Tag: Commonwealth

Mason v Desnoes and Geddes Ltd: PC 2 Apr 1990

(Jamaica) A section enabled the Court to set aside a judgment where a party had not appeared at the trial.
Held: The reference to ‘the Court or a Judge’ made it clear that the jurisdiction may be exercised by a judge in chambers and: ‘ . . the application to set aside a default judgment is not the invocation of an appellate jurisdiction but of a specific rule enabling the court to set aside its own orders in certain circumstances where the action has never been heard on the merits.’

Citations:

[1990] 2 AC 729, [1990] UKPC 15

Links:

Bailii

Jurisdiction:

Commonwealth

Cited by:

Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 04 July 2022; Ref: scu.237248

PF Sugrue Ltd v The Attorney General: PC 14 Nov 2005

PC (New Zealand) The claimant’s helicopter had been seized by the police having been identified as having been used in the course of unlawful hunting of deer. The grounds for the seizure were said to be inadequate. It was disputed whether the purpose of the seizure was for forensic investigation.
Held: The Appeal court had been able to reach the decision it had done on the evidence, and had not strayed outside the limits of its powers in making the order it had. There were no grounds for reversing the finding.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Carswell, Sir Anthony Evans

Citations:

[2005] UKPC 44

Links:

Bailii, PC

Citing:

Cited – Benmax v Austin Motor Co Ltd HL 1955
Except for cases which are expressly limited to questions of law, an appellant is entitled to appeal from the Court of Session to the House against any finding, whether it be a finding of law, a finding of fact or a finding involving both law and . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime, Police

Updated: 04 July 2022; Ref: scu.235360

Strachan v The Gleaner Company Limited and Stokes: PC 25 Jul 2005

PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence of justification. He claimed that the order amounted to an order for a retrial.
Held: A default judgment is one which has not been decided on the merits. The Courts have jealously guarded their power to set aside judgments where there has been no determination on the merits, even to the extent of refusing to lay down any rigid rules to govern the exercise of their discretion. There having been no determination on the merits in relation to liability, the court had had jurisdiction to set aside the judgment for damages to be assessed. ‘Walker J held that he had jurisdiction to make the order he did. If wrong, his decision could be reversed by the Court of Appeal which would be bound without going into the merits to set aside his substantive order as a nullity. As between the parties, however, and unless and until reversed by the Court of Appeal, his decision (both as to jurisdiction and on the merits) was res judicata. As a judge of co-ordinate jurisdiction Smith J had no power to set it aside.’
Lord Millett said that an order made by a judge without jurisdiction was obviously vulnerable, but not wholly without effect. It must be obeyed unless and until set aside.

Judges:

Lord Hoffmann, Lord Millett, Lord Rodger of Earlsferry, Lord Carswell, Sir Charles Mantell

Citations:

[2005] UKPC 33, [2005] 1 WLR 3204

Links:

Bailii, PC, PC

Citing:

Cited – Mason v Desnoes and Geddes Ltd PC 2-Apr-1990
(Jamaica) A section enabled the Court to set aside a judgment where a party had not appeared at the trial.
Held: The reference to ‘the Court or a Judge’ made it clear that the jurisdiction may be exercised by a judge in chambers and: ‘ . . the . .
Cited – Pugh v Cantor Fitzgerald International CA 7-Mar-2001
Where judgment had been entered with damages to be assessed, the issues which could be raised on the assessment of damages were any directly affecting that assessment, but the defendant could not raise an issue which would impugn the judgement . .
Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .
Cited – Dipcon Engineering Services Ltd v Bowen and Another PC 1-Apr-2004
PC Grenada ‘Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) . .
Cited – Lunnon v Singh CA 1-Jul-1999
Once judgment has been given, whether after a contested hearing or in default, for damages to be assessed, the defendant cannot dispute liability at the assessment hearing. . .
Cited – Evans v Bartlam HL 1937
The House emphasised the width of the jurisdiction to excuse default in the case of a defendant seeking to have a default judgment set aside and to be let in to defend.
Lord Atkin said: ‘The principle obviously is that, unless and until the . .
Obiter remarks criticised – Craig v Kanssen CA 1943
There had been a failure to serve process where service of process was required. The result was that the order made based upon that process was irregular.
Held: In the exercise of its inherent jurisdiction, the Court was entitled to set it . .
Cited – In re Pritchard CA 1963
An originating summons seeking relief was accepted and sealed in a local district registry. It ought to have been sealed in the Central Office of the Royal Courts of Justice. Wilberforce J had held that the originating summons was a nullity and that . .
Cited – In re Padstow Total Loss and Collision Assurance Association CA 1882
The High Court had made a winding up order against an insolvent association under a section of the Companies Act 1862 which applied to unregistered companies. The Act prohibited the formation of an unregistered company with more than twenty members. . .

Cited by:

Cited – O’Connor v Piccott and Another PC 17-Feb-2010
(Jamaica) The parties agreed for the sale of land. The seller sought specific performance by the buyer. The buyer had said there was a problem of title. The appellant had failed to defend the proceedings, and appealed against judgment in default. . .
Cited – Park v Cho and Others ChD 24-Jan-2014
The parties disputed the chairmanship of a charity. The claimant succeeded, but a third party later intervened saying that permission had not first been obtained from the Charity Commission as required. The defendant now appealed against the lifting . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Defamation, Litigation Practice

Updated: 01 July 2022; Ref: scu.229324

Teeluck and John v The State: PC 23 Mar 2005

(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases had set out the law regarding such directions. The direction should always be given if the circumstances required it. It was not for an appellate court to say it would not have made a difference, and it was a positive duty on defence counsel to ask the judge to give it. The case fell ‘into the exceptional category of those where the omissions of counsel had such an effect on the trial and verdict that it cannot be said with sufficient certainty that the conviction was safe. The prosecution case against John depended entirely on the oral and written confessions attributed to him, the authenticity and reliability of which he strongly contested. His credibility in making his allegations against the police was a crucial issue in the trial. That being so, it was vital for him to have the benefit, to which he was in law entitled, of both limbs of a good character direction from the judge. ‘

Judges:

Lord Hoffmann, Lord Hope of Craighead, Lord Hutton, Lord Walker of Gestingthorpe, Lord Carswell

Citations:

[2005] UKPC 14, Times 04-May-2005, [2005] 1 WLR 2421

Links:

Bailii, PC

Citing:

Cited – Regina v McCoy CACD 10-Dec-1999
The judge should direct the jury fully about the handicap which the inability to cross-examine the witness placed upon the defence, and possible lines of cross-examination which the appellants had lost: ‘If a statement of a critical witness is to be . .
Cited – Regina v Vye etc CACD 7-Apr-1993
Detailed guidance was given on good character directions, as to how and when they should be given, but: ‘Provided that the judge indicates to the jury the two respects in which good character may be relevant, ie credibility and propensity, this . .
Cited – Regina v Aziz; Regina v Tosun; Regina v Yorganci HL 16-Jun-1995
The defendant (one of three) relied upon his part exculpatory statement made in interview and did not give evidence. The judge said that his good character was relevant as to his own propensity, and the character of the others was relevant to their . .
Cited – Regina v Fulcher CACD 1995
The previous non-accidental injuries sustained by the baby whom F was alleged to have murdered were relevant to show not only that the child, being in pain, was more likely to be fractious, but also how F was likely to react to the child crying. The . .
Cited – Regina v Kamar CACD 31-Mar-1999
Where counsel had genuinely omitted to request a good character direction from the judge, and the defendant was entitled to one and did not receive it, the defendant should be acquitted on appeal. It will rarely be possible for a court of appeal to . .
Cited – Berry v The Queen PC 15-Jul-1992
(Jamaica) A failure to comply with Jamaica’s own rules on disclosure was a material irregularity. Where credibility is in issue, a good character direction is always relevant. . .
Cited – Kizza Sealey and Marvin Headley v The State PC 14-Oct-2002
PC (Trinidad and Tobago) The defendant appealed his conviction. He said that his counsel had failed to ensure that the judge should mention the fact that he was of previous good character in defending him.
Cited – Barrow v The State PC 23-Mar-1998
(Trinidad and Tobago) If the credibility of a defendant is an issue, a good character direction is always relevant and should be given. However, there is no general duty on a judge to inquire into the issue of the accused’s character if this has not . .
Cited – Thompson v The Queen PC 16-Feb-1998
(Saint Vincent and the Grenadines) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit . .
Cited – Regina v Clinton CACD 1993
Where counsel’s conduct is called in question, the general principle requires the court to focus on the impact of the faulty conduct on the trial and result. . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Cited – Boodram v The State PC 10-Apr-2001
(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to . .

Cited by:

Cited – Mantoor Ramdhanie and others v The State PC 15-Dec-2005
PC (Trinidad and Tobago) The defendant appealed his conviction, saying he had not been properly able to pur forward his evidence of good character. The judge had prevented the defence putting questions to show a . .
Cited – Taylor v The Queen PC 13-Mar-2006
(Jamaica) The defendant appealed against his conviction for murder. He complained that admissions against each other by the co-defendants had been entered in evidence despite his allegations of police mistreatment. The statement was the only . .
Cited – Simmons and Another v Regina PC 3-Apr-2006
(Bahamas) The appellants challenged admission of confession statements at their trial. A statement was not to be admitted without proof hat it had not been obtained by oppression.
Held: The defendant would have failed in a submission of no . .
Cited – Krishna v The State PC 6-Jul-2011
krishna_statePC11
(Trinidad and Tobago) The applicant appealed against his conviction for murder, complaining as to the way a former co-accused had been allowed to give evidence and the admission of a confession, saying that he had been beaten by police officers.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 29 June 2022; Ref: scu.223881

Kelvin Dial (otherwise called Peter), Andrew Dottin (otherwise called Maxwell) v The State: PC 14 Feb 2005

(Trinidad and Tobago) Two defendants appealed against their convictions for murder. The principal witness who had identified them, had retracted his evidence, but the retraction had not been believed. He was then shown to have lied.
Held: The Board had to remember that the court of appeal had already considered these circumstances, and was much closer to the local situation and had considered the issues. It is not the function of the Board to make itself a second constitution of the Appeal Division and to duplicate its process. Appeal dismissed.
PC Lord Brown of Eaton-under-Heywood said: ‘The law is now clearly established and can simply be stated as follows. Where fresh evidence is adduced on a criminal appeal it is for the Court of Appeal, assuming always that it accepts it, to evaluate its importance in the context of the remainder of the evidence in the case. If the court concludes that the fresh evidence raises no reasonable doubt as to the guilt of the accused it will dismiss the appeal. The primary question is for the court itself and is not what effect the fresh evidence would have had on the mind of the jury.’

Judges:

Lord Bingham of Cornhill, Lord Steyn, Lord Hutton, Lord Carswell, Lord Brown of Eaton-under-Heywood

Citations:

[2005] 1 WLR 1660, [2005] UKPC 4, Times 28-Feb-2005

Links:

Bailii, PC

Citing:

Cited – Stafford v Director of Public Prosecutions HL 1974
The House rejected the submission of counsel that the Court of Appeal had asked the wrong question by taking as the test the effect of the fresh evidence on their mind and not the effect that the evidence would have had on the mind of the jury. It . .
Cited – Regina v Pendleton HL 13-Dec-2001
The defendant had appealed his conviction for murder to the Court of Appeal. The 1968 Act required the court to consider whether the conviction was unsafe. New evidence was before the Court of Appeal, but they had rejected the appeal.
Held: . .
Cited – Regina v Hakala CACD 2002
The court discussed the correct approach of the Court of Appeal to new evidence on appeal: ‘However the safety of the appellant’s conviction is examined, the essential question, and ultimately the only question for this Court, is whether, in the . .
Applied – Stafford and others v The State (Note) PC 30-Jul-1998
PC (Trinidad and Tobago) Where the matter at issue is the exercise of a discretion by a trial judge. ‘It has been said many times that it is not the function of the Judicial Committee to act as a second Court of . .
Cited – Regina v Ishtiaq Ahmed CACD 6-Dec-2002
Approach to fresh evidence produced on appeal. . .
Cited – Regina v James Hanratty (Deceased) CACD 10-May-2002
Posthumous Appeal – Clear Purpose and Care Needed
An appeal was presented against the conviction for a murder many years earlier. The prosecution sought to introduce DNA evidence to support its case. The appellant party objected.
Held: The purpose of the appeal was to achieve justice, and . .

Cited by:

Cited – Bowman, Regina v CACD 2-Mar-2006
The defendant appealed his conviction of murder saying that evidence of other pathologists undermined the evidence given by similar experts for the crown.
Held: The court took the opportunity to give guidance on the provision of expert . .
Cited – Hendy, Regina v CACD 12-Apr-2006
The applicant was sentenced to life imprisonment in 1992 for a brutal murder. He had pleaded diminished responsibility. There were now no papers from the trial. Medical evidence now suggested that at the time of the trial he would have suffered a . .
Cited – Noye, Kenneth, Regina v CACD 22-Mar-2011
The prisoner appealed against his conviction for murder on reference from the CCRC. There were new doubts about the reliabiity of the expert forensic expert.
Held: The appeal was dismissed. Dr H’s evidence did not impinge on the essential . .
Cited – Dizaei v Regina CACD 16-May-2011
The defendant had been convicted of misconduct in a public office and doing acts with intent to pervert the course of justice. He now appealed saying that he could demonstrate that the principal witness was dishonest. The prosecution replied that . .
Cited – Ackerley v HM Attorney General of The Isle of Man (Isle of Man) PC 31-Jul-2013
The appellant challenged his conviction for sexual assault, saying that the court had not made sufficient allowance for his autism, and in particular that his confession was actually evidence of echolalia, the repetition of what had been said to . .
Cited – S and Others v Regina CACD 28-Jun-2012
Four defendants appealed against convictions for child sex abuse. The convictions had taken place at a time when current guidance to examining physicians did not apply. In each case the defendants consented to new evidence from the prosecution.
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 29 June 2022; Ref: scu.223015

Robert De Maroussem and others (Heirs to the late Paul De Maroussem) v The Commissioner of Income Tax: PC 22 Jul 2004

PC (Mauritius) The appellant administered an estate. He sold land for development. He thought the sale was taxable as a capital receipt, but should have declared it as income from trading in land. He appealed a finding that he was guilty of ‘wilful neglect’ and therefore subject to an out of time assesment to income tax.
Held: There had been no finding that the failure to disclose was intentional or purposive, or that he must have known the truth. Accordingly there was no basis for the finding of wilful neglect under the statute. Appeal allowed.

