrove as a judge in her case, saying that Lady Cosgrove’s involvement as a jew in pro-Jewish lobby organisations meant that there was an appearance of bias. The applicant had sought . .
CitedKaur, Regina (on The Application of) v Institute of Legal Executives Appeal Tribunal and Another CA 19-Oct-2011
The claimant appealed against rejection of judicial review of a finding that she had effectively cheated at a professional examination for the Institute. She compained that the presence of a director and the council’s vice-president of the Institute . .

Lists of cited by and citing cases may be incomplete.

Legal Professions, Constitutional, Natural Justice

Updated: 01 November 2021; Ref: scu.223880

Kuruma v The Queen: PC 8 Dec 1954

(Court of Appeal for Eastern Africa) The defendant appealed against his conviction for unlawful possession of ammunition, saying that the evidence had been obtained by unlawful means, and should not have been admitted against him.
Held: Lord Goddard said: ‘In their Lordships’ opinion the test to be applied in considering whether evidence is admissible is whether it is relevant to the matters in issue. If it is, it is admissible and the court is not concerned with how the evidence was obtained. While this proposition may not have been stated in so many words in any English case there are decisions which support it, and in their Lordships’ opinion it is plainly right in principle.’ However, the court retains a wide discretion to exclude evidence, and: ‘There can be no difference in principle for this purpose between a civil and a criminal case. No doubt in a criminal case the judge always has a discretion to disallow evidence if the strict rules of admissibility would operate unfairly against an accused…. If, for instance, some admission of some piece of evidence, e.g., a document, had been obtained from a defendant by a trick, no doubt the judge might properly rule it out’.

Lord Goddard LCJ
[1955] AC 197, [1954] UKPC 43, [1955] 2 WLR 223, [1955] Crim LR 339, (1955) 119 JP 157, [1955] Crim LR 69, [1955] 1 All ER 236
Bailii
Commonwealth
Citing:
ApprovedRegina v Leathem 1861
The court overruled an objection to production of a letter which had been discovered in consequence of an inadmissible statement made by the accused: ‘It matters not how you get it; if you steal it even, it would be admissible.’ . .

Cited by:
ConfirmedDubai Aluminium Co Ltd v Al Alawi and Others ComC 3-Dec-1998
The claimants had brought proceedings against their former sales manager for accepting bribes and secret commission from outsiders. In support of their claim the claimants had obtained a search and seizure order and a worldwide freezing injunction, . .
ModifiedJones v University of Warwick CA 4-Feb-2003
The claimant appealed a decision to admit in evidence a tape recording, taken by an enquiry agent of the defendant who had entered her house unlawfully.
Held: The situation asked judges to reconcile the irreconcilable. Courts should be . .
CitedA and others v Secretary of State for the Home Department (No 2) HL 8-Dec-2005
The applicants had been detained following the issue of certificates issued by the respondent that they posed a terrorist threat. They challenged the decisions of the Special Immigration Appeals Commission saying that evidence underlying the . .
CitedRegina v Sang HL 25-Jul-1979
The defendant appealed against an unsuccessful application to exclude evidence where it was claimed there had been incitement by an agent provocateur.
Held: The appeal failed. There is no defence of entrapment in English law. All evidence . .
CitedAttorney General’s Reference No. 3 of 1999 HL 14-Dec-2000
An horrific rape had taken place. The defendant was arrested on a separate matter, tried and acquitted. He was tried under a false ID. His DNA sample should have been destroyed but wasn’t. Had his identity been known, his DNA could have been kept . .
CitedThe Public Prosecution Service v Elliott and Another CANI 28-Sep-2011
The prosecutor appealed against dismissal of the case based upon fingerprint evidence. The prints had been taken digitally using a device which had not been approved as required. . .
CitedPublic Prosecution Service v McKee SC 22-May-2013
Non-approval didn’t devalue fingerprints
The court was asked: ‘what are the statutory consequences if the fingerprints of a defendant have been taken in a police station in Northern Ireland by an electronic device for which the legislation required approval from the Secretary of State, . .

Lists of cited by and citing cases may be incomplete.

Criminal Evidence

Leading Case

Updated: 01 November 2021; Ref: scu.179806

Prebble v Television New Zealand Ltd: PC 27 Jun 1994

(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of Parliamentary privilege.
Held: A Defendant may not use libel proceedings to impugn proceedings in Parliament in his defence though the proceedings might accordingly be stayed. ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament.’ This provision is part of the wider principle that the courts and Parliament are both astute to recognise their constitutional roles.
Lord Browne-Wilkinson said: ‘In addition to Article 9 itself, there is a long line of authority which supports a wider principle, of which Article 9 is merely one manifestation, viz. that the courts and Parliament are both astute to recognise their respective constitutional roles. So far as the courts are concerned they will not allow any challenge to be made to what was said or done within the walls of Parliament in performance of its legislative function and protection of its established privileges.’
The ‘case illustrate[s] how public policy, or human rights, issues can conflict. There are three such issues in play in these cases: first, the need to ensure that the legislature can exercise its powers freely on behalf of its electors, with access to all relevant information; second, the need to protect freedom of speech generally; third, the interests of justice in ensuring that all relevant evidence is available to the courts. Their Lordships are of the view that the law has been long settled that, of these three public interests, the first must prevail. But the other two public interests cannot be ignored and their Lordships will revert to them in considering the question of a stay of proceedings.
For these reasons (which are in substance those of the courts below) their Lordships are of the view that parties to litigation, by whomsoever commenced, cannot bring into question anything said or done in the House by suggesting (whether by direct evidence, cross-examination, inference or submission) that the actions or words were inspired by improper motives or were untrue or misleading. Such matters lie entirely within the jurisdiction of the House . .’

Lord Browne-Wilkinson, Lord keith, Lord Goff, Lord Mustill, Lord Nolan
Times 13-Jul-1994, Gazette 26-Oct-1994, [1995] 1 AC 321, [1994] 3 NZLR 1, [1994] 3 WLR 970
Bailii
Bill of Rights 1689 9
England and Wales
Citing:
CitedComalco Ltd v Australian Broadcasting Corporation 1983
(Supreme Court of the Australian Capital Territory) Hansard was admissible to show what had been said in the Queensland Parliament as a matter of fact, without the need for the consent of Parliament. Blackburn CJ added: ‘I think that the way in . .
CitedSir Francis Burdett, Bart v The Right Hon Charles Abbot KBD 1811
Speaker’s Powers to Arrest House Members
To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking . .
CitedStockdale v Hansard 1839
Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the . .
CitedJohn Joseph Stockdale v James Hansard, Luke Graves Hansard, Luke James Hansard, And Luke Henry Hansard 1839
It is no defence in law to an action for publishing a libel that the defamatory matter is part of a document which was, by order of the House of Comnions, laid before the House, and thereupon became part of the proceedings of the House, and which . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedRex v Eliot, Hollis and Valentine 1629
Proceedings were taken in the King’s Bench against three members of the House of Commons, who were charged with seditious speeches, contempt of the King (Charles I) in resisting the adjournment of the House and with conspiracy to keep the Speaker in . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
Not followedWright and Advertiser Newspapers Limited v Lewis 1990
(Supreme Court of South Australia) L, a member of the South Australia House of Assembly, alleged in the House that W had obtained an advantage from his close association with a former Government. W wrote to the newspaper, which published it, . .
CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedAdam v Ward HL 1917
The plaintiff, Major Adam MP, falsely attacked General Scobell in a speech in the House of Commons, thus bringing his charge into the national arena. The Army Council investigated the charge, rejected it and directed their secretary, Sir E Ward, the . .
CitedDerbyshire County Council v Times Newspapers Ltd and Others HL 18-Feb-1993
Local Council may not Sue in Defamation
Local Authorities must be open to criticism as political and administrative bodies, and so cannot be allowed to sue in defamation. Such a right would operate as ‘a chill factor’ on free speech. Freedom of speech was the underlying value which . .
CitedNews Media Ownership v Finlay 1970
(New Zealand Court of Appeal ) The plaintiff, a Member of Parliament, brought libel proceedings against a newspaper in respect of an article appearing in the newspaper which alleged that the plaintiff had been acting improperly and for purposes of . .

Cited by:
CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent of its property . .
CitedThe Bahamas District of the Methodist Church in the Caribbean and the Americas and Others v The Hon Vernon J Symonette M P Speaker of the House of Assembly and 7 Others (No 70 of 1998) and Ormond Hilton Poitier and 14 Others v The Methodist Church PC 26-Jul-2000
PC (The Bahamas) The Methodist community had split, eventually leading to a new Act. Others now challenged the constitionality of the Act, and that lands had been transferred in breach of the constitution.
CitedReynolds v Times Newspapers Ltd and others HL 28-Oct-1999
Fair Coment on Political Activities
The defendant newspaper had published articles wrongly accusing the claimant, the former Prime Minister of Ireland of duplicity. The paper now appealed, saying that it should have had available to it a defence of qualified privilege because of the . .
CitedHarmon CFEM Facades (UK) Limited v The Corporate Officer of The House of Commons TCC 28-Oct-1999
The claimant said that the respondent had awarded a contract for works at the House of Commons disregarding its obligations under European law as regards open tendering. . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedHamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
CitedCountryside Alliance and others v HM Attorney General and others Admn 29-Jul-2005
The various claimants sought to challenge the 2004 Act by way of judicial review on the grounds that it was ‘a disproportionate, unnecessary and illegitimate interference with their rights to choose how they conduct their lives, and with market . .
CitedWeir and others v Secretary of State for Transport and Another ChD 14-Oct-2005
The claimants were shareholders in Railtrack. They complained that the respondent had abused his position to place the company into receivership so as to avoid paying them compensation on a repurchase of the shares. Mr Byers was accused of ‘targeted . .
CitedBradley and Others, Regina (on the Application of) v Secretary of State for Work and Pensions Admn 21-Feb-2007
The claimant had lost his company pension and complained that the respondent had refused to follow the recommendation of the Parliamentary Commissioner for Administration that compensation should be paid.
Held: The court should not rely on . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedAge UK, Regina (On the Application of) v Attorney General Admn 25-Sep-2009
Age UK challenged the implementation by the UK of the Directive insofar as it established a default retirement age (DRA) at 65.
Held: The claim failed. The decision to adopt a DRA was not a disproportionate way of giving effect to the social . .
CitedRegina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield CC 11-Jun-2010
(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedShergill and Others v Khaira and Others SC 11-Jun-2014
The parties disputed the trusts upon which three Gurdwaras (Sikh Temples) were held. The Court of Appeal had held that the issues underlying the dispute were to be found in matters of the faith of the Sikh parties, and had ordered a permanent stay. . .
CitedMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Distinguished on the factsBlake v Associated Newspapers Ltd QBD 31-Jul-2003
The claimant, a former Anglican priest, sued in defamation. The defendant argued that the claim was non-justiciable since it would require the court to adjudicate on matters of faith and religious doctrine.
Held: The claim could not be heard. . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Leading Case

Updated: 01 November 2021; Ref: scu.85015

Oakes v Commissioner of Stamp Duties of New South Wales: PC 1953

oakes_csdnswPC1954

A father made a gift of land in favour of himself and his four children in equal shares but then retained wide powers of management for which he reserved the right to charge remuneration.
Held: The donor was entirely excluded from the subject-matter of the gift, which was the four fifths interest given to the children, and that his retention of powers of management did not affect the matter. This was because the donor is entirely excluded if he only holds the property in a fiduciary capacity and deals with it in accordance with his fiduciary duty. But the right to charge remuneration was a different matter. This amounted to a benefit to the donor by contract or otherwise.
Lord Reid referred to St Aubin and said: ‘it is now clear that it is not sufficient to bring a case within the scope of these sections to take the situation as a whole and find that the settlor has continued to enjoy substantial advantages which have some relation to the settled property ; it is necessary to consider the nature and source of each of these advantages and determine whether or not it is a benefit of such a kind as to come within the scope of the section’

Lord Reid
[1954] AC 57, [1953] 2 All ER 92
Citing:
CitedSt Aubyn v Attorney General HL 12-Jul-1951
The donor exercised powers of appointment ‘to make some part of the settled property his own’, and it was ‘wholly irrelevant that by a contemporaneous or later transaction he surrenders his life interest in other parts of it’. The different parts of . .

Cited by:
CitedIngram and Palmer-Tomkinson (Executors of the Estate of Lady Jane Lindsay Morgan Ingram Deceased) v Commissioners of Inland Revenue CA 28-Jul-1997
The deceased had first conveyed property to her solicitor. Leases back were then created in her favour, and then the freeholds were conveyed at her direction to her children and grandchildren. They were potentially exempt transfers.
Held: . .
CitedIn re Nichols, deceased CA 2-Jan-1975
The father, Lord Nichols, gave property to his sons who then leased it back to him. On the father’s death the revenue claimed duty.
Held: Goff LJ: ‘Having thus reviewed the authorities, we return to the question what was given, and we think . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Stamp Duty

Leading Case

Updated: 01 November 2021; Ref: scu.223763

Attorney General of Hong Kong v Yip Kai Foon: PC 7 Dec 1987

High Court of Hong Kong – The prosecutor appealed against a quashing of a conviction on a charge of handling stolen goods. The defendant had been charged with robbery with handling as an alternative provided under statute.
Held: Where there are true alternative charges of re;lated offences, a jury must acquit on both charges unless one or the other can be proved beyond reasonable doubt to the exclusion of the other.
Lord Ackner said: ‘In their Lordships’ opinion the trial judge, but for the injection into his summing up of the passage quoted above from Chan Tat v R [1973] HKLR 114 at 119, directed the jury quite properly as to the way in which they should approach a count of robbery and the alternative offence of handling. The jury were required to approach the matter by two stages. First, they had to ask themselves whether they were satisfied beyond reasonable doubt that the respondent was guilty of robbery. This would involve rejecting the respondent’s evidence and then being satisfied, so that they felt sure, that the ballistic evidence linked the respondent with the robberies or either of them. If they were not so satisfied, they would then proceed to the second stage, and ask themselves whether the prosecution had satisfied them in relation to each of the ingredients of the alternative offences of handling, which the judge had spelt out with great clarity. Of course, if less than a majority were in favour of convictions of robbery and less than a majority in favour of convictions of handling, then the judge would have to discharge the jury and order a new trial. This case gave rise to no special difficulty or complication.’