Citations:

[2004] UKPC 43, Times 13-Sep-2004

Links:

Bailii, PC

Statutes:

(Mauritius) Income Tax Act 1995 130(2)

Jurisdiction:

Commonwealth

Commonwealth

Updated: 11 June 2022; Ref: scu.200082

Dipcon Engineering Services Ltd v Bowen and Another: PC 1 Apr 2004

PC Grenada ‘Whilst Saudi Eagle is clear authority, if authority were needed, for the proposition that an application to set aside a default judgment can be made (and, if refused, can then be appealed) notwithstanding that final judgment has been entered, it is certainly not authority for saying that on an appeal against an assessment of damages a previous default judgment can be set aside without any such application ever having been made …’

Judges:

Lord Brown of Eaton-Under-Heywood

Citations:

[2004] UKPC 18, 64 WIR 117

Links:

Bailii, PC

Citing:

Cited – Alpine Bulk Transport Co Inc v Saudi Eagle Shipping Co Inc The ‘Saudi Eagle’ CA 1986
The defendants, believing that they had no assets, deliberately allowed an interlocutory judgment for damages to be assessed to be entered against them by default, and only after damages had been assessed and final judgment entered, realising that . .

Cited by:

Cited – Strachan v The Gleaner Company Limited and Stokes PC 25-Jul-2005
PC (Jamacia) The plaintiff challenged an order setting aside a default assessment of damages in his claim for defamation. After the action was lost, two witnesses had come forward who might have allowed a defence . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 10 June 2022; Ref: scu.195213

Alexander Benedetto v The Queen (No and William Labrador v The Queen (No 2): PC 20 Oct 2003

PC British Virgin Islands

Citations:

[2003] UKPC 70, [2004] 1 WLR 500

Links:

PC, Bailii, PC

Jurisdiction:

Commonwealth

Citing:

See Also – Alexander Benedetto v The Queen and William Labrador v The Queen PC 7-Apr-2003
PC (British Virgin Islands) The appellants challenged their convictions for murder which had been based upon alleged confessions to a fellow inmate also awaiting trial.
Held: The court must be particularly . .

Cited by:

Cited – Panday v Virgil PC 9-Apr-2008
(Trinidad and Tobago) The defendant’s appeal against conviction had succeeded on the basis of apparent bias in the tribunal. He now appealed the order remitting the case to be reheard, saying that a fair trial was no longer possible.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 08 June 2022; Ref: scu.187100

Waikato Regional Airport Ltd and others v Attorney General: PC 30 Jun 2003

PC New Zealand

Judges:

Lord Nicholls of Birkenhead, Lord Hope of Craighead, Lord Hutton, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe

Citations:

[2003] UKPC 50

Links:

PC, Bailii, PC

Cited by:

Cited – Hemming (T/A Simply Pleasure Ltd) and Others v Westminster City Council Admn 16-May-2012
The applicant had sought a license for a sex establishment. He paid the (substantial) fee, but complained that the Council had not as required, resolved to set the fee, and that in any event, the sum did not reflect the cost of administering the . .
Cited – Hemming (T/A Simply Pleasure Ltd) and Others, Regina (on The Application of) v The Lord Mayor and Citizens of Westminster CA 24-May-2013
The claimant had submitted an application for a licence to operate a sex shop. On its failure it sought repayment of that part of the fee which related to the costs of supervising the system, rather than the costs of dealing with the application. It . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Local Government

Updated: 07 June 2022; Ref: scu.184504

Roy Green v Vivia Green: PC 20 May 2003

PC (Jamaica) The claimant sought a declaration that he was entitled to one half of the marriage assets on divorce. They had each acquired various properties and assets both in Jamaica and the USA. The judge at first instance had found for an equal share, and he now appealed a finding on appeal that he was entitled only to a one third share.
Held: An appellate court must interfere in a judge’s finding only if he was clearly in error. That could not be shown here, and te judge’s order was restored.

Judges:

Lord Nicholls of Birkenhead, Lord Steyn, Lord Hope of Craighead, Lord Millett, Lord Rodger of Earlsferry

Citations:

[2003] UKPC 39

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Gissing v Gissing HL 7-Jul-1970
Evidence Needed to Share Benefical Inerests
The family home had been purchased during the marriage in the name of the husband only. The wife asserted that she had a beneficial interest in it.
Held: The principles apply to any case where a beneficial interest in land is claimed by a . .
Cited – Grant v Edwards and Edwards CA 24-Mar-1986
A couple were not married but lived together in Vincent Farmhouse in which the plaintiff claimed a beneficial interest on separation. The female partner was told by the male partner that the only reason for not acquiring the property in joint names . .
Lists of cited by and citing cases may be incomplete.

Family

Updated: 07 June 2022; Ref: scu.182236

Jhagroo v Teaching Service Commission: PC 4 Dec 2002

PC (Trinidad and Tobago)

Citations:

[2002] UKPC 63

Links:

Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Chief Constable of the North Wales Police v Evans HL 1982
The Court found the probationer police constable to have been unlawfully induced to resign, but the court could not order his reinstatement. A power must be exercised by the precise person or body stated in the statute. Though courts may review the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 07 June 2022; Ref: scu.178869

Matadeen v Caribbean Insurance Co Ltd: PC 20 Jan 2003

(Trinidad and Tobago) The claimant sought to claim damages. The respondent’s insurers became insolvent, and he sought the damages in turn from the insurer’s own insurer. They responded that the claim against them was out of time.
Held: The limitation period in the claim against the insurer’s insurers was the same as it would be as between the original insured and his insurer. The fact that the contract of insurance was entered into was a statutory requirement. That the contract was under seal did not operate to extend the limitation period.

Judges:

Bingham of Cornhill, Hobhouse of Woodborough, Millett, Svott of Foscoe, Rodge of Earslferry LL

Citations:

Times 20-Jan-2003, [2002] UKPC 69, [2003] 1 WLR 670

Links:

Bailii, PC

Commonwealth, Insurance, Limitation

Updated: 06 June 2022; Ref: scu.178782

Barbara Alison Al-Sabah and Another v Grupo Torras S A and Others: PC 10 Oct 2000

PC (Jersey) The board refused special leave to appeal: ‘Normally all such questions of case management are matters for the courts concerned and are not suitable for any further review before their Lordships’ Board. The directions and orders which may be made cover a spectrum of possibilities and have to take into account all the prevailing local circumstances. In the absence of some error of principle or other special factor, leave should not ordinarily be granted for any further appeal. Such interlocutory appeals inevitably delay the action. This is the position in the present case. Their Lordships have advised that special leave be refused ‘

Judges:

Lord Hobhouse of Woodborough Lord Scott of Foscote Sir Ivor Richardson

Citations:

[2000] UKPC 38

Links:

Bailii, PC

Jurisdiction:

England and Wales

Citing:

See Also – Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al Sabah and others (2) CA 21-Mar-1997
The Court of Appeal should interfere with Judge’s case management decisions only with great reluctance. . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al-Sabah Et Al CA 2-Oct-1997
A party choosing to provide discovery of substantial documents on a Compact Disk must ask the court first before charging extra for the service. . .
See Also – Grupo Torras SA and Another v Al-Sabah and others Lst CA 6-Feb-1998
. .
See Also – Khaled Naser Hamoud Al-Sabah and Juan Jose Folchi Bonafonte v Grupo Torras SA CA 2-Nov-2000
The court discussed the approach to be taken when asked to act upon evidence which it found to be unreliable, though the witness’s credibility had not been destroyed. In a claim for dishonest assistance it is not necessary to show a precise causal . .
See Also – Grupo Torras Sa and Another v Al-Sabah and others CA 30-Jul-2001
The hearing followed others concluding that the claimant had been defrauded of substantial sums by the defendants. The parties sought clarifications. . .
See Also – Al Sabah and Al Sabah v Grupo Torras SA Culmer as trustee of the property of Sheikh Fahad Mohammed Al Sabah, bankrupt PC 11-Jan-2005
PC (Cayman Islands) The claimant complained of an order of the Court of Appeal of the Cayman Islands, requiring him to comply with a letter of request from the Grand Court of the Bahamas.
Held: In earlier . .

Cited by:

See Also – Grupo Torras Sa and Another v Sheikh Fahad Mohammed Al Sabah and Others CA 26-May-1995
A UK court may continue to hear a Spanish company’s claim against it’s own directors if a court was first seized of the matter here. Where a case concerned matters as to the constitution of a company, the courts of the company in which the company . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al Sabah and others (2) CA 21-Mar-1997
The Court of Appeal should interfere with Judge’s case management decisions only with great reluctance. . .
See Also – Grupo Torras SA and Torras Hostench London Limited v Sheikh Fahad Mohammed Al-Sabah Et Al CA 2-Oct-1997
A party choosing to provide discovery of substantial documents on a Compact Disk must ask the court first before charging extra for the service. . .
See Also – Grupo Torras SA and Another v Al-Sabah and others Lst CA 6-Feb-1998
. .
See Also – Khaled Naser Hamoud Al-Sabah and Juan Jose Folchi Bonafonte v Grupo Torras SA CA 2-Nov-2000
The court discussed the approach to be taken when asked to act upon evidence which it found to be unreliable, though the witness’s credibility had not been destroyed. In a claim for dishonest assistance it is not necessary to show a precise causal . .
See Also – Grupo Torras Sa and Another v Al-Sabah and others CA 30-Jul-2001
The hearing followed others concluding that the claimant had been defrauded of substantial sums by the defendants. The parties sought clarifications. . .
See Also – Al Sabah and Al Sabah v Grupo Torras SA Culmer as trustee of the property of Sheikh Fahad Mohammed Al Sabah, bankrupt PC 11-Jan-2005
PC (Cayman Islands) The claimant complained of an order of the Court of Appeal of the Cayman Islands, requiring him to comply with a letter of request from the Grand Court of the Bahamas.
Held: In earlier . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 06 June 2022; Ref: scu.174675

Boodram v The State: PC 10 Apr 2001

(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to assess what could be done to redress any prejudice or potential prejudice to the defendant. He also failed to pursue an allegation that the defendant had signed her confession only after being raped in the cells by a police sergeant. The appellant was accused of having murdered her husband by poisoning.
Held: Where a defence case had clearly been conducted in an incompetent manner, to an extent that the defendant could not be said to have had a fair trial, then it was appropriate to set aside the conviction which followed. An appellate court should approach complaints about counsel’s incompetence and its effects on a trial, with a healthy scepticism, but where the failure was fundamental, a court should only with great care find that the jury would have reached the same decision even with competent counsel.

Judges:

Citations: Times 15-May-2001, No 65 of 2000, [2001] UKPC 18, [2002] 1 Cr App R 103

Links:

Bailii, PC, PC

Citing:

Cited – Flowers v The Queen PC 30-Oct-2000
(Jamaica) Where a defendant claimed that his constitutional right to a trial within a reasonable time had been infringed, it was correct for the appellate courts to take account of the fact that it remained clear that the defendant was guilty of a . .
Cited – Reid v The Queen PC 1980
It is not in the interests of justice for the prosecution to be given a second chance to make good deficiencies in its case. The Board gave guidance on the considerations relevant to ordering a new trial: ‘… the interest of justice that is served . .
Cited – Charles, Steve Carter and Leroy Carter v The State PC 26-May-1999
(Trinidad and Tobago) A third trial for murder, with a capital sentence to follow, after a long delay, and when one verdict had been set aside, and a second jury undecided, became an abuse of process. This is usually a judge’s discretion and should . .
Cited – Lawrence Pat Sankar v State of Trinidad and Tobago PC 16-Dec-1994
(Trinidad and Tobago) An advocate’s failure to advise his client on the need for him to give evidence, and the consequences of his not doing so may be enough to justify an appeal against conviction. . .
Cited – Regina v Clinton CACD 1993
Where counsel’s conduct is called in question, the general principle requires the court to focus on the impact of the faulty conduct on the trial and result. . .