Lord Brandon of Oakbrook, Lord Ackner, Lord Oliver of Aylmerton, Sir John Stephenson, Sir Edward Eveleigh
[1987] UKPC 35, [1987] UKPC 4, [1988] 1 All ER 15, (1988) 86 Cr App R 368, [1988] AC 642, [1988] 2 WLR 326
Bailii, Bailii
England and Wales
Citing:
CitedRegina v James Langmead CCCR 1864
The defendant was indicted and tried at Devon Quarter Sessions on two counts, the first count for stealing and the second count for feloniously receiving a number of sheep, the property of Mr. Glanfield, a neighbouring farmer of the Parish of . .
CitedAndrea Obonyo v Regina 1962
East Africa ‘When a person is charged with theft [and the judge told the jury that they could read for ‘theft’, ‘robbery’ because it includes ‘theft’] and, in the alternative, with receiving, and the sole evidence connecting him with the offences is . .

Lists of cited by and citing cases may be incomplete.

Crime

Leading Case

Updated: 01 November 2021; Ref: scu.443481

Maridakis v Kouvaris: 1975

(Supreme Court of the Northern Territory, Australia) The tenant walked out on a lease. He returned the keys and left the premises. The landlord then closed and secured the premises and sought a replacement tenant. The landlord was, however, very particular about a replacement. He could have re-let the premises much earlier than he did.
Held: The landlord was under no duty to mitigate by taking steps to re-let the premises. The handing over and acceptance of the key, the securing of the premises and advertisements seeking a replacement for the tenant had not amounted to an acceptance by the landlord of the tenant’s repudiation of the terms of the lease. Only when a fresh lease was granted to a new tenant would a surrender of the unexpired portion of the lease occur.

Ward J
(1975) 5 ALR 197
Australia
Cited by:
CitedReichman and Another v Beveridge CA 13-Dec-2006
The defendants were tenants of the claimant. They vacated the premises and stopped paying the rent. The claimant sought payment of the arrears of rent. The defendants said that the claimants should have taken steps to reduce their damages by seeking . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Landlord and Tenant

Leading Case

Updated: 01 November 2021; Ref: scu.396617

Green v Broadcasting Corporation of New Zealand: PC 18 Jul 1989

Format of TV show not copyrightable

Court of Appeal of New Zealand – The plaintiff had developed the program ‘Opportunity Knocks’ on British television. He claimed copyright in the general structure or format of a similar television programme in New Zealand, and also in passing off. By ‘dramatic format’ the appellant meant the characteristic features of the show which were repeated in each performance. These were the title, the use of various catch phrases, the use of a device called a ‘clapometer’ to monitor audience reaction and the use of sponsors to introduce competitors.
Held: The format of the show was not was a dramatic work protected by copyright. The evidence given to the court was particularly diffuse, taling of gimmicks, such as the use of a ‘clapometer’, and there was no sufficient unity or coherence for a dramatic work to exist under copyright law.
Lord Bridge said: ‘It is stretching the original use of the word ‘format’ a long way to use it metaphorically to describe the features of a television series such as a talent, quiz or game show which is presented in a particular way, with repeated but unconnected use of set phrases and with the aid of particular accessories. Alternative terms suggested in the course of argument were ‘structure’ or ‘package’. This difficulty in finding an appropriate term to describe the nature of the ‘work’ in which the copyright subsists reflects the difficulty of the concept that a number of allegedly distinctive features of a television series can be isolated from the changing material presented in each separate performance (the acts of the performers in the talent show, the question and answers in the quiz show etc.) and identified as an ‘original dramatic work’. No case was cited to their Lordships in which copyright of the kind claimed had been established.
The protection which copyright gives creates a monopoly and ‘there must be certainty in the subject matter of such monopoly in order to avoid injustice to the rest of the world:’ Tate v Fulbrook [1908] 1 KB 821, per Farwell J . . The subject matter of the copyright claimed for the ‘dramatic format’ of ‘Opportunity Knocks’ is conspicuously lacking in certainty. Moreover, it seems to their Lordships that a dramatic work must have sufficient unity to be capable of performance and that the features claimed as constituting the ‘format’ of a television show, being unrelated to each other except as accessories to be used in the presentation of some other dramatic or musical performance, lack that essential characteristic.’

Lord Bridge
[1989] RPC 700, [1989] UKPC 26
Bailii
England and Wales
Citing:
ApprovedTate v Fulbrook 1908
Farwell LJ said of the Copyright Acts: ‘The Act creates a monopoly, and in such a case there must be certainty in the subject-matter of such monopoly in order to avoid injustice to the rest of the world.’ Copyright subsists in different categories . .
CitedFrancis Day and Hunter Limited v 20th Century Fox Corporation Limited PC 12-Oct-1939
(Ontario) Copyright protection was asserted on in connection with the title to a film (‘The Man Who Broke the Bank at Monte Carlo’).
Held: It was not a literary work capable of attracting copyright protection. As a rule, such titles do not . .
Appeal fromGreen v Broadcasting Corporation of New Zealand 22-Sep-1988
(Court of Appeal of New Zealand) The plaintiff had created a hugely sucessful TV programme in the UK, called Opportunity Knocks. He now appealed against rejection of his claim in copyright alleging that the defendant had copied the format, and also . .

Cited by:
CitedIPC Media Ltd v Highbury-Leisure Publishing Ltd ChD 21-Dec-2004
The claimant magazine publisher alleged breach of copyright by the defendant in their magazine, as to the cover page designs used. It was not clear just which cover was said to have been copied.
Held: The first step in a copyright action is . .
CitedBaigent and Another v The Random House Group Ltd (The Da Vinci Code) ChD 7-Apr-2006
The claimants alleged infringement of copyright by the defendant publishers and author in the plot and otherwise in the book ‘The Da Vinci Code’. They said that their own work had been copied substantially, using themes and copying language. The . .
CitedNova Productions Ltd v Mazooma Games Ltd and others ChD 20-Jan-2006
The claimant alleged copyright infringement in respect of computer games in the coin operated video market. It was said not that the games copied bitmap graphics, but rather the composite frames which appeared on the screen.
Held: The games . .
CitedMeakin v British Broadcasting Corporation and Others ChD 27-Jul-2010
The claimant alleged that the proposal for a game show submitted by him had been used by the various defendants. He alleged breaches of copyright and of confidence. Application was now made to strike out the claim. . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property

Leading Case

Updated: 01 November 2021; Ref: scu.231500

Maritime National Fish Ltd v Ocean Trawlers Ltd: PC 12 Apr 1935

(Nova Scotia En Banco) The parties contracted for a charter of a fishing ship. It then became unlawful for a ship to use otter trawl, the only equipment available to the ship, without a licence, but the number of licences was restricted and did not include this ship. The charterers claimed that the contract was frustrated. The Supreme Court of Canada had said that the contract remaned binding since the charterers had selected other ships to be licensed.
Held: The decision to opt to licence other ships determined the appeal in favour of the owners. The loss of the St. Cuthbert’s licence was correctly described, quoad the appellants as ‘a self induced frustration.’
Lord Wright, referred to criticism of Krell v. Henry and said: ‘The authority is certainly not one to be extended: it is particularly difficult to apply where, as in the present case, the possibility of the event relied on as constituting a frustration of the adventure (here the failure to obtain a licence) was known to both parties when the contract was made, but the contract entered into was absolute in terms so far as concerned that known possibility. It may be asked whether in such cases there is any reason to throw the loss on those who have undertaken to place the thing or service for which the contract provides at the other party’s disposal and are able and willing to do so.’

Atkin, Tomlin, MacMillan, Wright LL
[1935] UKPC 1, [1935] AC 524, [1935] UKPC 20
Bailii, Bailii
Citing:
CitedBank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .
CitedKrell v Henry CA 1903
Mr Henry contracted to rent a flat located on Pall Mall from the plaintiff, Paul Krell for the daytime and on the days of the forthcoming cornation procession.. He was told that he would have an excellent view of, but this was not written down. He . .
CitedHirji Mulji v Cheong Yue Steamship Co PC 1926
Lord Sumner described the doctrine of frustration as ‘a device by which the rule as to absolute contracts are reconciled with a special exception which justice demands.’ . .
CitedBank Line Ltd v Arthur Capel and Co HL 12-Dec-1918
The defendant ship-owners contracted to lease the ship on charter to the plaintiffs. Before the term, the ship was requisitioned for the war effort. The plaintiffs did not exercise the contractual right given to them to cancel the charterparty. The . .

Cited by:
CitedGold Group Properties Ltd v BDW Trading Ltd TCC 3-Mar-2010
The parties had contracted for the construction of an estate of houses and flats to be followed by the interim purchase by the defendants. The defendants argued that the slump in land prices frustrated the contract and that they should not be called . .
CitedNorth Shore Ventures Ltd v Anstead Holdings Inc and Others ChD 21-Jun-2010
Claim was made under a substantial loan where payments had not been made after assets were sequestered and only released after four years. . .
CitedGamerco Sa v ICM Fair Warning (Agency) Ltd and Another QBD 31-Mar-1995
The plaintiff Spanish concert promoter, and the defendant rock group, Guns ‘n’ Roses, agreed to provide a concert at the stadium of Atetico Madrid, but shortly before it was due to take place, the stadium was deemed unfit, and its licence withdrawn. . .

Lists of cited by and citing cases may be incomplete.

Commonwealth, Contract

Leading Case

Updated: 31 October 2021; Ref: scu.245727

Lee Ting Sang v Chung Chi-Keung: PC 8 Mar 1990

Deciding Whether person was an employee

(Hong Kong) The Board considered the conclusion that the applicant stone mason was not an employee of the defendant: ‘even if I leaned towards the opposite conclusion, it would nevertheless be quite impossible for me to say that no tribunal correctly directing itself on the law could reasonably have reached the conclusion under appeal.’
Lord Griffiths said: ‘Whether or not a person is employed under a contract of service is often said in the authorities to be a mixed question of fact and law . . where, as in the present case, the relationship has to be determined by an investigation and evaluation of the factual circumstances in which the work is performed, it must now be taken to be firmly established that the question of whether or not the work was performed in the capacity of an employee or as an independent contractor is to be regarded by an appellate court as a question of fact to be determined by the trial court. At first sight it seems rather strange that this should be so, for whether or not a certain set of facts should be classified under one legal head rather than another would appear to be a question of law. . [but] in O’Kelly v. Trusthouse Forte Plc. [1984] Q.B. 90 the Court of Appeal . . held that whether or not a waiter was employed under a contract of employment within the meaning of the Employment Protection (Consolidation) Act 1978 was a question of mixed fact and law, and that the finding of an industrial tribunal on this issue, from which an appeal lay on a point of law only, could only be impugned if it could be shown that the tribunal correctly directing itself on the law could not reasonably have reached the conclusion under appeal.’ and
‘Their Lordships conclude that reliance upon these two dicta culled from cases of a wholly dissimilar character, may have misled the courts below in their assessment of the facts of this case and amount in the circumstances to an error of law justifying setting aside what are to be regarded as concurrent findings of fact.
Their Lordships are further of the opinion that the facts of the present case point so clearly to the existence of a contract of service that the finding that the applicant was working as an independent contractor was, to quote the words of Viscount Simonds in Edwards v. Bairstow [1956] A.C. 14, 29, `a view of the facts which could not reasonably be entertained’ and is to be regarded as an error law.’

Lord Griffiths
[1990] ICR 409, [1990] 2 AC 374, [1990] UKPC 1, [1990] UKPC 9, [1990] IRLR 236
Bailii, Bailii, Bailii
England and Wales
Citing:
CitedEdwards (Inspector of Taxes) v Bairstow HL 25-Jul-1955
The House was asked whether a particular transaction was ‘an adventure in the nature of trade’.
Held: Although the House accepted that this was ‘an inference of fact’, on the primary facts as found by the Commissioners ‘the true and only . .

Cited by:
CitedClark v Oxfordshire Health Authority CA 18-Dec-1997
A nurse was employed under a contract, under which there was no mutuality of obligation; she could refuse work and employer need offer none. This meant that there was no employment capable of allowing an unfair dismissal issue to arise.
Sir . .
CitedYuen v The Royal Hong Kong Golf Club PC 28-Jul-1997
(Hong Kong) The applicant was dismissed as a golf caddie after nine years. The Club denied that he had ever been an employee. He was issued by the club with a number, a uniform and a locker. Caddying work was allocated to available caddies in strict . .
CitedGeorge Wimpey UK Ltd v VI Construction Ltd CA 3-Feb-2005
A land purchase contract had been rectified by the judge for unilateral mistake. A factor had been dropped from a formula for calculating the price.
Held: The judge’s conclusion that the circumstances existed to allow a rectification was . .
CitedAutoclenz Ltd v Belcher and Others CA 13-Oct-2009
Car Valeters contracts misdescribed their Duties
The claimants worked cleaning cars for the appellants. They said that as workers they were entitled to holiday pay. The appellant said they were self-employed.
Held: The contract purported to give rights which were not genuine, and the . .
CitedHalawi v WDFG UK Ltd (T/A World Duty Free) CA 28-Oct-2014
The claimant said that she had been discriminated against on the grounds of her religion. She worked as a beauty consultant at the airport, but through a limited company. Her airside pass had been withdrawn. She now appealed against rejection of her . .

Lists of cited by and citing cases may be incomplete.

Employment

Leading Case

Updated: 31 October 2021; Ref: scu.194297

Battan Singh v Amirchand: PC 1948

(Supreme Court of Fiji) The will was declared invalid because the testator had lacked testamentary capacity, although the judge had rejected the allegation that the will was invalid for want of knowledge and approval.
Held: Lord Normand discussed and approved the implication of Parker v Felgate: ‘That case decided that if a testator has given instructions to a solicitor at a time when he was able to appreciate what he was doing in all its relevant bearings, and if the solicitor prepares the will in accordance with these instructions, the will will stand good, though at the time of execution the testator is capable only of understanding that he is executing the will which he has instructed, but is no longer capable of understanding the instructions themselves or the clauses in the will which give effect to them.’ and ‘A testator may have a clear apprehension of the meaning of the draft will submitted to him and may approve it, and yet if he was at the time through infirmity or disease so deficient in memory that he was oblivious of the claims of his relations, and if that forgetfulness is an inducing cause of his choosing strangers to be his legatees, the will is invalid.’
Lord Normand
[1948] AC 161
Citing:
ApprovedParker and Another v Felgate and Tilly ChD 7-Jul-1883
Capacity to execute Will once instructions given
A will was challenged on the basis of alleged lack of capacity. The testatrix had capacity when instructing her solicitor, but suffered from Bright’s disease which affected her kidney, and she fell into a coma before it was prepared. She was roused . .

Cited by:
CitedPerrins v Holland and Another ChD 31-Jul-2009
The son of the deceased challenged the testamentary capacity of the testator and further claimed under the 1975 Act. The deceased was disabled and had substantial difficulty communicating.
Held: The will was validly made. Logically it is . .
CitedPerrins v Holland and Others; In re Perrins, deceased CA 21-Jul-2010
The testator had given instructions for his will and received a draft will. The judge had found that he had capacity to make the will when he gave instructions but not when it was executed. The will having been made in accordance with his . .