Cited by:

Cited – Teeluck and John v The State PC 23-Mar-2005
(Trinidad and Tobago) The defendant appealed against his conviction saying that his defence had been incompetent in having failed to require the judge to give a good character direction to the jury.
Held: The appeal was allowed. Recent cases . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Legal Professions, Commonwealth

Updated: 06 June 2022; Ref: scu.174516

Forrester Bowe (Junior) v The Queen: PC 10 Apr 2001

PC (The Bahamas) The Board considered a suggestion that the defendants second re-trial for murder was an abuse of process: ‘It is a common practice for prosecutors in England and Wales to offer no evidence against a defendant if two previous juries have been unable to agree . . but that is no more than a convention, as recognised by the Court of Appeal (Criminal Division) in R v Henworth . . it may well be that the prosecuting authorities, having failed to obtain a conviction even by a majority on two occasions, judge that a further trial will not have a reasonable prospect of culminating in a conviction. It is in the first instance for the prosecutor to judge whether, taking account of all relevant considerations, the public interest is better served by offering no evidence or by seeking a further re-trial. There is plainly no rule of law in this country which forbids a prosecutor from seeking a second re-trial . . there may of course be cases in which, on their particular facts, a second re-trial may be oppressive and unjust . . whether a second re-trial should be permitted depends on an informed and dispassionate assessment of how the interests of justice in the widest sense are best served. Full account must be taken of the defendant’s interests . . account must also be taken of the public interest in convicting the guilty, deterring violent crime and maintaining confidence in the efficacy of the criminal justice system.’
(The Bahamas)

Judges:

Lord Bingham of Cornhill

Citations:

Appeal No 48 of 2000, [2001] UKPC 19

Links:

Bailii, PC, PC

Jurisdiction:

Commonwealth

Cited by:

Cited – Bell, Regina v CACD 19-Jan-2010
The defendant appealed against his conviction, saying that it had taken place only at the prosecution’s third attempt, the two earlier trials reaching no majority verdict. He said that the third trial was an abuse.
Held: There had been no . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 06 June 2022; Ref: scu.174515

Bonnick v Morris, The Gleaner Company Ltd and Allen: PC 17 Jun 2002

(Jamaica) The appellant sought damages from the respondent journalists in defamation. They had claimed qualified privilege. The words alleged to be defamatory were ambiguous.
Held: The publishers were protected by Reynolds privilege. The court should give the article the natural and ordinary meaning which would be attributed by an intelligent reader seeing it once. He could read between the lines but may not be unduly suspicious.
An appellate court should not disturb the judge’s finding without real justification. That did not apply here.
As to privilege, qualified privilege need not be lost because of unanticipated ambiguity. The defamatory imputation was a matter of implication, about which different views could apply. Responsible journalism was the point at which a fair balance was held between freedom of expression on matters of public concern and the reputations of individuals. Nevertheless ambiguity can be a screen behind which a journalist could be ‘willing to wound, and yet afraid to strike’. It is a matter for the words in each case. In this case the ambiguity was not so patent. There was, or perhaps should be, a deterrent element in the amount of damages in defamation cases.
Lord Nicholls discussed the single meaning rule in defamation: ‘The ‘single meaning’ rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear: see the familiar exposition by Diplock LJ in Slim v Daily Telegraph Ltd [1968] 2 QB 157, 171-172. The law attributes to the words only one meaning, although different readers are likely to read the words in different senses. In that respect the rule is artificial. Nevertheless, given the ambiguity of language, the rule does represent a fair and workable method for deciding whether the words under consideration should be treated as defamatory. To determine liability by reference to the meaning an ordinary reasonable reader would give the words is unexceptionable.’
For the purposes of determining whether, in the context of a defamation action, a journalist had acted responsibly, it was permissible to take account of the meaning which a journalist thought an article had even though that is different from the meaning which the article had to the ordinary reasonable reader. ‘A journalist should not be penalised for making a wrong decision on a question of meaning on which different people might reasonably take different views.’ In that case ‘the defamatory meaning of the words used was not so glaringly obvious that any responsible journalist would be bound to realise this was how the words would be understood by ordinary, reasonable readers.’

Judges:

Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote and Mr Justice Tipping

Citations:

[2002] UKPC 31, [2003] 1 AC 300, [2002] 3 WLR 820, 12 BHRC 558, [2002] EMLR 37, [2002] 2 Lloyds Rep 403, (2002) 12 BHRC 558, [2002] All ER (D) 92, (2003) 4 CHRLD 35

Links:

Bailii, PC

Citing:

Cited – Skuse v Granada Television CA 30-Mar-1993
The claimant complained that the defendant had said in a television programme that he had failed to act properly when presenting his expert forensic evidence in court in the trial of the Birmingham Six.
Held: The court should give to the . .
Cited – Reynolds 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 . .
Cited – Slim v Daily Telegraph Ltd CA 1968
Courts to Settle upon a single meaning if disputed
The ‘single meaning’ rule adopted in the law of defamation is in one sense highly artificial, given the range of meanings the impugned words sometimes bear. The law of defamation ‘has passed beyond redemption by the courts’. Where in a libel action . .

Cited by:

Cited – George Galloway MP v Telegraph Group Ltd QBD 2-Dec-2004
The claimant MP alleged defamation in articles by the defendant newspaper. They claimed to have found papers in Iraqi government offices after the invasion of Iraq which implicated the claimant. The claimant said the allegations were grossly . .
Cited – Nail and Another v News Group Newspapers Ltd and others CA 20-Dec-2004
The claimant appealed the award of damages in his claim for defamation. The defendants had variously issued apologies. The claimant had not complained initially as to one publication.
Held: In defamation proceedings the damage to feelings is . .
Cited – Jameel and Another v Wall Street Journal Europe Sprl (No 2) CA 3-Feb-2005
The claimant sought damages for an article published by the defendant, who argued that as a corporation, the claimant corporation needed to show special damage, and also that the publication had qualified privilege.
Held: ‘It is an established . .
Cited – Armstrong v Times Newspapers Ltd and David Walsh, Alan English CA 29-Jul-2005
The claimant sought damages after publication by the first defendant of articles which it was claimed implied that he had taken drugs. The paper claimed qualified privilege, and claimed Reynolds immunity.
Held: The defence of qualified . .
Cited – Lowe v Associated Newspapers Ltd QBD 28-Feb-2006
The defendant sought to defend the claim for defamation by claiming fair comment. The claimant said that the relevant facts were not known to the defendant at the time of the publication.
Held: To claim facts in aid of a defence of fair . .
Cited – Jameel v Wall Street Journal Europe Sprl HL 11-Oct-2006
The House was asked as to the capacity of a limited company to sue for damage to its reputation, where it had no trading activity within the jurisdiction, and as to the extent of the Reynolds defence. The defendants/appellants had published an . .
Cited – Roberts and Another v Gable and others CA 12-Jul-2007
The claimants appealed a finding of qualified privilege in their claim of defamation by the defendant author and magazine which was said to have accused them of theft and threats of violence against other members of the BNP.
Held: The appeal . .
Cited – Bray v Deutsche Bank Ag QBD 12-Jun-2008
A former employee of the defendant bank sued in defamation after the bank published a press release about its results which he said was critical of him.
Held: Where there is a real issue as to whether the words are defamatory of the claimant, . .
Cited – Mosley v News Group Newspapers Ltd QBD 24-Jul-2008
The defendant published a film showing the claimant involved in sex acts with prostitutes. It characterised them as ‘Nazi’ style. He was the son of a fascist leader, and a chairman of an international sporting body. He denied any nazi element, and . .
Cited – Ajinomoto Sweeteners Europe Sas v Asda Stores Ltd QBD 15-Jul-2009
The claimant said that the defendant’s characterisation of its own products as ‘Good for You’ by reference to a description saying that it did not include the claimant’s product as a component, was a malicious falsehood. The defendant sold other . .
Cited – Flood v Times Newspapers Ltd QBD 2-Oct-2009
The defendant had published a story in its newspaper. At that time it attracted Reynolds qualified privilege. After the circumstances changed, the paper offered an updating item. That offer was rejected as inadequate.
Held: The qualified . .
Cited – British Chiropractic Association v Dr Simon Singh CA 1-Apr-2010
The defendant appealed against a ruling that the words in an article – ‘This organisation is the respectable face of the chiropractic profession and yet it happily promotes bogus treatments’ – were statements of fact, and were not comment.
Cited – Ajinomoto Sweeteners Europe Sas v Asda Stores Ltd CA 2-Jun-2010
The claimant sold a sweetener ingredient. The defendant shop advertised its own health foods range with the label ‘no hidden nasties’ and in a situation which, the claimant said, suggested that its ingredient was a ‘nasty’, and it claimed under . .
Cited – Flood v Times Newspapers Ltd CA 13-Jul-2010
The claimant police officer complained of an article he said was defamatory in saying he was being investigated for allegations of accepting bribes. The article remained on the internet even after he was cleared. Each party appealed interim orders. . .
Cited – Watkins v Woolas QBD 5-Nov-2010
The petitioner said that in the course of the election campaign, the respondent Labour candidate had used illegal practices in the form of deliberately misleading and racially inflammatory material.
Held: The claim succeeded, and the election . .
Cited – Baturina v Times Newspapers Ltd CA 23-Mar-2011
The claimant appealed against directions given in her defamation action against the defendant. It had been said that she owned a house, and the defendant said that this was not defamatory. The claimant said that as the wife of the Mayor of Moscow . .
Cited – Flood v Times Newspapers Ltd SC 21-Mar-2012
The defendant had published an article which was defamatory of the claimant police officer, saying that he was under investigation for alleged corruption. The inquiry later cleared him. The court was now asked whether the paper had Reynolds type . .
Lists of cited by and citing cases may be incomplete.

Defamation, Commonwealth, Media

Updated: 06 June 2022; Ref: scu.174490

Leslie Tiwari v The State (Appeal No 76 of 2001): PC 29 May 2002

(Trinidad and Tobago) The defendant appealed convictions for rape and other offences based upon identification evidence. He had not been represented at the trial. He had not been warned of his freedom to call witnesses.
Held: Where a defendant was unrepresented, the court should warn him of the advisability of having professional representation. Witnesses whose evidence might have been called by him would have given admissible and relevant evidence. The case was remitted for that evidence to be admitted, and the conviction re-examined by the Court of Appeal of Trinidad and Tobago. Time spent in prison after a notice of appeal has been lodged with the Board, should count toward time served.

Judges:

Lord Nicholls of Birkenhead Lord Hutton Lord Millett Lord Scott of Foscote Sir Andrew Leggatt

Citations:

[2002] UKPC 29, (Appeal No 76 of 2001)

Links:

PC, PC, Leslie Tiwari v. The S’ target=’_n’>PC, Bailii, PC

Jurisdiction:

Commonwealth

Citing:

Cited – Regina v Turnbull and Another etc CCA 9-Jun-1976
The defendants appealed against their convictions which had been based upon evidence of visual identification.
Held: Identification evidence can be unreliable, and courts must take steps to reduce injustice. The judge should warn the jury of . .
Cited – Regina v Carter (Josef) 1960
The defendant appealed against his conviction. Though unrepresented at trial, the judge had not informed him of his opportunity to call witnesses. Counsel had failed to attend and an adjournment has been refused.
Held: The appeal succeeded. A . .

Cited by:

Cited – Kumar Ali v The State (Appeal 56 of 2004) and Leslie Tiwari v The State PC 2-Nov-2005
PC (Trinidad and Tobago) The Board was asked to determine the date from which an unsuccessful appellant’s sentence should run. Pending an appeal or whilst on remand, a prisoner would be held in less demanding . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth, Evidence

Updated: 06 June 2022; Ref: scu.172279

Regina v Hughes: PC 11 Mar 2002

(Saint Lucia) Having been convicted of murder, the defendant was made subject to the mandatory death penalty applied under St Lucia law. He appealed successfully on the basis that the constitution of St Lucia protected him from inhuman or degrading punishment or treatment under article 5, and the Crown appealed to the Privy Council.
Held: The mandatory death penalty is indeed to be regarded as inhuman or degrading punishment or treatment. The committee which exercised the prerogative of mercy was not an independent tribunal sufficient to save the procedure. The Crown’s appeal was dismissed, and the case remitted for re-sentence.

Judges:

Lord Bingham of Cornhill Lord Hutton Lord Hobhouse of Woodborough Lord Millett Lord Rodger of Earlsferry

Citations:

[2002] UKPC 12, [2002] 2 AC 259

Links:

PC, Bailii

Statutes:

Criminal Code of Saint Lucia 1992 172, Saint Lucia Constitution Order 1978 (SI 1978 No 1901) 5

Jurisdiction:

Commonwealth

Citing:

Applied – Reyes 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 . .
Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .

Cited by:

Cited – Berthill Fox v Regina (No 2) PC 11-Mar-2002
(Saint Christopher and Nevis) The appellant had been convicted of murder, for which the penalty was death. He claimed that the sentence was an infringement of his constitutional and human rights. The constitution declared that it prevailed over all . .
Cited – Pilar Aida Rojas v Brian Berllaque PC 10-Nov-2003
PC (Gibraltar) The system of selecting a criminal jury obliged men to be available for selection, but women could choose not to be on the role of jurors. The result was that jury lists and juries were almost . .
Cited – Watson v Regina PC 7-Jul-2004
(Jamaica) The defendant was convicted of two murders from the same incident. The Act provided for the death penalty if he was convicted of a second murder. He appealed the death sentence in the circumstances, and said also that it was . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing, Human Rights, Commonwealth

Updated: 05 June 2022; Ref: scu.167754

Crawford Adjusters and Others v Sagicor General Insurance (Cayman) Ltd and Another: PC 13 Jun 2013

(Cayman Islands) A hurricane had damaged property insured by the respondent company. The company employed the appellant as loss adjustor, but came to suspect advance payments recommended by him, and eventually claimed damages for deceit and conspiracy. The action was discontinued when evidence was provided to support the payments, and the first instance court supported allegations of abuse of process and malicious prosecution. An officer of the insurance company was alleged to have a strong personal animus toward the claimant. On appeal the insurers succeeded, the court saying that the tort of malicious prosecution was restricted to criminal proceedings.
Held: On those facts the judge was wrong to dismiss the claim for malicious prosecution. Though the insurers were not liable for abuse of process, the tort of malicious prosecution could apply to civil proceedings (Neuberger and Sumption LL dissenting).