Lists of cited by and citing cases may be incomplete.
Updated: 16 October 2021; Ref: scu.374721

Eagle Star Insurance Co Ltd v Provincial Insurance Plc: PC 24 May 1993

Two insurance companies were liable to contribute equally to an amount payable to a third party. The doctrine of contribution could be modified by contract and the matter should be considered by reference to the parties’ contractual liabilities.
Lord Woolf
Times 09-Jun-1993, [1994] 1 AC 130, [1993] UKPC 22
Bailii
Citing:
Not FollowedLegal and General Assurance Society Ltd v Drake Insurance Co Ltd CA 15-Jan-1991
An insurance company, having paid under the policy to a doubly insured party, sought contribution from the second insurer, who had not been notified of the claim by the insured. The claim for a contribution was one in equity, but since the company . .

Cited by:
CitedBolton 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 . .
CitedThe National Farmers Union Mutual Insurance Society Ltd v HSBC Insurance (UK) Ltd ComC 19-Apr-2010
Gavin Kealey QC DHCJ set out the concept of double insurance: ‘Double insurance arises where the same party is insured with two (or more) insurers in respect of the same interest on the same subject-matter against the same risks. If a loss by a . .
CitedZurich Insurance Plc UK Branch v International Energy Group Ltd SC 20-May-2015
A claim had been made for mesothelioma following exposure to asbestos, but the claim arose in Guernsey. Acknowledging the acute difficultis particular to the evidence in such cases, the House of Lords, in Fairchild. had introduced the Special Rule . .

Lists of cited by and citing cases may be incomplete.
Updated: 15 October 2021; Ref: scu.80208

Canadian Aero Service Ltd v O’Malley: 1973

(Supreme Court Canada) Mr O’Malley and Dr Zarzycki were senior officers of the claimant (‘Canaero’). Having attempted, unsuccessfully, to procure a contract for Canaero to carry out a topographical survey and mapping of part of Guyana, they resigned from the company. Subsequently, they incorporated their own company, Terra Surveys Ltd (‘Terra’). Terra was successful, shortly afterwards, in obtaining the contract for the topographical survey and mapping. Canaero brought a claim against Mr O’Malley, Dr Zarzycki and Terra. The argument concentrated on breach of fiduciary duty; which was not how the case had been argued below. Laskin J: ‘Descending from the generality, the fiduciary relationship goes at least this far: a director or a senior officer like [the defendants] is precluded from obtaining for himself, either secretly or without the approval of the company (which would have to be properly manifested on full disclosure of the facts), any property or business advantage either belonging to the company or for which it has been negotiating; and especially is this so when the director or officer is a participant in the negotiations on behalf of the company . . An examination of the case law in this Court and in the Courts of other like jurisdictions on the fiduciary duties of directors and senior officers shows the pervasiveness of an ethic in this area of the law. In my opinion, this ethic disqualifies a director or other senior officer from usurping for himself or diverting to another person or company with whom or with which he is associated a maturing business opportunity which his company is actively pursuing; he is also precluded from so acting even after his resignation where the resignation may fairly be said to have been prompted or influenced by a wish to acquire for himself the opportunity sought by the company, or where it was his position with the company rather than a fresh initiative that led him to the opportunity which he later acquired.’ Referring to Regal (Hastings) neither the ‘no conflict’ rule nor the ‘no profit’ rule should be considered as ‘the exclusive touchstones of liability.’: ‘In this, as in other branches of the law, new fact situations may require a reformulation of existing principles to maintain its vigour in the new setting.’
Laskin J
(1973) 40 DLR (3d) 371
Canada
Cited by:
CitedCMS Dolphin Ltd v Paul M Simonet and Another ChD 23-May-2001
The claimant asserted that the defendant had, having at one point been a creative director of the claimant, left to set up an alternate competing business, and diverted business from the first company to the new one. There had been disagreements . .
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .

Lists of cited by and citing cases may be incomplete.
Updated: 14 October 2021; Ref: scu.183219

Singh v Rainbow Court Townhouses Ltd: PC 19 Jul 2018

(Trinidad and Tobago)
Lord Reed, Lord Kerr, Lord Carnwath, Lord Hughes, Lady Black
[2018] UKPC 19
Bailii
England and Wales
Citing:
CitedShaw v Applegate CA 1977
There was a covenant against the use of a property as an amusement arcade. Within three years the purchaser had installed amusement machines, but it was not until three years later that the plaintiffs issued proceedings for an injunction and . .
CitedWilmott v Barber ChD 19-Jun-1880
The lessee of three acres of land agreed in January, 1874, to let one acre to the Plaintiff for the whole of the residue of his term, and he agreed also to sell to the Plaintiff his interest in the whole three acres at any time within five years . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 September 2021; Ref: scu.621122

The Citizens Life Assurance Company Limited v Brown: PC 6 May 1904

(New South Wales) A malicious libel was alleged. The life assurance company was vicariously liable in respect of a libel contained in a circular sent out by a person who was employed by the company under a written agreement as its ‘superintendent of agencies’. By the terms of the agreement that person was to devote his whole time to furthering the company’s business and was to be paid a salary weekly as well as a commission on policies procured by him.
Held: He was a servant of the company for whose actions the company was liable. Once companies are recognised by the law as legal persons, they are liable to have the mental states of agents and employees such as dishonesty or malice attributed to them for the purpose of establishing civil liability.
Lord Lindley said: ‘If it is once granted that corporations are for civil purposes to be regarded as persons, ie as principals acting by agents and servants, it is difficult to see why the ordinary doctrines of agency and of master and servant are not to be applied to corporations as well as to ordinary individuals.’
Lord Lindley
[1904] UKPC 20, [1904] AC 423
Bailii
Australia
Citing:
RejectedAbrath v North Eastern Railway Co HL 15-Mar-1886
The plaintiff had brought an action against the company of malicious prosecution. It was rejected by the jury and again on appeal.
Held: The appeal failed. In an action for damages for the tort of malicious prosecution one of the elements of . .

Cited by:
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others SC 22-Apr-2015
The liquidators of Bilta had brought proceedings against former directors and the appellant alleging that they were party to an unlawful means conspiracy which had damaged the company by engaging in a carousel fraud with carbon credits. On the . .
CitedJetivia Sa and Another v Bilta (UK) Ltd and Others CA 31-Jul-2013
Defendants appealed against refusal of their request for a summary striking out for lack of jurisdiction, of the claims against them arising from their management of the insolvency of the first defendant. . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.419585

Victorian Railway Commissioners v Coultas: PC 21 Jan 1888

(Victoria) The appellant’s gatekeeper had negligently invited the plaintiffs to cross a railway line as a train approached. There was no collision, but the plaintiff sought damages for physical and mental injuries from shock.
Held: The defendant’s appeal on liability succeeded. It was difficult, if not impossible, to recover damages for ‘illness which was the effect of shock caused by fright’. Such injury was regarded as being too remote a head of damages in an action for negligence. There would be evidential difficulty in deciding upon the causes of psychiatric symptoms. Mere sudden terror unaccompanied by actual physical injury could not in such circumstances be considered a consequence which in the ordinary course would flow from the negligence of the gate keeper.
‘Damages arising from mere sudden terror unaccompanied by any actual physical injury, but occasioning a nervous or mental shock, cannot under such circumstances, their Lordships think, be considered a consequence which, in the ordinary course of things, would flow from the negligence of the gate-keeper. If it were held that they can, it appears to their Lordships that it would be extending the liability for negligence much beyond what that liability has hitherto been held to be.’
Fitzgeral, Hobnouse LL, Sir Barnes Peacock, Sir Richard Couch
(1888) 13 App Cas 222, [1888] UKPC 3, (1888) LR 13 App Cas 222
Bailii
Australia
Cited by:
DistinguishedWilkinson v Downton 8-May-1997
Thomas Wilkinson, the landlord of a public house, went off by train, leaving his wife Lavinia behind the bar. A customer of the pub, Downton played a practical joke on her. He told her, falsely, that her husband had been involved in an accident and . .
Not FollowedDulieu v White and Sons KBD 1901
A pregnant barmaid suffered nervous shock causing her to give premature birth as a result of the tortfeasor’s horse van bursting into her bar at the Bonner Arms in Bethnal Green from the roadway. The defendant pleaded that the damages claimed were . .
CitedWainwright and another v Home Office HL 16-Oct-2003
The claimant and her son sought to visit her other son in Leeds Prison. He was suspected of involvement in drugs, and therefore she was subjected to strip searches. There was no statutory support for the search. The son’s penis had been touched . .
CitedAlcock and Others v Chief Constable of South Yorkshire Police QBD 31-Jul-1990
Overcrowding at a football match lead to the deaths of 95 people. The defendant’s employees had charge of safety at the match, and admitted negligence vis-a-vis those who had died and been injured. The plaintiffs sought damages, some of them for . .
CitedOPO v MLA and Another CA 9-Oct-2014
The claimant child sought to prevent publication by his father of an autobiography which, he said, would be likely to cause him psychological harm. The father was well known classical musician who said that he had himself suffered sexual abuse as a . .
CitedRhodes v OPO and Another SC 20-May-2015
The mother sought to prevent a father from publishing a book about her child’s life. It was to contain passages she said may cause psychological harm to the 12 year old son. Mother and son lived in the USA and the family court here had no . .

Lists of cited by and citing cases may be incomplete.
Updated: 22 August 2021; Ref: scu.186859

Siu Yin Kwan and Another v Eastern Insurance Co Ltd: PC 16 Dec 1993

Insurers are liable to undisclosed principals on an indemnity policy, provided it was made with the range of their authority. The claim arose out of the death of two seamen on their employers’ vessel but the employers were not named in the relevant policy.
Lord Lloyd said: ‘There are two reasons why their Lordships prefer the decision in Mark Rowlands . . In the first place the words ‘event or events’ in section 2, while apt to describe the loss of the vessel are hardly apt to describe . . liability arising under the common law, as a consequence of the loss of the vessel. Secondly, section 2 must take colour from the short title and preamble to Section 1. By no stretch of the imagination could indemnity insurance be described as a ‘mischievous kind of gaming’. Their Lordships are entitled to give section 2 a meaning which corresponds with the obvious legislative intent.’
Lord Lloyd of Berwick said: ‘For present purposes the law can be summarised shortly. (1) An undisclosed principal may sue and be sued on a contract made by an agent on his behalf, acting within the scope of his actual authority. (2) In entering into the contract, the agent must intend to act on the principal’s behalf. (3) The agent of an undisclosed principal may also sue and be sued on the contract. (4) Any defence which the third party may have against the agent is available against his principal. (5) The terms of the contract may, expressly or by implication, exclude the principal’s right to sue, and his liability to be sued. The contact itself, or the circumstances surrounding the contract, may show that the agent is the true and only principal.’
Lord Lloyd
Gazette 02-Feb-1994, Times 16-Dec-1993, [1994] 2 AC 199, [1994] 1 All ER 213, [1994] 2 WLR 370
Insurance Act 1774 2
Commonwealth
Citing:
AppliedMark Rowlands v Berni Inns Ltd CA 1985
The plaintiff owned the freehold and had let the basement to the defendant. The plaintiff insured the building. The defendant covenanted to pay to the plaintiff an insurance rent equal to the proportionate cost of insuring the part of the building . .

Cited by:
CitedFeasey v Sun Life Assurance Company of Canada and Another: Steamship Mutual Underwriting Association (Bermuda) Ltd v Feasey ComC 17-May-2002
The fact that there was more than one insurance policy in place for the same interest would not preclude a claim under one of them. A mutual underwriting group insured members against personal injury and so forth through ‘lineslip’ policies. The . .
CitedBanca Nazionale Del Lavoro Spa v Playboy Club London Ltd and Others SC 26-Jul-2018
The Playboy casino required a reference for a customer, but asked for this through a third party. The bank was not aware of the agency but gave a good reference for a customer who had never deposited any money with them and nor to whom it had issued . .

Lists of cited by and citing cases may be incomplete.
Updated: 11 August 2021; Ref: scu.89287

Sirdar Gurdyal Singh v The Rajah of Faridkote: PC 28 Jul 1894

(Punjab) THe Rajah of Faridkote had obtained in the Civil Court of Faridkote (a native state) ex parte judgments against Singh (his former treasurer), which he sought to enforce in Lahore, in British India. Singh was not then resident in Faridkote and did not appear in the actions or otherwise submit to the jurisdiction. It was argued, for the Rajah, that the Faridkote court had jurisdiction over Singh because, ‘[b]y becoming state treasurer, [he] submitted himself to the jurisdiction of the Faridkote Court, for where a man takes office in a state he must be deemed to have agreed to be bound by the jurisdiction of that state as accounting for money due from him to that state in respect of that office. In any case, where an office is accepted in that way, and the whole cause of action arises in that state, there is jurisdiction which is obligatory on the acceptor’Held: The Board rejected the argument.
Lord Selborne LC, speaking for the Privy Council, said of an agreement or consent to the jurisdiction of a foreign court being implied or inferred, that ‘such obligation, unless expressed, could not be implied’
Lord Selborne LC
[1894] UKPC 44, [1894] AC 670
Bailii
England and Wales
Citing:
CitedSchibsby v Westenholz CA 1980
The parties were both Danish, the plaintiffs resident in France and the defendants in London. The plaintiffs now sought to enforce a judgment obtained against the defendangt in France in default of their appearance. The defendants had no property in . .

Cited by:
CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .
CitedEmanuel v Symon CA 1908
Kennedy LJ confirmedtaht the Faridkote case had decided of a suggested obligation to submit to a foreign jurisdiction that it: ‘was not to be implied from the mere fact of entering into a contract in a foreign country’. . .
CitedMattar and Saba v Public Trustee 1952
Alberta Appellate Division – The court denied enforcement of a Quebec judgment on promissory notes, and held that an agreement to submit to the jurisdiction of a foreign court is not to be implied from the fact that the defendant has entered into a . .
CitedAdams v Cape Industries plc ChD 1990
The piercing of the veil argument was used to attempt to bring an English public company, which was the parent company of a group which included subsidiaries in the United States, within the jurisdiction of the courts of the United States. Where a . .
CitedVizcaya Partners Ltd v Picard and Another PC 3-Feb-2016
No Contractual Obligation to Try Case in New York
(Gibraltar) The appellant had invested in a fraudulent Ponzi scheme run by Bernard Madoff. They were repaid sums before the fund collapsed, and the trustees now sought repayment by way of enforcement of an order obtained in New York.
Held: The . .