Judges:

Lord Neuberger, Lady Hale, Lord Kerr, Lord Wilson, Lord Sumption

Citations:

[2013] UKPC 17, [2013] 4 All ER 8, [2013] WLR(D) 229, [2014] 1 AC 366, [2013] 3 WLR 927, [2013] 6 Costs LO 826

Links:

Bailii, WLRD, Bailii Summary

Jurisdiction:

Commonwealth

Citing:

Cited – Gray v Dight 1677
C successfully sued D for having maliciously prosecuted him in the ecclesiastical court, as a result of which he had been excommunicated. ‘And resolved the action lies though nothing ensued but an excommunication, and no [arrest], nor any express . .
Cited – Bulwer And Smiths Case 1687
Knowing that C owed H andpound;20 under a judgment debt and that H had died, D unlawfully arrogated H’s name to himself and thereby maliciously caused C to be outlawed for non-payment of the debt, as a result of which he was imprisoned for two . .
Cited – Savile v Roberts 1792
D had maliciously caused C to be indicted for riot. Following his acquittal C sued D for malicious prosecution. The court affirmed the judgment which had been given for C.
Held: It was irrelevant that D had not been part of a conspiracy. An . .
Cited – Savile v Roberts 1795
Case for causing and maliciously procuring the plaintiff to be indicted for a riot. It was held by Holt, Chief Justice, it is not sufficient that the plaintiff prove he was innocent but he must prove express malice in the defendant; he likewise . .
Cited – Stevens v The Midland Counties Railway Company And Lander 22-Jun-1854
Quaere, whether an action for a malicious prosecution will lie against a corporation aggregate? Per Alderson, B., that it will not.
It has to be shown that the prosecutor’s motives is for a purpose other than bringing a person to justice. . .
Cited – Berry v British Transport Commission QBD 1961
Although in civil cases extra costs incurred in excess of the sum allowed on taxation could not be recovered as damages, the Court was not compelled to extend that rule (based as it is on a somewhat dubious presumption) to criminal proceedings in . .
Cited – Gibbs and others v Rea PC 29-Jan-1998
(Cayman Islands) The respondent worked for a bank. He disclosed a business interest, but that interest grew in importance to the point where he resigned in circumstances amounting to constructive dismissal. His home and business officers were raided . .
Cited – Gregory v Portsmouth City Council HL 10-Feb-2000
Disciplinary proceedings had been taken by the local authority against Mr Gregory, a council member, after allegations had been made that he had failed to declare conflicts of interest, and that he had used confidential information to secure a . .
Cited – Gujra, Regina (on The Application of) v Crown Prosecution Service SC 14-Nov-2012
The appellant had twice begun private prosecutions only to have them taken over by the CPS and discontinued. He complained that a change in their policy on such interventions interfered with his statutory and constitutional right to bring such a . .
Cited – Gilding v Eyre And Another CCP 8-Jul-1861
After getting judgment against the plaintiff for a debt, and substantial repayment of it by him, the defendant issued a writ of execution for the full amount of the debt, in consequence of which the plaintiff was arrested by the sheriff’s officers. . .
Cited – Johnson v Emerson 1871
Cleasby B recognised that the tort of malicious prosecution could be committed in the malicious presentation of a winding up petition. The effect of presentation of such a petition was immediately damaging to the company which was the subject of the . .
Cited – Quartz Hill Consolidated Gold Mining Co v Eyre CA 26-Jun-1883
The court considered whether an action lay without proof of special damage for maliciously presenting a winding up petition.
Held: There was. Though there was no general cause of action for maliciously bringing civil proceedings without . .
Cited – The Walter D Wallet 1893
The vessel was arrested by a defendant who had been, but no longer was, a part owner of the vessel, having forgotten or forgotten the importance of that fact.
Held: Procuring the wrongful arrest of a ship can found a cause of action similar to . .
Cited – Clissold v Cratchley CA 1910
A solicitor had sued out a Writ of fi.fa on an order in favour of his client, unaware that the debt had been paid at the country office of the solicitor, prior to the writ being issued.
Held: An action in tort will be available for setting in . .
Cited – Roy v Prior HL 1970
The court considered an alleged tort of maliciously procuring an arrest. The plaintiff had been arrested under a bench warrant issued as a result of evidence given by the defendant. He sued the defendant for damages for malicious arrest.
Held: . .
Cited – Mayor of Bradford v Pickles HL 29-Jul-1895
The plaintiffs sought an injunction to prevent the defendant interfering with the supply of water to the city. He would have done so entirely by actions on his own land.
Held: The plaintiffs could have no property in the water until it came on . .

Cited by:

Cited – Williamson v The Attorney General of Trinidad and Tobago PC 3-Sep-2014
(Trinidad and Tobago) The claimant had been held after arrest on suspicion of theft. He was held for several months before the case was dismissed, the posecution having made no apparent attempt to further the prosecution. He appealed against refusal . .
Cited – Singh v Moorlands Primary School and Another CA 25-Jul-2013
The claimant was a non-white head teacher, alleging that her school governors and local authority had undermined and had ‘deliberately endorsed a targeted campaign of discrimination, bullying, harassment and victimisation’ against her as an Asian . .
Cited – Crawford v Jenkins CA 24-Jul-2014
The parties had divorced but acrimony continued. H now complained of his arrests after allegations from his former wife that he had breached two orders. He had been released and no charges followed. The court had ruled that W’s complaints were . .
Not Followed – Willers v Gubay ChD 15-May-2015
The court was asked whether the tort of malicious prosecution of civil proceedings is known to English law.
Held: The Crawfod Adjusters case should not be followed: ‘If I am not bound by Gregory, then I see no reason for departing from the . .
Cited – Willers v Joyce and Another (Re: Gubay (Deceased) No 1) SC 20-Jul-2016
Parties had been involved in an action for wrongful trading. This was not persisted with but the claimant sought damages saying that the action was only part of a campaign to do him harm. This appeal raised the question whether the tort of malicious . .
Cited – Willers 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.

Torts – Other

Updated: 02 June 2022; Ref: scu.510849

De Freitas v The Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing and others: PC 30 Jun 1998

(Antigua and Barbuda) The applicant was employed as a civil servant. He joined a demonstration alleging corruption in a minister. It was alleged he had infringed his duties as a civil servant, and he replied that the constitution allowed him to speak out.
Held: The demonstration did contravene the restriction on publishing his views. Analogies with private employment were not useful. They were both servants of the State, and the Minister a politician necessarily and properly exposed to public opinion. The general proposition that civil servants hold a unique status in a democratic society does not necessarily justify a substantial invasion of their basic rights and freedoms. A blanket prohibition against all public discussion of all public issues by all public servants would deny fundamental democratic rights to far too many people.
The interdiction, and the intended disciplinary proceedings contravened the appellant’s constitutional rights. In determining whether a limitation (by an act, rule or decision) is proportionate arbitrary or excessive the court should ask itself: ‘whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective.’

Judges:

Lord Browne-Wilkinson, Lord Lloyd of Berwick, Lord Hoffmann, Lord Clyde

Citations:

[1998] UKPC 30, [1999] 1 AC 69, Appeal No 42 of 1997, [1998] 3 WLR 675, 4 BHRC 563

Links:

Bailii

Citing:

Cited – Minister of Home Affairs v Fisher PC 1979
Respect must be paid to the language which has been used in a constitutional statute and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation . .
Cited – Attorney-General v Momodou Jobe PC 26-Mar-1984
(Gambia) A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction. In the construction . .
Cited – Vogt v Germany ECHR 1-Nov-1995
The German courts construed a teacher’s duty of loyalty as absolute and owed equally by every civil servant, regardless of his or her function and rank under national law. Every civil servant, whatever his or her own opinion on the matter, must . .
Cited – Regina v Oakes 28-Feb-1986
Supreme Court of Canada – Constitutional law — Charter of Rights — Presumption of innocence (s. 11(d)) — Reverse onus clause — Accused presumed to be trafficker on finding of possession of illicit drug — Onus on accused to rebut presumption — . .

Cited by:

Cited – Regina (Daly) v Secretary of State for the Home Department HL 23-May-2001
A prison policy requiring prisoners not to be present when their property was searched and their mail was examined was unlawful. The policy had been introduced after failures in search procedures where officers had been intimidated by the presence . .
Cited – Regina v British Broadcasting Corporation ex parte Pro-life Alliance HL 15-May-2003
The Alliance was a political party seeking to air its party election broadcast. The appellant broadcasters declined to broadcast the film on the grounds that it was offensive, being a graphical discussion of the processes of abortion.
Held: . .
Cited – Samaroo and Sezek v Secretary of State for the Home Department CA 17-Jul-2001
Two foreign nationals with leave to remain in this country committed serious crimes. The Secretary of State ordered their deportation.
Held: Where the deportation of a foreigner following a conviction here, would conflict with his human . .
Cited – George Worme Grenada Today Limited v The Commissioner of Police PC 29-Jan-2004
PC (Grenada) The defendant was editor of a newspaper which carried a story severely defamatory of the prime minister. He was convicted of criminal libel, and appealed.
Held: The appeal was dismissed. The . .
Cited – A v Secretary of State for the Home Department, and X v Secretary of State for the Home Department HL 16-Dec-2004
The applicants had been imprisoned and held without trial, being suspected of international terrorism. No criminal charges were intended to be brought. They were foreigners and free to return home if they wished, but feared for their lives if they . .
Cited – Attorney General v Scotcher HL 19-May-2005
Following a trial, a juror wrote to the defendant’s mother to say that other jury members had not considered the case in a proper manner. He had been given written advice that he was not free to discuss a case with anyone. He appealed his conviction . .
Cited – Forbes v Secretary of State for the Home Department QBD 26-Jul-2005
The defendant argued that the 2003 Act was in breach of his article 8 rights. He had been registered as a sex offender, but the offence for which he had been convicted involved no proof of intention.
Held: The claimant having brought the . .
Cited – Bradley v The Jockey Club CA 12-Jul-2005
The Jockey had been disqualified from riding for five years for breaches of the club’s rules. He said the punishment was disproportionate in effectively preventing him working for a living.
Held: The appeal failed, and the judge’s analysis was . .
Cited – Axon, Regina (on the Application of) v Secretary of State for Health and Another Admn 23-Jan-2006
A mother sought to challenge guidelines issued by the respondent which would allow doctors to protect the confidentiality of women under 16 who came to them for assistance even though the sexual activities they might engage in would be unlawful.
Cited – Baiai and Others, Regina (on the Application of) v Secretary of State for the Home Department Admn 10-Apr-2006
The respondent brought in laws restricting marriages between persons subject to immigration control, requiring those seeking non Church of England marriages to first obtain a certificate from the defendant that the marriage was approved. The . .
Cited – Laporte, Regina (on the application of ) v Chief Constable of Gloucestershire HL 13-Dec-2006
The claimants had been in coaches being driven to take part in a demonstration at an air base. The defendant police officers stopped the coaches en route, and, without allowing any number of the claimants to get off, returned the coaches to London. . .
Cited – Huang v Secretary of State for the Home Department HL 21-Mar-2007
Appellate Roles – Human Rights – Families Split
The House considered the decision making role of immigration appellate authorities when deciding appeals on Human Rights grounds, against refusal of leave to enter or remain, under section 65. In each case the asylum applicant had had his own . .
Cited – Suryananda, Regina (on the Application of) v The Welsh Ministers Admn 16-Jul-2007
The claimants, trustees of a Hindu temple, sought judicial review of a decision that a bullock in their temple should be slaughtered having positively reacted to a test for bovine tuberculosis bacterium. They said that the animal posed no threat . .
Cited – Observer Publications Limited v Campbell ‘Mickey’ Matthew The Commissioner of Police and The Attorney General PC 19-Mar-2001
PC (Antigua and Barbuda) The claimant complained of the delay by the respondents in processing their request for a licence to run a radio station. It appealed refusal of constitutional redress and thta its right . .
Cited – F and Another, Regina (on The Application of) v Secretary of State for The Home Department SC 21-Apr-2010
The defendants had been convicted and sentenced for offences which under the 2003 Act would mean that they stayed permanently on the Sex Offenders’ register without possibility of a review. The Secretary of State appealed aganst a finding that the . .
Cited – Bank Mellat v HM Treasury QBD 11-Jun-2010
The respondent had made an order under the Regulations restricting all persons from dealing with the the claimant bank. The bank applied to have the order set aside. Though the defendant originally believed that the Iranian government owned 80% of . .
Cited – Homer v Chief Constable of West Yorkshire Police SC 25-Apr-2012
The appellant had failed in his claim for indirect age discrimination. Approaching retirement, he complained that new conditions allowing advancement to graduates only, discriminated against him since he could not complete a degree before retiring. . .
Cited – Bank Mellat v Her Majesty’s Treasury (No 2) SC 19-Jun-2013
The bank challenged measures taken by HM Treasury to restrict access to the United Kingdom’s financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Iran’s nuclear weapons and ballistic . .
Cited – Akerman-Livingstone v Aster Communities Ltd SC 11-Mar-2015
Appeal about the proper approach of the courts where the defendant to a claim for possession of his home raises a defence of unlawful discrimination, contrary to the Equality Act 2010, by the claimant landlord. In particular, the issue is whether . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Employment

Updated: 01 June 2022; Ref: scu.159311

Bermuda Cablevision Limited and others v Colica Trust Company Limited: PC 6 Oct 1997

(Bermuda) An alternative remedy to winding up is available to a shareholder where oppressive conduct is alleged, though the main thrust is that the conduct is unlawful.

Judges:

Lord Browne-Wilkinson Lord Lloyd of Berwick Lord Steyn Lord Cooke of Thorndon Lord Clyde

Citations:

Times 31-Oct-1997, [1997] UKPC 44

Links:

Bailii

Statutes:

Companies Act 1985 459, Companies Act 1981 (Bermuda) 111

Citing:

Distinguished – British American Tobacco Company Limited v Inland Revenue Commissioners HL 1943
The House considered whether British American had a ‘controlling interest’ in a subsidiary of its direct subsidiary. The company argued that ‘controlling interest’ equated to beneficial ownership. In rejecting that argument Viscount Simon said: ‘I . .
Distinguished – Inland Revenue Commissioners v J Bibby and Sons Limited HL 17-May-1945
The House was asked whether shares in a company held by directors as trustees could be aggregated with shares held by them beneficially for the purpose of determining whether the directors had ‘a controlling interest’ in the company.
Held:
Distinguished – Barclays Bank Limited v Inland Revenue Commissioners HL 1960
A testator did have the control of a company within section 55(1) of the 1940 Act, by virtue of the fact that he held shares as an individual in his own right and also was entitled to vote as a trustee for a further allocation of shares (making . .
Cited – Daimler Co Ltd v Continental Tyre and Rubber Company (Great Britain) Limited HL 1916
The House considered the meaning of ‘control’ in the context of companies. Lord Parker of Waddington said: ‘I think that the analogy is to be found in control, an idea which, if not very familiar in law, is of capital importance and is very well . .
Cited – Gouriet v Union of Post Office Workers HL 26-Jul-1977
The claimant sought an injunction to prevent the respondent Trades Union calling on its members to boycott mail to South Africa. The respondents challenged the ability of the court to make such an order.
Held: The wide wording of the statute . .
Cited – CBS Songs Ltd v Amstrad Consumer Electronics Plc CA 1987
Persons other than the Attorney General do not have standing to enforce, through a civil court, the observance of the criminal law as such. However, Sir Denys Buckley considered that such a claim might be maintained as a representative action . .
Cited – Lonrho Ltd v Shell Petroleum Co Ltd (No 2) HL 1-Apr-1981
No General Liability in Tort for Wrongful Acts
The plaintiff had previously constructed an oil supply pipeline from Beira to Mozambique. After Rhodesia declared unilateral independence, it became a criminal offence to supply to Rhodesia without a licence. The plaintiff ceased supply as required, . .
Cited – Jenkin v Pharmaceutical Society of Great Britain 1921
At common law that a member of a company incorporated by Royal Charter is entitled to an order restraining the commission of acts outside the scope of the charter which may result in the forfeiture of the charter and the destruction of the society. . .
Cited – Dickson v Pharmaceutical Society of Great Britain HL 1970
The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and . .
Cited – Phillips v Britannia Hygienic Laundry Co Ltd CA 1923
A breach of the regulation does not give rise to an action for damages. The distinction between misfeasance and non-feasance should no longer have significance. Atkin LJ said: ‘one who cannot be otherwise specified than as a person using the . .
Cited – Dickson v Pharmaceutical Society of Great Britain HL 1970
The Society was concerned by the extension of the range of non-pharmaceutical goods sold in chemist’s shops and the effect which it might have on the quality and status of the profession, proposed a new rule for inclusion in the code of ethics and . .
Cited – Ebrahimi v Westbourne Galleries Ltd and Others (on Appeal from In Re Westbourne Galleries Ltd) HL 3-May-1972
Unfair Prejudice to Minority Shareholder
A company had operated effectively as a partnership between two and then three directors. No dividends had been paid, but the directors had received salaries. One director was removed and sought an order for the other to purchase his shares, or . .
Cited – National Westminster Bank Plc and Another v Inland Revenue Commissioners HL 24-Jun-1994
Shares are allotted to a person when that person acquires an unconditional right to be entered on a company’s register of members. The issue of shares only becomes complete after they are registered in the company’s books for the purposes of the BES . .
Cited – Bratton Seymour Service Co Ltd v Oxborough CA 1992
The company was set up to acquire and manage a property divided into flats which also included ‘amenity areas’ (tennis courts, swimming pool, gardens). It was argued that there should be implied into the articles of association an obligation on the . .
Cited – Scally v Southern Health and Social Services Board HL 1991
The plaintiffs were junior doctors employed by the respondents. Their terms had been collectively negotiated, and incorporated the Regulations. During the period of their employment different regulations had given and then taken way their right to . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 01 June 2022; Ref: scu.159255

Regina v Ali, Regina v Rasool (Mauritius): PC 25 Mar 1992

The Mauritian Director of Public Prosecution’s combined duty prosecute and power to select the trial court with different penalties, infringed the constitutional need to maintain the separation of powers.

Citations:

Gazette 25-Mar-1992

Jurisdiction:

England and Wales

Constitutional, Criminal Practice

Updated: 29 May 2022; Ref: scu.88370

Lawrence Pat Sankar v State of Trinidad and Tobago: PC 16 Dec 1994

(Trinidad and Tobago) An advocate’s failure to advise his client on the need for him to give evidence, and the consequences of his not doing so may be enough to justify an appeal against conviction.

Citations:

Independent 12-Jan-1995, Times 28-Dec-1994, [1994] UK PC 1, [1995] 1 WLR 194, No 22 of 1993, [1994] UKPC 49

Links:

PC, Bailii, Bailii

Cited by:

distinguished – Codrington v the Queen (Belize) PC 27-Mar-1996
The appellant had been convicted of murder. He had two grounds of appeal, that the judge had failed to get right the burden of proof, and that his counsel had not allowed him to give evidence when he had wanted to. The case was remitted. Although . .
Cited – Boodram v The State PC 10-Apr-2001
(Trinidad and Tobago) On a retrial, the defendant’s counsel only became aware that there had been an earlier trial late in the proceedings, and, when he became aware of it, he did not try to obtain the transcript of the first trial in order to . .
Cited – Anderson v HM Advocate HCJ 1996
The court considered the effect on a conviction of a failure by defence counsel. After considering the authorities: ‘It can only be said to have resulted in a miscarriage of justice if it has deprived the accused of his right to a fair trial. That . .
Cited – Bally Sheng Balson v The State PC 2-Feb-2005
PC (Dominica) The appellant had been convicted of the murder of his partner and appealed the conviction.
Held: The case did not fall within the case of Anderson, and counsel’s failure was not such as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 20 May 2022; Ref: scu.89005

Cox v Army Council: PC 1963

The provisions of the English Army Act, are to be applied ‘in diverse circumstances wherever the armed forces of the Crown happen to be, in developed or undeveloped countries, as conquerors or guests, and their purpose is . . Disciplinary.’ Criminal law applies only in respect of acts committed or omissions made within England. Viscount Simons said: ‘apart from those exceptional cases in which specific provision is made in regard to acts committed abroad, the whole body of the criminal law of England deals only with acts committed in England.’ and ‘with rare exceptions the whole body of our criminal law is ‘domestic’ in the sense that it is made for the order and good government of this country and is applicable only to acts done on English soil.’

Judges:

Viscount Simonds, Lord Reid

Citations:

[1963] AC 48, (1962) 46 Cr App R 258

Cited by:

Cited – Purdy, Regina (on the Application of) v Director of Public Prosecutions HL 30-Jul-2009
Need for Certainty in Scope of Offence
The appellant suffered a severe chronic illness and anticipated that she might want to go to Switzerland to commit suicide. She would need her husband to accompany her, and sought an order requiring the respondent to provide clear guidelines on the . .
Lists of cited by and citing cases may be incomplete.

Crime, Armed Forces, Commonwealth

Updated: 20 May 2022; Ref: scu.373404

Ramstead v The Queen: PC 2 Dec 1998

New Zealand. Where a judge had received a note from the jury as to intended riders to their verdict, he was obliged to notify counsel and, having seen the foreman of the jury in chambers in counsel’s absence, the verdicts had constituted a material irregularity

Judges:

Lord Steyn

Citations:

Times 03-Dec-1998, [1998] UKPC 47, [1999] 2 WLR 698, [1999] 2 AC 92

Links:

Bailii

Citing:

Endorsed – Regina v Gorman CACD 1987
Lord Lane CJ said: ‘ . . certain propositions can now be set out as to what should be done by a judge who receives a communication from a jury which has retired to considered its verdict.
First of all, if the communication raises something . .

Cited by:

Cited – Regina v Tantram; Regina v Bibby etc CACD 24-May-2001
The defendants appealed against their convictions for conspiracy in have combined to put into the human food chain poultry meat which had been condemned as unfit. The jury after retiremen had indicated that they had reached agreement on some . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.85663

Thomas Reckley v Minister of Public Safety and Immigration and Others (Bahamas) (No 2): PC 6 Feb 1996

(The Bahamas) The actual exercise of the prerogative of mercy by a state falls outside the scope of the law. No further stay of execution granted.

Citations:

Times 06-Feb-1996, [1996] UKPC 1, [1996] 1 All ER 562

Links:

Bailii, PC, PC

Constitutional, Criminal Sentencing, Commonwealth

Updated: 19 May 2022; Ref: scu.85921

Mitchell v The Queen: PC 24 Jan 1998

(Bahamas) The judge’s decision on a voire dire to determine the admissibility of a confession should not be revealed to the jury since it might cause unfair prejudice to the defendant by conveying the impression that the judge had reached a concluded view on the credibility of the relevant witnesses and of the defendant. Lord Steyn said: ‘The vice is that the knowledge by the jury that the judge has believed the police and disbelieved the defendant creates the potentiality of prejudice. A jury of laymen, or some of them, might be forgiven for saying: ‘Well the judge did not believe the defendant, why should we believe him?’ At the very least it creates the risk that the jury, or some of them, may be diverted from grappling properly and independently with a defendant’s allegations of oppression so far as it is relevant to their decision. And such an avoidable risk of prejudice cannot be tolerated in regard to a procedure designed to protect a defendant.’ and as to whether this defect could be cured by the judge’s directions: ‘This was a serious irregularity, notably because it was calculated to convey to the jury that the judge had arrived at a concluded view that he ought to accept the evidence of the police witnesses and Franklyn Williams and reject the evidence of the defendant. That was the basis on which the jury then heard the evidence about the confessions over a number of days. The judge did not subsequently tell the jury to ignore his decision as to voluntariness of the confessions. For these reasons their Lordships cannot accept the Crown’s preliminary submission that the irregularity was ex post facto cured.’

Judges:

Lord Steyn

Citations:

Times 24-Jan-1998, [1998] UKPC 1, [1998] AC 695

Links:

Bailii

Cited by:

Cited – Michael Adams and Frederick Lawrence v Regina PC 18-Mar-2002
PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence.
Held: The trial judge had heard a plea of no . .
Cited – Taylor v The Queen PC 13-Mar-2006
(Jamaica) The defendant appealed against his conviction for murder. He complained that admissions against each other by the co-defendants had been entered in evidence despite his allegations of police mistreatment. The statement was the only . .
Cited – Mitcham v The Queen PC 16-Mar-2009
(Saint Christopher and Nevis) The applicant appealed against his sentence of death following his conviction for murder. He had been granted a stay of execution pending the appeal to the board and had since been given leave to appeal against . .
Applied – Thompson v The Queen PC 16-Feb-1998
(Saint Vincent and the Grenadines) When a defendant is of good character, ie has no convictions of any relevance or significance, he is entitled to the benefit of a good character direction from the judge when summing up to the jury, tailored to fit . .
Cited – Krishna v The State PC 6-Jul-2011
krishna_statePC11
(Trinidad and Tobago) The applicant appealed against his conviction for murder, complaining as to the way a former co-accused had been allowed to give evidence and the admission of a confession, saying that he had been beaten by police officers.
Cited – Williams v The Queen PC 25-Apr-2006
PC Jamaica – the appellant had been twelve when convicted on his own confession of murder. He said that the statement after oppression. The statement had been challenged but admitted without following the . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.83776

Invercargill City Council v Hamlin: PC 12 Feb 1996

(New Zealand) Seventeen years earlier the plaintiff had asked a builder to construct a house for him, but it now appeared that the foundations had been inadequate. The building company no longer being in existence, he sought damages from the local authority which had supervised the construction.
Held: A Local Authority was liable for economic losses for a negligent inspection of a house during construction. Murphy had not been followed in New Zealand and the Privy Council accepted that this was justified. The Pirelli date of physical damage had also been discarded in favour of the date of discoverability. The decision in Pirelli was unfortunate: Once it is appreciated that the loss in respect of which the plaintiff in the present case is suing is loss to his pocket, and not for physical damage to the house or foundations, then most, if not all the difficulties surrounding the limitation question fall away. The plaintiff’s loss occurs when the market value of the house is depreciated by reason of the defective foundations, and not before. If he resells the house at full value before the defect is discovered he suffers no loss. Thus in the common case the occurrence of the loss and the discovery of the loss will coincide . . But the plaintiff cannot postpone the start of the limitation period by shutting his eyes to the obvious . . . In other words the cause of action accrues when the cracks become so bad and all the defects so obvious, that any reasonable home-owner would call in an expert. Since the defects would then be obvious to a potential buyer or his expert, that marks the moment when the market value of the building is depreciated and therefore the moment when economic loss occurs. Their Lordships do not think it is possible to define the moment more accurately. The measure of the loss will then be the cost of repairs if it is reasonable to repair, or the depreciation in the market value if it is not . . . This approach avoids almost all the practical and theoretical difficulties to which the academic commentators have drawn attention and which led to the rejection of Pirelli by the Supreme Court of Canada . . . The approach is consistent with the underlying principle that a cause of action accrues when, but not before, all the elements necessary to support the plaintiff’s claim are in existence. For in the case of a latent defect in a building the element of loss or damage which is necessary to support a claim for economic loss in tort does not exist so long as the market value of the house is unaffected. Whether or not it is right to describe an undiscoverable crack as damage, it clearly cannot affect the value of the building on the market. The existence of such a crack is thus irrelevant to the cause of action . . . Whether Pirelli should still be regarded as good law in England is not for their Lordships to say. What is clear is that it is not good law in New Zealand.

Judges:

Lord Browne-Wilkinson, Lord Keith of Kinkel, Lord Browne-Wilkinson, Lord Mustill, Lord Lloyd of Berwick, Sir Michael Hardie Boys

Citations:

Times 15-Feb-1996, 50 Con LR 105, [1996] AC 624, [1996] UKPC 56, 78 BLR 78, [1996] 1 NZLR 513, [1996] 1 All ER 756

Links:

Bailii

Citing:

Cited – Murphy v Brentwood District Council HL 26-Jul-1990
Anns v Merton Overruled
The claimant appellant was a house owner. He had bought the house from its builders. Those builders had employed civil engineers to design the foundations. That design was negligent. They had submitted the plans to the defendant Council for approval . .
Cited – Pirelli General Cable Works v Oscar Faber and Partners HL 2-Jan-1983
The plaintiff asked the defendant consulting engineer to design an extension to their factory in 1969. Not later than in April 1970, cracks developed in the chimney. In 1977 the cause of the damage was discovered. It arose from design faults in the . .

Cited by:

Cited – Abbott and Another v Will Gannon and Smith Ltd CA 2-Mar-2005
The claimant had employed the defendants to design refurbishment works for their hotel. The work was said to be negligent, and the claimant sought damages. The defendant argued as a preliminary point that the claim was time barred. The question was . .
Cited – W v W; J v Raewyn Bell PC 19-Jan-1999
PC (New Zealand) The claimants sught to recover exemplary damages from defendants convicted of criminal offences against them.
Held: There were differences in the system between New Zealand and the English . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Construction, Local Government, Negligence

Updated: 19 May 2022; Ref: scu.82411

Haydon and Others v Lo and Lo (A Firm) and Another: PC 23 Jan 1997

(Hong Kong) A claim was made under a professional indemnity policy. The solicitors’ clerk had through a series of frauds embezzled some HK$50m. The insurers said that this was one claim, and that their liability was limited to the maximum under the policy. The question was whether this was ‘one claim’ or a series of claims.
Held: The phrase referred to the claim as directed against the firm by the client who had lost out, and not to the several acts of appropriation by the clerk. ‘it is the underlying facts which are determinative, and . . the formulation of the claim by the third party cannot be decisive of an insurer’s liability, whether for the purpose of calculating the deductible, or for any other purpose. ‘
(Hong Kong)

Judges:

Lord Goff of Chieveley, Lord Griffiths, Lord Lloyd of Berwick, Lord Hope of Craighead, Sir Christopher Slade

Citations:

Times 23-Jan-1997, [1997] UKPC 2, [1997] 1 WLR 198

Links:

Bailii

Jurisdiction:

Commonwealth

Citing:

Cited – Australia and New Zealand Bank Limited v Colonial and Eagle Wharves Limited 1960
A claim was made under an all risks insurance policy on goods taken out by a firm of wharfingers. There was an excess of andpound;100 each and every claim. During the currency of the policy the wharfingers misdelivered a total of 246 bales on 30 . .
Cited – West Wake Price and Co v Ching 1957
A clerk employed by a firm of accountants defrauded two of the firm’s clients of andpound;20,000 over a period of about three years.
Held: One can not ‘pay’ a cause of action.
Devlin J said: ‘I think that the primary meaning of the word . .
Lists of cited by and citing cases may be incomplete.