Lists of cited by and citing cases may be incomplete.
Updated: 09 August 2021; Ref: scu.417560

The Director General, Mauritius Revenue Authority v Paradis Brabant Hotel (Mauritius) (Rev 1): PC 23 Jul 2013

The issue before the Committee concerned the appropriate rate of Hotel and Restaurant Tax (‘HRT’) applicable to taxable receipts in respect of supplies made by each of the fifteen or sixteen respondents, in connection with its hotel and/or restaurant business.
Lord Neuberger, Lord Wilson, Lord Carnwath, Lord Toulson, Sir Paul Girvan
[2013] UKPC 24
Bailii
England and Wales

Updated: 07 August 2021; Ref: scu.514150

Geyer v Downs and another: 1977

(High Court of Australia) A pupil suffered injuries when hit by a softball bat by a fellow pupil at playing the game in the school playground before school. There was no supervision. The jury awarded the appellant damages. The verdict was set aside by the court of appeal.
Held: The appeal to the High Court was allowed: ‘It was urged for the respondent that there was no duty of supervision owed to the children before ‘school hours’. That expression was taken in the present case to mean the period of time beginning at 9.00 am, at which the ‘Daily Routine’ stated that the playgrounds were to be supervised. Reliance was also placed upon the departmental instruction 5.2.4.1 as set out, supra, which it was said produced the result that the headmaster had no power or authority to require teachers to supervise the playground otherwise than during the hours 9.00 am to 3.30 pm as set out in that instruction. It was said therefore that the headmaster could not be regarded as negligent by failing to take measures to provide supervision of the playground prior to 9.00 am when he had no authority to direct any teacher to be present to perform that function. So to regard the case is to take an unduly restricted view of the relevant circumstances. There is no case which lays down that there is no duty of supervision prior to ‘school hours’, however that expression may be understood. The point seems to have been seldom referred to. In Ward v Hertfordshire County Council [1970] 1 All ER 535 at 538; [1970] 1 WLR 356 at 361, Salmon LJ expressly reserved the question whether lack of supervision could give rise to a cause of action in a case where the injury occurs at 8.50 am but ‘the school does not start until 8.55 am’. There seems no basis for treating it as a rule that there can be no duty of supervision outside ‘ordinary school hours’ or ‘before school started’. The question must depend upon the nature of the general duty to take reasonable care in all the circumstances. It is not enough to look only at the departmental instructions and to say that the duty of supervision arises only during the periods referred to in those instructions.’
Murphy and Aickin JJ
[1977] 17 ALR 408
Australia
Cited by:
CitedKearn-Price v Kent County Council CA 30-Oct-2002
The claimant was injured, being hit in the face by a football in a school playground. It was before school started. There had been accidents, and there were rules which had not been enforced. The school appealed a finding of negligence.
Held: . .

Lists of cited by and citing cases may be incomplete.
Updated: 06 August 2021; Ref: scu.214302

The Queen v Walter Watson Hughes And Edward Stirling: PC 22 Dec 1865

Leases granted by the Governor of South Australia under powers conferred on him by the Colonial Act, 21st Vict. No. 5, sec. 13, for regulating the sale and other disposal of waste lands belonging to the Crown, sealed with the public seal of the Province, but not enrolled or recorded in any court, are not in themselves Records; and, though bad on the face of them, being for a larger quantity of land than allowed by that Act, cannot be annulled or quashed by a writ of Scire facias
[1865] EngR 794, (1865) 3 Moo PC NS 439, (1865) 16 ER 166, [1866] UKPC 3, LR 1 PC 81
Commonlii, Bailii
Australia

Updated: 15 July 2021; Ref: scu.281706

Ali v Petroleum Company of Trinidad and Tobago (Trinidad and Tobago): PC 13 Feb 2017

(Trinidad and Tobago) The Board considered the test for when the implication of a contractual term was necessary.
Held: The defendant would not have chosen the claimant for redundancy if he had not accepted voluntary redundancy. The term properly to be implied into the contract was that the defendant would not act to prevent the claimant from completing five years of service, unless the claimant was in repudiatory breach of contract. They had done nothing to prevent the claimant from completing his five year period and they were not in breach of contract.
Lord Sumption JSC in argument in set the test as ”being that a term can only be implied if, without the term, the contract would lack commercial or practical coherence’
Lord Hughes said: ‘The concept of necessity must not be watered down. Necessity is not established by showing that the contract would be improved by the addition. The fairness or equity of a suggested implied term is a essential but not a sufficient pre-condition for inclusion.’
Lord Neuberger of Abbotsbury PSC, Lord Kerr of Tonaghmore, Lord Clarke of Stone-cum-Ebony, Lord Carnwath, Lord Hughes JJSC
[2017] UKPC 2, [2017] IRLR 432, [2017] ICR 531, [2017] WLR(D) 110, [2017] Bus LR 784
Bailii, WLRD
England and Wales
Cited by:
CitedLehman Brothers International (Europe) v Exotix Partners Llp ChD 9-Sep-2019
The parties had contracted to trade global depository notes issued by the Peruvian government. Each made mistakes as to their true value, thinking them scraps worth a few thousand dollars, whereas their true value was over $8m. On the defendant . .

These lists may be incomplete.
Updated: 28 June 2021; Ref: scu.575376

Attorney General for Hong Kong v Reid and Others: PC 24 Nov 1993

Principalhas proprietary interest in Trust assets

Bribes were taken by an employee, a crown prosecutor in Hong Kong, in a fraud on his employer. He then invested the proceeds in the purchase of property in New Zealand. The property had increased in value. The employer sought repayment of the bribes received from the properties purchased.
Held: The employer had a proprietary interest both in the bribe and in the asset substituted for it. Thus the property belonged in equity to the employer. The first stage in the analysis was the decision that the bribe itself was trust property. The second stage in the analysis was simply the application of the process of tracing the value of the bribe into the asset that had been substituted for it. A fiduciary office holder who accepted a bribe holds both the original sum, and any increase in its value, on a constructive trust for the person to whom he owed that fiduciary duty. Bribery is an evil practice which threatens the foundations of any civilised society. It corrupts not only the recipient but the giver of the bribe. ‘property acquired by a trustee innocently but in breach of trust and the property from time to time representing the same belong in equity to the cestui que trust and not to the trustee personally’:
Lord Templeman Lrd Goff. Lord Lowry, Lord Lloyd, Sir Thomas Eichelbaum
Gazette 26-Jan-1994, Independent 24-Nov-1993, Times 12-Nov-1993, [1994] 1 AC 324, [1993] UKPC 2, [1994] 1 All ER 1
Bailii
England and Wales
Citing:
Wrongly decidedLister and Co v Stubbs CA 1890
It was alleged by the plaintiffs that their foreman had received secret commissions which he had invested in land and other investments. They sought interlocutory relief to prevent him dealing with the land and requiring him to bring the other . .

Cited by:
CitedTesco Stores Limited v Pook, Pook, Universal Projects (UK) Limited ChD 14-Apr-2003
A trustee in breach of his duty has a duty to disclose that breach. It was alleged that the defendants, including a director of the claimant, had submitted false invoices to the claimants, and purchased property with the resulting profits.
CitedUltraframe (UK) Ltd v Fielding and others ChD 27-Jul-2005
The parties had engaged in a bitter 95 day trial in which allegations of forgery, theft, false accounting, blackmail and arson. A company owning patents and other rights had become insolvent, and the real concern was the destination and ownership of . .
CitedIslamic Republic of Pakistan v Zardari and others ComC 6-Oct-2006
The claimant alleged that the defendants had funded the purchase of various properties by secret and unlawful commissions taken by them whilst in power in Pakistan. They sought to recover the proceeds. They now sought permission to serve proceedings . .

These lists may be incomplete.
Updated: 02 June 2021; Ref: scu.77944

Darryl Neudorf v Network Expressions: 1999

(Supreme Court of British Columbia) The court discussed the test for joint authorship after reviewing authorities in Canada, the US and England and said: ‘In the result I find that the test for joint authorship that should be applied to the facts in the instant case is as follows:
i) Did the plaintiff contribute significant original expression to the songs? If yes,
ii) Did each of the plaintiff and Ms McLachlan intend that their contributions be merged into a unitary whole? If yes,
iii) Did each of the plaintiff and Ms McLachlan intend the other to be a joint author of the song?’ and ‘the creation of the intent to co-author requirement in Childress v. Taylor happened despite the statutory definition of joint authorship . . . not because of it. The court looked beyond the language of the section and moved on to review policy considerations in the application of the section. In particular, the court could not accept that Congress intended to extend joint authorship to, for example, editors and researchers. It was for this reason that the court created the intent to co-author requirement.’
Cohen J
[1999] RPC 935
Canada
Cited by:
Still Good LawHodgens v Beckingham CA 19-Feb-2003
The defendant appealed a finding of infringement in a music copyright work, ‘Young at Heart’, based on a claim of joint authorship. The claimant had delayed his claim for many years, but now sought only rights to future royalties.
Held: The . .

These lists may be incomplete.
Updated: 01 June 2021; Ref: scu.266723

Kenneth L Kellar Carib West Limited v Stanley A Williams: PC 24 Jun 2004

(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as the degree of success in the case, and the respondent argued that this showed the existence of a conditional fee element.
Held: The letter relied upon did not establish what was suggested, and nor could the fact that the remuneration rate had not been formally agreed in advance. It was not unlawful as a conditional fee arrangement. The case was remitted for taxation to proceed.
The Privy Council expressed the view that ‘it may now be time to reconsider the accepted prohibition in the light of modern practising conditions.’
Lord Hope of Craighead, Lord Hutton, Lord Scott of Foscote, Lord Carswell, Dame Sian Elias
[2004] UKPC 30, [2005] 4 Costs LR 559, (2004) 148 SJLB 821
Bailii, PC, PC
England and Wales
Citing:
CitedWay v Latilla HL 1937
Mr Way (W), the plaintiff, was employed by Ariston, which had mining operations in Africa, as a consulting engineer and manager. He met the respondent (L) in England. He was asked to seek options to acquire concessions the respondent might acquire. . .
CitedThai Trading (a Firm) v Taylor and Taylor (of Taylors Solicitors, Caversham) CA 27-Feb-1998
A solicitor had agreed with his wife to act for her in litigation on the understanding that he would only recover his profit costs if she succeeded.
Held: This agreement did not offend public policy. This type of agreement was distinguished . .
CitedHazlett v Sefton Metropolitan Borough Council QBD 2-Dec-1999
The need for a party claiming his costs to give evidence to prove his entitlement to costs rather than relying on the presumption in his favour, will not arise if the defendant simply puts the complainant to proof of his entitlement to costs. The . .
See alsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedGeraghty and Co v Awwad and Another CA 25-Nov-1999
The court considered an assertion that a contract for fee sharing with a solicitors firm was unenforceable being in breach of the Solicitors Practice Rules.
Held: The court refused to follow Thai Trading. There should no longer be any common . .

Cited by:
See AlsoKellar v Williams PC 7-Feb-2000
PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
CitedSibthorpe and Morris v London Borough of Southwark CA 25-Jan-2011
The court was asked as to the extent to which the ancient rule against champerty prevents a solicitor agreeing to indemnify his claimant client against any liability for costs which she may incur against the defendant in the litigation in which the . .
CitedPatel, Re Defendant’s Cost Order CACD 6-Jul-2012
The defendant had been granted a defendant costs order, but he had not complied with the Rules by first outlining the type of costs and amount claimed’ and the Court had not required compliance. He had successfully appealed against a conviction for . .
CitedRadford and Another v Frade and Others QBD 8-Jul-2016
The court was asked as to the terms on which solicitors and Counsel were retained to act for the defendants. The appeals did not raise any issues concerning costs practice, and were by way of review of the Costs Judge’s rulings, and not by way of . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.198381

Kellar v Williams: PC 7 Feb 2000

PC (Turks and Caicos Islands) The parties disputed whether sums paid to the company had been by way of loan or as capital contributions which after payment of debts were distributable among the shareholders.
Held: The appeal was dismissed: ‘If the shareholders of a company agree to increase its capital without a formal allocation of shares that capital will become like share premium part of the owner’s equity and there is nothing in the company law of the Turks and Caicos Islands or in the company law of England on which that law is based to render their agreement ineffective. ‘
Lord Browne-Wilkinson, Lord Mackay of Clashfern, Lord Goff of Chieveley, Lord Hutton, Lord Millett
[2000] 2 BCLC 390, [2000] UKPC 4, Appeal No 42 of 1998, [2000] 2 BCLC 390
Bailii, PC
England and Wales
Citing:
See AlsoKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .

Cited by:
See alsoKenneth L Kellar Carib West Limited v Stanley A Williams PC 24-Jun-2004
(Turks and Caicos Islands) The appellant had failed in his action but argued that he should not be called upon to pay the costs of the respondent because there had been an unlawful conditional fee agreement. The bill had referred to one factor as . .
AppliedOyston v The Royal Bank of Scotland Plc SCCO 16-May-2006
The client and his solicitor had entered into a CFA in 2002 which provided for a success fee of 100% of reasonable costs, plus andpound;50,000 if the claimant recovered damages in excess of andpound;1m. This was a champertous agreement at common law . .

These lists may be incomplete.
Updated: 16 May 2021; Ref: scu.174641

Lincoln Anthony Guerra v Cipriani Baptiste and others (No 2): PC 6 Nov 1995

(Trinidad and Tobago) The execution of a prisoner after a substantial delay of 5 years was a breach of his constitutional rights, constituting cruel and unusual punishment.
Times 08-Nov-1995, Independent 15-Nov-1995, [1995] UKPC 3, Appeal No 11 of 1995, [1996] 1 A C 397
Bailii, PC
England and Wales
Citing:
CitedPratt and Morgan v The Attorney General for Jamaica and Another PC 2-Nov-1993
(Jamaica) A five year delay in execution is excessive, and can itself amount to inhuman or degrading punishment. ‘There is an instinctive revulsion against the prospect of hanging a man after he has been held under sentence of death for many years. . .

Cited by:
CitedTrevor Nathaniel Fisher v The Minister of Public Safety and Immigration and Others PC 16-Dec-1997
(The Bahamas) The extent of a delay before a trial is not relevant when considering whether a subsequent delay in carrying out an execution is cruel and inhuman punishment . .
CitedReyes v The Queen PC 11-Mar-2002
(Belize) The Criminal Code of Belize provided that any murder by shooting was to be treated as Class A Murder, and be subject to the mandatory death penalty. The applicant having been convicted, appealed saying this was inhuman or degrading . .

These lists may be incomplete.
Updated: 12 May 2021; Ref: scu.81077