Insurance, Commonwealth

Updated: 19 May 2022; Ref: scu.81285

Harley v McDonald; Glasgow Harley (A Firm) v McDonald: PC 10 Apr 2001

(New Zealand) A solicitor’s duty to the court was not breached merely because he had, on his client’s instructions, pursued a case which was hopeless. It was also inapposite to penalize him for work undertaken before the court had warned him of the view that the case was hopeless. The solicitor, as an officer of the court, has duties to achieve a minimum level of competence and not to abuse the court’s process. In its nature, the procedure of penalising a solicitor in costs, will be summary. The court should allow the solicitor proper opportunity to defend himself, and should restrain itself from investigating matters which were within judicial knowledge.

Citations:

Times 15-May-2001, [2001] UKPC 20, Nos 9 of 2000 and 50 of 2000, [2001] 2 WLR 1749, [2001] 2 AC 678, [2001] Lloyd’s Rep PN 584

Links:

Bailii, PC, PC

Citing:

Cited – Myers v Elman HL 1939
The solicitor had successfully appealed against an order for a contribution to the other party’s legal costs, after his clerk had filed statements in court which he knew to be misleading. The solicitor’s appeal had been successful.
Held: The . .
Lists of cited by and citing cases may be incomplete.

Legal Professions, Commonwealth

Updated: 19 May 2022; Ref: scu.81242

Goss and others v Laurence George Chilcott As Liquidator of Central Acceptance Limited (In Liquidation): PC 23 May 1996

(New Zealand) Mr and Mrs Goss, had been granted a loan by the claimant finance company under a mortgage instrument that had been avoided by the claimant because it had been fraudulently altered by Mr Haddon, an employee of the claimant, without the claimant’s authority. Mr Haddon was the brother of Mrs Goss. The advance from the claimant having been made available to Mr and Mrs Goss, it was as agreed between them and Mr Haddon in fact received by Mr Haddon. Mr and Mrs Goss took no security from Mr Haddon. Mr Haddon was unable to repay the advance. Mr and Mrs Goss argued that their inability to recover the money from Mr Haddon constituted a defence of change of position to the claimant’s action for restitution of the money paid for a consideration that had totally failed.
Held: The loan remained repayable despite the unenforceability of the mortgage instrument under which it was secured. The defence failed because Mr and Mrs Goss knew that the money lent would have to be repaid to the claimant and, in paying it to Mr Haddon, they had taken the risk that the loss would fall on them.
Lord Goff said: ‘From the beginning, the Defendants were under an obligation to repay the advance once it had been paid to them or to their order; and this obligation was of course unaffected by the fact that they had allowed the money to be paid over to Mr Haddon. The effect of the alteration of the mortgage instrument was that their contractual obligation to repay the money was discharged; but they had nevertheless been enriched by the receipt of the money, and prima facie were liable in restitution to restore it. They had however allowed the money to be paid over to Mr Haddon in circumstances in which, as they well knew, the money would nevertheless have to be repaid to the company. They had, therefore, in allowing the money to be paid to Mr Haddon, deliberately taken the risk that he would be unable to repay the money, in which event they themselves would have to repay it without recourse to him. Since any action by them against Mr Haddon would now be fruitless they are seeking, by invoking the defence of change of position, to shift that loss onto the company. This, in their Lordships’ opinion, they cannot do. The fact that they cannot now obtain reimbursement from Mr Haddon does not, in the circumstances of the present case, render it inequitable for them to be required to make restitution to the company in respect of the enrichment which they have received at the company’s expense.’

Judges:

Lord Goff of Chieveley, Lord Jauncey of Tullichettle, Lord Steyn, Lord Hoffmann, Lord Cooke of Thorndon

Citations:

Gazette 12-Jun-1996, Times 06-Jun-1996, [1996] UKPC 17, [1996] AC 788

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

Cited – Davidson, Public Officer, &Amp;C v Cooper And Another 6-Jul-1844
. .
Cited – Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd HL 15-Jun-1942
A contract for the supply by the respondents of special machinery to be manufactured by them was treated as an ordinary contract for the sale of goods. It began valid, but suffered frustration by the outbreak of war.
Held: Lord Wright restated . .
Cited – David Securities Pty Ltd v Commonwealth Bank of Australia 7-Oct-1992
(High Court of Australia ) Restitution – Money paid under mistake – Mistake of law – Right to recover – Unjust enrichment – Defences – Change of position. . .

Cited by:

Cited – Kommune and Another v DEPFA Acs Bank ComC 4-Sep-2009
Local authorities in Denmark sought to recover sums paid to the defendant banks for swap trading, saying that the payments had been outwith their powers. . .
Lists of cited by and citing cases may be incomplete.

Banking, Commonwealth, Equity

Updated: 19 May 2022; Ref: scu.80939

Michael Gayle v the Queen (Jamaica): PC 2 Jul 1996

The judicial Committee of the Privy-Council is not to be used as second court of appeal on matters of fact.

Citations:

Times 02-Jul-1996, Appeal No 40 of 1995, Appeal No 40 of 1995, [1996] UKPC 3, [1996] UKPC 18, [2012] ECHR 1636, [2012] ECHR 1635, [2012] ECHR 1637, [1990] ECHR 34, [2009] ECHR 619, [1980] ECHR 9, [1997] ECHR 205, [2014] ECHR 293, [1978] ECHR 8, [2010] ECHR 2263, [1994] ECHR 59, [2011] ECHR 2422, [1985] ECHR 14, [2016] ECHR 699, [2016] ECHR 704, [2016] ECHR 986, [2017] ECHR 32

Links:

PC, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii, Bailii

Jurisdiction, Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.80774

Dunkley and Robinson v The Queen: PC 1 Nov 1994

(Jamaica) The appellant’s counsel had walked out of a murder trial after a dispute with the judge, leaving the appellant unrepresented for the remainder of the proceedings.
Held: A defendant in a capital murder case is to be allowed to find new counsel after his counsel quit. A case which had continued without this being allowed was unfair: ‘. . . where a defendant faces a capital charge and is left unrepresented through no fault of his own the interest of justice require that in all but the most exceptional cases there be a reasonable adjournment to enable him to try and secure alternative representation.’

Citations:

Independent 01-Nov-1994, Gazette 09-Nov-1994, [1995] 1 AC 419

Citing:

Applied – Robinson v The Queen PC 1985
Where a defendant found himself unrepresented on the day of trial, an adjournment should be granted. The constitutional right to representation was not a guarantee of representation but a right for the defendant to arrange representation at his own . .

Cited by:

Cited – Gianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
Cited – Gianchand Jahree v The State PC 28-Feb-2005
(Mauritius) The defendant appealed his conviction for possession of counterfeit bank notes, saying he had been unrepresented throughout, and that the magistrate had intervened in the character of a prosecutor.
Held: The right to representation . .
Cited – Grant v The Queen PC 16-Jan-2006
(Jamaica) The defendant appealed his conviction for murder saying that the admission of an unsworn statement by one witness and the non-admission of another similar statement who did not either attend court was unconstitutional. He shot the victim . .
Cited – Delroy Ricketts v The Queen PC 15-Dec-1997
(Jamaica) Special leave was granted to the defendant to appeal his conviction for murder. Counsel had been late for his trial, and the jury empanelled. When counsel arrived he said the defendant had not understood the judge. A trial took place as to . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 19 May 2022; Ref: scu.80170

Director of Buildings and Lands v Shun Fung Ironworks Ltd: PC 20 Feb 1995

Compensation is payable for losses properly anticipating resumption of possession of the land. The principle of equivalence gives rise to the statutory right to interest under section 11(1). The council explained the conceptual foundation of the discounted cash flow basis of calculation: ‘In this calculation the discount rate, or capitalisation rate, comprises the rate at which an amount of money payable at a future date should be reduced to arrive at its present value. Its present value is the price which a person would pay now for the right or prospect of receiving the amount of money in question at the future date. Three ingredients can be identified in the discount rate. One is the rate of return the potential purchaser would expect on his money, assuming that the payment to him at the future date is free of risk. A second ingredient is the allowance the potential purchaser would make because of the likely impact of inflation. He is buying today, in today’s currency, the right to be paid at a future date an amount which, when paid, will be paid in tomorrow’s depreciated currency. The third ingredient is the risk factor. The greater the risk that the purchaser will not receive in due course the future payments he is buying, the higher the rate of return he will require.’

Judges:

Lord Nicholls, Lord Keith of Kinkel, Lord Mustill, Lord Slynn of Hadley, Lord Lloyd of Berwick

Citations:

Times 27-Feb-1995, [1995] 2 AC 111

Links:

PC

Statutes:

Compulsory Purchase Act 1965 11(1)

Cited by:

Cited – Halstead v Council of City of Manchester CA 23-Oct-1997
Land had been compulsorily purchased, and the compensation agreed, but after long delays in payment, not as to the calculation of interest.
Held: Interest would be payable from the date of entry. The limitation period arose only once the . .
Cited – Mohammed Aslam v South Bedfordshire District Council CA 21-Dec-2000
The claimant appealed an award of the Lands Tribunal of compensation for an order discontinuing his use as a slaughterhouse of premises of which he held a long lease. The tribunal had applied a discount for wastage on sheep carcasses of 25%, but had . .
Cited – Faraday v Carmarthenshire County Council CA 10-May-2004
The claimant appealed against an award of compensation on the compulsory acquisition of his land by the defendant.
Held: The award was incorrect. The authority had wrongly deducted a sum in respect of ‘freed up time’ – which would have allowed . .
Cited – Ryde International Plc v London Regional Transport CA 5-Mar-2004
The landowner had developed land which was then made the subject of compulsory purchase. The court was asked how the compensation was to be calculated. The landowner expected to sell the development as a whole. The respondent argued that the profit . .
Cited – Moto Hospitality Ltd v Secretary of State for Transport CA 26-Jul-2007
The company sought damages to its business on a motorway service station when works closed an access road.
Held: The Secretary of State’s appeal succeeded. A claim for compensation under section 10 had not been established, at least in respect . .
Cited – Star Energy Weald Basin Ltd and Another v Bocardo Sa SC 28-Jul-2010
The defendant had obtained a licence to extract oil from its land. In order to do so it had to drill out and deep under the Bocardo’s land. No damage at all was caused to B’s land at or near the surface. B claimed in trespass for damages. It now . .
Lists of cited by and citing cases may be incomplete.

Land, Commonwealth, Damages

Updated: 19 May 2022; Ref: scu.79977

Rupert Crosdale v The Queen: PC 6 Apr 1995

(Jamaica) A court’s insistence that a submission of no case to answer must be made in the presence of jury was unfair. When considering submissions of no case to answer, the judge should invite the jury to retire and, if he decided to reject the plea, he should say nothing to the jury about it. Where in any case the jury had remained in court during the submissions, the question for the appeal court would be whether in the circumstances of the case there was any significant risk of prejudice having resulted from the irregularity.

Citations:

Gazette 21-Jun-1995, [1995] 1 WLR 864, [1995] UKPC 1, Appeal No 13 of 1994

Links:

Bailii, PC, PC

Jurisdiction:

England and Wales

Cited by:

Cited – Michael Adams and Frederick Lawrence v Regina PC 18-Mar-2002
PC (Jamaica) The defendants appealed against convictions for non-capital murder. Because of delays, the defendants had served almost the full minimum sentence.
Held: The trial judge had heard a plea of no . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice

Updated: 19 May 2022; Ref: scu.79678

Chan Wai-Keung v The Queen: PC 10 Jan 1994

(Hong Kong) Evidence from a witness who was awaiting sentence in an unrelated matter was admissible since the jury had been warned of the dangers of such evidence. Lord Mustill said: ‘Once the courts have taken the large step, as they undoubtedly have, of recognising that circumstances may justify the calling of a witness who stands to gain by giving false evidence, it becomes impossible to say that what happened in the present case was necessarily contrary to the proper conduct of the murder trial. What was required was that the potential fallibility of [the witness] should be put squarely before the jury, and this is what was done.’
Evidence from a convict looking for a reduced sentence was admissible with an appropriate warning.

Judges:

Lord Mustill

Citations:

Times 21-Dec-1994, Independent 10-Jan-1994, [1995] 2 Cr App R 194, [1994] UKPC 47

Links:

Bailii

Cited by:

Cited – Gibson, Regina v CACD 11-Jan-2006
The defendant renewed has application for leave to appeal against his conviction for the murder of his daughter-in-law. The principle evidence against him was that of an accomplice. She had received letters to say that no further action would be . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Criminal Evidence, Commonwealth, Commonwealth

Updated: 19 May 2022; Ref: scu.78971

Cheah Theam Swee v Equitcorp Finance Group Ltd and Another: PC 5 Nov 1991

(New Zealand) A had given two charges over his shares to different lenders. The charges came to be both owned by the same person, who obtained judgment under the first charge, but then exercised its power of sale under the second, waiving its priority under the first. The chargor complained that the chargee should have exercised his power under the first charge which would have discharged the judgment.
Held: Owners of different mortgagees of a property can agree to alter the priority of their respective charges irrespective of the wishes of the chargor, and without needing his consent. The mortgagor had no control over which remedy was taken by the chargees.

Citations:

Gazette 08-Jan-1992, [1991] 4 All ER 989, [1991] UKPC 39

Links:

Bailii

Citing:

Distinguished – Palmer v Hendrie 1859
. .
See Also – Cheah Theam Swee v Equiticorp Finance Group Ltd. And, Equiticorp Nominees Ltd PC 12-Jul-1989
New Zealand . .
Lists of cited by and citing cases may be incomplete.

Company, Banking, Commonwealth

Updated: 19 May 2022; Ref: scu.78999

Brooks v Director of Public Prosecutions and Another: PC 2 Mar 1994

(Jamaica) The DPP successfully applied for a voluntary bill after the resident magistrate had discharged the defendant on the ground that having heard the evidence, there was no case to answer. The challenge to the DPP’s decision to seek a voluntary bill was advanced not on the ground of double jeopardy, but rather of abuse of process.
Held: The DPP or the judge should treat the decision of the resident magistrate with the greatest respect and regard their jurisdiction as one to be exercised with great circumspection. There have to be exceptional circumstances to warrant prosecuting a defendant after it has been found in committal proceedings that there is no case to answer. Nevertheless, a judge has the power to issue a voluntary bill of indictment ex parte.

Judges:

Lord Woolf

Citations:

Gazette 02-Mar-1994, [1994] 1 AC 568, [1994] UKPC 1

Links:

Bailii

Cited by:

Cited – Regina (on the Application of Redgrave) v The Commissioner of Police for the Metropolis CA 22-Jan-2003
The police officer had been accused of an offence. The case was discharged under the section at committal. The Commissioner sought to commence disciplinary proceedings on the same evidence.
Held: The tests of the two sets of hearings were . .
Cited – Gadd, Regina v QBD 10-Oct-2014
The prosecutor sought leave to bring a voluntary bill of indictment, to pursue historic sex abuse allegations against the defendant. The defendant objected to counts founded on facts which were the substance of a charge of indecent assault . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 18 May 2022; Ref: scu.78679

Attorney General of Trinidad and Tobago v Phillip: PC 9 Nov 1994

A pardon which had been give to insurrectionists was invalid, since it purported to excuse future conduct also, but there had been no duress shown. There is no general power to excuse a crime before it is committed. Lord Woolf: ‘A pardon must in the ordinary way only relate to offences which have already been committed ….However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed . This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’ The prosecution of a person who in exchange for his co-operation has received an undertaking, promise or representation that he would not be charged is capable of amounting to an abuse of process.
Lord Bridge: ‘However while a pardon can expunge past offences, a power to pardon cannot be used to dispense with criminal responsibility for an offence which has not yet been committed. This is a principle of general application which is of the greatest importance. The state cannot be allowed to use a power to pardon to enable the law to be set aside by permitting it to be contravened with impunity.’

Judges:

Lord Woolf

Citations:

Independent 19-Oct-1994, Times 11-Oct-1994, Gazette 09-Nov-1994, [1995] 1 AC 396

Citing:

See Also – Lennox Phillip and Others v Director of Public Prosecutions of Trinidad and Tobago and Another; Same vCommissioners of Prisons PC 19-Feb-1992
(Trinidad and Tobago) There had been an insurrection, and many people were taken prisoner by the insurrectionists. To secure their release, the President issued an amnesty to all the insurgents, including the applicant. After surrendering, the . .

Cited by:

Cited – Regina (Pretty) v Director of Public Prosecutions, and Another, Medical Ethics Alliance and Others, interveners Admn 18-Oct-2001
The function of the Director’s office is statutory, and his powers are those laid down. He is not able to excuse possible criminal conduct in advance, and nor could he establish a policy of not applying certain statutory provisions. The Suicide Act . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights, Commonwealth

Updated: 18 May 2022; Ref: scu.77948

Official Trustee in Bankruptcy v Citibank Savings Ltd: 1995

(New South Wales) Mr and Mrs P owned and controlled W Ltd. W Ltd borrowed monies from Citibank which took security for repayment in the form of a charge over the home of Mr and Mrs P and also a charge over the home of the parents of Mr P. On the face of the documents, Mr and Mrs P and the parents of Mr P were co-sureties for the debt of W Ltd. W Ltd defaulted and Mr and Mrs P were made bankrupt. Their trustee in bankruptcy sold their home and repaid the debt to Citibank. The trustee then claimed an equal contribution from Mr P’s parents on the basis that they were co-sureties with Mr and Mrs P and that the default position was that the co-sureties were equally liable to contribute to the payment of the debt.
Held: The claim by the trustee in bankruptcy was dismissed. Mr P’s parents had entered into the charge at the request of Mr and Mrs P and therefore Mr and Mrs P were liable to indemnify Mr P’s parents and, accordingly, were not entitled to claim a contribution from them. A right of contribution may not arise where two persons borrow money but that money is applied for the purposes of only one of them, or if one guarantor enjoys the whole benefit of the guarantee in another capacity to the exclusion of his co-surety.
In considering whether common intention is essential to rebut contribution, Bryson J said: ‘The position taken by the plaintiff’s counsel before me was to the effect that the prima facie right of contribution can only be rebutted if a common intention to the contrary is clearly proved by evidence of some agreement or arrangement. No doubt it is very usual that rebuttal takes that form, but in my opinion it is not necessary that there should be a common intention or a bilateral arrangement, and it is not necessary that there should be any expression of an intention or arrangement, as circumstances can occur in which an intended outcome is so clear and obvious that it must be imputed to the parties that they intended it. Quite apart from any intention held by the parties or imputed to them, circumstances can occur in which, without there being any expression of intention or actual advertence to the subject of contribution, it is clear that equity does not require that an obligation to make contribution should be imposed on a party. The court should not lose sight of the origin of the right to contribution in the equitable principle that equity is equality, or forget that facts may exist in which it is not appropriate to treat parties under a common liability as in an equal position, or in which some other equitable principle ought to be given effect.’

Judges:

Bryson J

Citations:

[1999] BPIR 754, (1995) 38 NSWLR 116

Cited by:

Cited – Day v Shaw and Another ChD 17-Jan-2014
Mr and Mrs Shaw had granted a second charge over their jointly-owned matrimonial home to secure the personal guarantee given by their daughter and by Mr Shaw in respect of a bank loan to a company (Avon). Their daughter and Mr Shaw were the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity

Updated: 18 May 2022; Ref: scu.567255

John De Freitas v The Queen: 1960

(West Indian Federal Supreme Court) If the prosecution have shown that the defendant’s actions were not done in self defence, then that issue is eliminated from the case.

Citations:

[1960] 2 WIR 523

Cited by:

Appeal from – John De Freitas v The Queen PC 10-Jul-1961
(West Indies) . .
Preferred – Palmer v The Queen PC 23-Nov-1970
It is a defence in criminal law to a charge of assault if the defendant had an honest belief that he was going to be attacked and reacted with proportionate force: ‘If there has been an attack so that defence is reasonably necessary, it should be . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 18 May 2022; Ref: scu.539753

Stopforth v Goyer: 1978

(High Court of Ontario) A claim was made for defamation in remarks made by the defendant about the plaintiff to media representative who were present in parliament, just after he left the Ottawa chamber at the conclusion of the question period. The plaintiff had been a senior member of a team having conduct of the delivery of weapons systems to the government. The defendant had been the relevant minister. It was accepted that the defendant was taken to assume that his acceptedly defamatory words would be repulished by the media. The defendant claimed qualified privilege.
Held: The defence was not made out. There was no duty falling on him at the time to utter the words he did, and nor was there a reciprocal duty in the press to receive the statement.

Judges:

Lief J

Citations:

(1978) 87 DLR (3d) 373, (1978) 4 CCLT 265

Cited by:

Cited – Chaytor 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 . .
Cited – Makudi 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 . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Defamation, Media

Updated: 18 May 2022; Ref: scu.427747

Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union: 1979

(Federal Court of Australia) Deane J interpreted a statute using the word ‘substantial’ saying that it ‘is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision.’

Judges:

Deane J

Citations:

(1979) 42 FLR 331

Cited by:

Cited – Agbaje v Akinnoye-Agbaje SC 10-Mar-2010
The parties had divorced in Nigeria, but the former wife now sought relief in the UK under section 10 of the 194 Act. The wife said that she lived here, but the order made in Nigeria was severely detrimental requiring her either to live here in . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 18 May 2022; Ref: scu.406669

Schaefer v Schuman: PC 1972

(New South Wales – Australia) A promise to leave the property had been performed, and the issue was as to the relevance, if any, and the effect of an earier promise when the value of the devise was sought to be reduced by an order by way of financial provision under the New South Wales Family Provision on Inheritance legislation. The rights of the devisee were properly founded in contract. Held (majority, Lord Simon of Glaisdale dissenting on this as on the major point in the case). The case was indeed properly founded in contract, and, that being so, it was immune from the effect of an order under the family provision legislation.

Judges:

Lord Simon of Glaisdale

Citations:

[1972] AC 572

Jurisdiction:

Australia

Cited by:

Cited – Thorner v Major and others CA 2-Jul-2008
The deceased had written a will, revoked it but then not made another. The claimant had worked for the deceased understanding that property would be left to him, and now claimed that the estate property was held under a trust for him.
Held: . .
Lists of cited by and citing cases may be incomplete.

Estoppel, Wills and Probate, Contract, Commonwealth

Updated: 18 May 2022; Ref: scu.324695

Dirk Gysbert Van Breda v Johan Conrad Silberbauer: 11 Dec 1869

Action by the Owner of a Mill against the Owner of lands situate above the Mill in which, or over which, part of the water that supplied the Mill arose and flowed, for diversion and subtraction of such water. The Plaintiff claimed under grants and certain Regulations and Ordinances made by the Governor and Council of the Colony of the Cape of Good Hope, as well as upon a right of servitude by prescription. Judgment was given, with damages, for the Plaintiff. On appeal such judgment affirmed, the Judicial Committee being of opinion that, whether the power to legislate reapecting the water-rights of the lands in which the water arose, or over which it flowcd, had or had not been sufficiently reserved in the original grants by the Governer and Council to the then Owners, yet that it was abundantly shown, that the Legislature of the Colony had exercised authority, by Regulations and Ordinances, over the water in question, by which the derivative rights of the Plaintiff in the Court below had been regulated znd decIared

Citations:

[1869] EngR 58, (1869) 6 Moo PC NS 319, (1869) 16 ER 746

Links:

Commonlii

Jurisdiction:

England and Wales

Commonwealth

Updated: 18 May 2022; Ref: scu.280627

Mussumat Thukrain Sookraj Koowar v Government, Baboo Ajeet Sing, And Others: PC 3 Jul 1871

In Oude, before its annexation to the British rule, a Rajah was a TaIookdar of a large Talook. A younger branch of his family had a separate Mehal in the possession of A., wholly distinct from and independent of the Talook the Rajah possessed as representing the elder branch of the family. The Oude Government, for fiscal purposes, included A’s Mehal with the Rajah’s Talook so that the Rajah as the elder branch of the family represented A.’s Mehal at the Court at Lucknow, notwithstanding that A. remained in undisturbed possession as absolute Owner, paying through the Rajah for his Mehal a proportion of the jumma fixed on the Talook. This relation between the Rajah and A. subsisted up to the time of the annexation of Oude by the British Government. While the Government was making a settlement with the Landowners, and A. was about to apply for a distinct settlement of his Mehal, he, and after him his Widow was, induced by the Rajah not to do so, the Rajah in Letters fully recognizing As absolute right to the Mehal. After the suppression of the rebellion in Oude, and the Government had recognized the Talookdary tenure with its rights, a provisional settlement of the Talook including A.’s Mehal, was made with the Rajah ; but before a Sunnud was granted to him, Government confiscated half his estate for concealment of Arms. The Rajah suppressed the fact of the trust relation of the Mehal of A., and contrived that it should be included in the half part of the estate the Government had confiscated ; which Mehal the Government as a reward granted to Oude loyalists. A.’s Widow brought a suit against the Government and the Grantees for the restoration of the Mehal and a settlement, The Financial Commissioner held that as the Rajah was the registered Owner of the Mehal of A., included in his Talook, it had been properly forfeited. Such finding reversed on appeal, on the ground that A. was the acknowledged cestui que trust of the Rajah, and that A.’s Widow, as equitable Owner was not affected as between her and the Government by the act of confiscation of half the Rajah’s Talook.

Citations:

[1871] EngR 27, (1871) 14 Moo Ind App 112, (1871) 20 ER 728

Links:

Commonlii

Trusts, Commonwealth

Updated: 18 May 2022; Ref: scu.280208

Trustees Executors and Agency Co Ltd v Federal Commissioner of Taxation: 1933

The court was asked whether Australian estate duty could be levied on movables situated abroad.
Held: When testing the validity of a law passed by the government of a dominion, the question was ‘whether the law in question can be truly described as being for the peace, order and good government of the Dominion concerned.’ This law was extra territorial.

Judges:

Evatt J

Citations:

(1933) 49 CLR 220

Cited by:

Cited – Bancoult, Regina (on the Application of) v Secretary of State for Foreign and Commonwealth Affairs (No 2) HL 22-Oct-2008
The claimants challenged the 2004 Order which prevented their return to their homes on the Chagos Islands. The islanders had been taken off the island to leave it for use as a US airbase. In 2004, the island was no longer needed, and payment had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 18 May 2022; Ref: scu.277171

Chin Keow v Government of Malaysia: PC 1967

Citations:

[1967] 1 WLR 813

Citing:

Dicta Approved – Bolam v Friern Hospital Management Committee QBD 1957
Professional to use Skilled Persons Ordinary Care
Negligence was alleged against a doctor.
Held: McNair J directed the jury: ‘Where some special skill is exercised, the test for negligence is not the test of the man on the Clapham omnibus, because he has not got this special skill. The test . .

Cited by:

Mentioned – Whitehouse v Jordan HL 17-Dec-1980
The plaintiff sued for brain damage suffered at birth by use of forceps at the alleged professional negligence of his doctor. The Court of Appeal had reversed the judge’s finding in his favour.
Held: In this case most of the evidence at issue . .
Lists of cited by and citing cases may be incomplete.

Negligence, Commonwealth

Updated: 18 May 2022; Ref: scu.269667

Sze Hai Tong Bank Ltd v Rambler Cycle Co Ltd: PC 1959

Lord Denning noted that the exclusion clause at issue ‘on the face of it, could not be more comprehensive’ but declined to interpret it as absolving the shipping company from liability. He said: ‘If such an extreme width were given to the exemption clause, it would run counter to the main object and intent of the contract. For the contract, as it seems to their Lordships has, as one of its main objects, the proper delivery of the goods by the shipping company, ‘unto order or his or their assigns’, against the production of the bill of lading. It would defeat this object entirely if the shipping company was at liberty, at its own will and pleasure, to deliver the goods to somebody else, to somebody not entitled at all, without being liable for the consequences. The clause must therefore be limited and modified to the extent necessary to enable effect to be given to the main object and intent of the contract . . ‘

Judges:

Lord Denning

Citations:

[1959] AC 576, [1959] 3 All ER 182, [1959] 2 Lloyds Rep 114

Cited by:

Mentioned – George Mitchell (Chesterhall) Ltd v Finney Lock Seeds Ltd CA 29-Sep-1982
The buyer bought 30lbs of cabbage seed, but the seed was not correct, and the crop was worthless. The seed cost pounds 192, but the farmer lost pounds 61,000. The seed supplier appealed the award of the larger amount and interest, saying that their . .
Lists of cited by and citing cases may be incomplete.

Contract, Commonwealth

Updated: 17 May 2022; Ref: scu.266866

Regina v Flaherty and Others: 1968

Asprey J considered the mistakae as to the woman’s consent as a defence to a charge of rape: ‘a long line of authority establishes, at any rate so far as I am concerned, that the defence of mistake requires that the accused holds both an honest and reasonable belief in the existence of a state of facts which, if true, would make the act charged innocent.’

Judges:

Asprey J

Citations:

(1968) 89 WN (Pt 1) (NSW) 141

Cited by:

Cited – Regina v Morgan HL 30-Apr-1975
The defendants appealed against their convictions for rape, denying mens rea and asserting a belief (even if mistaken) that the victim had consented.
Held: For a defence of mistake to succeed, the mistake must have been honestly made and need . .
Lists of cited by and citing cases may be incomplete.

Crime, Commonwealth

Updated: 17 May 2022; Ref: scu.258682

Hodak v Newman and Hodak: 1993

(Family Court of Australia) Lindenburgh J said: ‘I am of the opinion that the fact of parenthood is to be regarded as an important and significant factor in considering which proposals better advance the welfare of the child. Such fact does not, however, establish a presumption in favour of the natural parent, nor generate a preferential position in favour of the natural parent from which the Court commences its decision-making process . . Each case should be determined upon an examination of its own merits and of the individuals there involved.’

Judges:

Lindenmayer J

Citations:

(1993) 17 Fam LR 1, [1993] FamCA 83, (1993) FLC 92-421

Links:

Austlii

Cited by:

Approved – Rice v Miller 10-Sep-1993
(Family Court of Australia) Whilst there is a legislative presumption regarding equal shared parental responsibility between parents there is no presumption in favour of parents (jointly or severally) as regards the placement of children nor a . .
Approved – Re Evelyn CA 1998
. .
Cited – In Re G (A Minor) (Interim Care Order: Residential Assessment); G (Children), In Re (Residence: Same Sex Partner) HL 26-Jul-2006
The parties had been a lesbian couple each with children. Each now was in a new relationship. One registered the two daughters of the other at a school now local to her but without first consulting the birth mother, who then applied for residence . .
Lists of cited by and citing cases may be incomplete.

Children, Commonwealth

Updated: 17 May 2022; Ref: scu.244487

Thompson Newspapers Ltd v Director of Investigation and Research: 1990

(Supreme Court of Canada) The court considered a claim to exercise the privilege against self-incrimination.
Held: Whereas a compelled statement is evidence that would not have existed independently of the exercise of the powers of compulsion, evidence which exists independently of the compelled statements could have been found by other means and its quality does not depend on its past connection with the compelled statement. Accordingly evidence of the latter type is in no sense ‘testimonial’ and PSI ought not to attach to it.
Justice La Forest: ‘there is an important difference between the type of prejudice that will be suffered in the two cases. It is only when the testimony itself has to be relied on that the accused can be said to have been forced to actually create self-incriminatory evidence in his or her own trial. The compelled testimony is evidence that simply would not have existed independently of the exercise of the power to compel it; it is in this sense evidence which could have been obtained only from the accused.
By contrast, evidence derived from compelled testimony is, by definition, evidence that existed independently of the compelled testimony. This follows logically from the fact that it was evidence which was found, identified or understood as a result of the ‘clues’ provided by the compelled testimony. Although such evidence may have gone undetected or unappreciated in the absence of the compelled clues, going undetected or unappreciated is not the same thing as non-existence. The mere fact that the derivative evidence existed independently of the compelled testimony means that it could have been found by some other means, however low the probability of such discovery may have been . . . the difference between evidence which the accused has been forced to create (the compelled testimony), and the independently existing evidence he or she has been forced to assist in locating, identifying or explaining (evidence derived from compelled testimony), will be readily discernible. I believe its significance will be equally apparent.
The fact that derivative evidence exists independently of the compelled testimony means, as I have explained, that it could also have been discovered independently of any reliance on the compelled testimony. It also means that its quality as evidence does not depend on its past connection with the compelled testimony. Its relevance to the issues with which the subsequent trial is concerned, as well as the weight it is accorded by the trier of fact, are matters that can be determined independently of any consideration of its connection with the testimony of the accused.. . . What prejudice can an accused be said to suffer from being forced to confront evidence ‘derived’ from his or her compelled testimony, if that accused would have had to confront it even if the power to compel testimony had not been used against him or her? I do not think it can be said that the use of such evidence would be equivalent to forcing the accused to speak against himself or herself; once the derivative evidence is found or identified, its relevance and probative weight speak for themselves. The fact that such evidence was found through the evidence of the accused in no way strengthens the bearing that it, taken by itself, can have upon the questions before the trier of fact.’ and
‘In my view, derivative evidence that could not have been found or appreciated except as a result of the compelled testimony under the Act should in the exercise of the trial judge’s discretion be excluded since its admission would violate the principles of fundamental justice. As will be evident from what I have stated earlier, I do not think such exclusion should take place if the evidence would otherwise have been found and its relevance understood. There is nothing unfair in admitting relevant evidence of this kind …”
. . . In our judgment, the answer to the question posed by the Attorney General is ‘No’. We say that for a number of reasons. First, there is no doubt, and indeed it is not disputed before this court, that the privilege against self-incrimination is not absolute and in English law Parliament has, for a variety of reasons, in a whole range of different statutory contexts, made inroads upon that privilege.
So far as the English courts are concerned, there is, as it seems to us, no doubt that the documents to which we have referred would be regarded as admissible as a matter of law, subject of course to the trial judge’s discretion to exclude under section 78 of the Police and Criminal Evidence Act 1984.
The question which next arises is whether, in deference to the Strasbourg jurisprudence, this court should give a different answer to that which the English courts and the will of Parliament otherwise suggest. It seems to us that the distinction made in paragraphs 68 and 69 of the European Court of Human Rights’s judgment in Saunders’s case 23 EHRR 313, between statements made and other material independent of the making of a statement, is not only one to which we should have regard, but is one which, as it seems to us, is jurisprudentially sound. We say this for the reasons advanced in the judgment of La Forest J in the Thomson Newspapers case 67 DLR (4th) 161 which, via reference to the South African constitutional court’s decision in Ferreira v Levin 1996 (1) SA 984, was before the European Court in Saunders’s case. In our judgment, there is nothing in any of the speeches in Brown v Stott [2001] 2 WLR 817 which contradicts this conclusion. The Privy Council were seeking to limit the scope of the privilege against self-incriminating statements and pre-existing documents revealed by compelled statements were outwith their consideration.’

Judges:

Justice La Forest

Citations:

(1990) 54 CCC 417

Cited by:

Cited – C Plc and W v P and Secretary of State for the Home Office and the Attorney General ChD 26-May-2006
The claimant sought damages from the first defendant for breach of copyright. An ex parte search order had been executed, with the defendant asserting his privilege against self-incrimination. As computer disks were examined, potentially unlawful . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Litigation Practice

Updated: 17 May 2022; Ref: scu.242453

Farrington v Thomson and Bridgland: 1959

(Supreme Court of Victoria) Smith J said: ‘Proof of damage is, of course, necessary in addition. In my view, therefore, the rule should be taken to go this far at least, that if a public officer does an act which, to his knowledge, amounts to an abuse of his office, and he thereby causes damage to another person, then an action in tort for misfeasance in a public office will lie against him at the suit of that person’.

Judges:

Smith J

Citations:

[1959] VR 286

Cited by:

Approved – Tampion v Anderson 1973
(Full Court of Victoria) . .
Cited – Watkins v Home Office and others HL 29-Mar-2006
The claimant complained of misfeasance in public office by the prisons for having opened and read protected correspondence whilst he was in prison. The respondent argued that he had suffered no loss. The judge had found that bad faith was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 17 May 2022; Ref: scu.239999

Roncarelli v Duplessis: 1959

(Canada) The court discussed what was ‘targeted malice’ in the context of misfeasance.

Citations:

[1959] SCR 121

Cited by:

Cited – Odhavji Estate v Woodhouse 2003
(Supreme Court of Canada) The court reviewed the ingredients of misfeasance in public office.
Held: Iacobucci J said: ‘To summarize, I am of the opinion that the tort of misfeasance in a public office is an intentional tort whose . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Torts – Other

Updated: 17 May 2022; Ref: scu.240008

Gradwell (PTY) v Rostra Printers Ltd: 1959

(South Africa) An offer was made of andpound;42,000 for the shares and the loan account that was then outstanding to the parent company less amounts owed to lenders on first mortgages. An analysis showed that andpound;40,258 was owed on the loan account and taking into account the higher securities the amount actually paid was less than that amount.
Held: The repayment of the loan account would help the purchaser to effect the apparent purchase but the repayment of the debt was held not to infringe the provisions of the section.

Judges:

Schriener J

Citations:

[1959] (4) SA 419

Statutes:

Companies Act 1926 86(2)

Cited by:

Cited – Anglo Petroleum Ltd v TFB (Mortgages) Ltd ChD 24-Feb-2006
The company sought to say that loans of 15 million pounds were void under s151 of the 1985 Act. It was said that the loans infringed the provisions of s151 being unlawful financial assistance.
Held: The loans were valid: ‘if it is lawful for a . .
Cited – Armour Hick Northern Ltd v Whitehouse; Armour Trust Ltd ChD 1980
A vendor company was assisted by financial assistance given by a subsidiary.
Held: The use of money by a company to repay its existing indebtedness would not normally fall within the concept of the company giving financial assistance to . .
Lists of cited by and citing cases may be incomplete.

Company, Commonwealth

Updated: 17 May 2022; Ref: scu.238728

The Queen in Right of Alberta v Canadian Transport Commission: 1977

The Crown in right of Alberta may be equated with the Government of Alberta.

Citations:

(1977) 75 DLR (3d) 257

Cited by:

Cited – Regina v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Limited HL 13-Oct-2005
The applicant had previously received licences to fish for Patagonian Toothfish off South Georgia. The defendant had instructed the issuer of the licence in such a way that it was not renewed. It now had to establish that its article 1 rights had . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional

Updated: 17 May 2022; Ref: scu.231158

Attorney-General of Hong Kong v Nai-Keung: PC 1987

Textile export quotas (a permission to export textiles) which were surplus to the exporter’s requirements, which could be bought and sold under the apprpriate Hong Kong legislation, may be ‘property’ for the purposes of the law of theft.

Citations:

[1987] 1 WLR 1339

Cited by:

Cited – Ultraframe (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 . .
Cited – Wheatley and Another v The Commissioner of Police of the British Virgin Islands PC 4-May-2006
(The British Virgin Islands) The defendants appealed against convictions for theft and misconduct. Being civil servants they had entered in to contract with companies in which they had interests. . .
Cited – Regina v Preddy; Regina v Slade; Regina v Dhillon (Conjoined Appeals) HL 10-Jul-1996
The appellants were said to have made false mortgage applications. They appealed convictions for dishonestly obtaining property by deception.
Held: A chose in action created by an electronic bank transfer was not property which was capable of . .
Cited – Assets Recovery Agency v Olupitan and Another QBD 8-Feb-2007
The claimant was responsible for recovering money under the 2002 Act, and alleged that the first defendant had been engaged in a mortgage fraud.
Held: To succeed in such a claim for recovery the Claimant must prove, ‘on a balance of . .
Applied – Regina v Williams (Jacqueline) and Crick CACD 30-Jul-1993
The defendant was accused of having obtained by deception a mortgage advance, the amount having been paid by electronic transfer.
Held: The sum of money represented by a figure in a bank account was not fully property for the purposes of the . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Crime

Updated: 17 May 2022; Ref: scu.230286

Moevao v Department of Labour: 1980

(New Zealand) Richardson J said: ‘The justification for staying a prosecution is that the court is obliged to take that extreme step in order to protect its own processes from abuse. It does so in order to prevent the criminal processes from being used for purposes alien to the administration of criminal justice under law. It may intervene in this way if it concludes from the conduct of the prosecutor in relation to the prosecution that the court processes are being employed for ulterior purposes or in such a way (for example, through multiple or successive proceedings) as to cause improper vexation and oppression. The yardstick is not simply fairness to the particular accused. It is not whether the initiation and continuation of the particular process seems in the uncertain circumstances to be unfair to him. That may be an important consideration. But the focus is on the misuse of the court process by those responsible for the law enforcement. It is whether the continuation of the prosecution is inconsistent with the recognised purposes of the administration of criminal justice and so constitutes an abuse of the process of the court.’

Judges:

Richardson J

Citations:

[1980] 1 NZLR 464

Cited by:

Cited – Regina v Leeds Magistrates Court ex parte Serif Systems Limited and Hamilton Admn 9-Oct-1997
The applicant sought that summonses be set aside as an abuse of process, being begun to embarrass him as he set out to become an MP. Thirty one private summonses had been issued.
Held: Of the summonses to be continued it could not be said that . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Criminal Practice

Updated: 17 May 2022; Ref: scu.225278

Haldane v Haldane: PC 1977

(New Zealand) The court considered how under the New Zealand legislation for ancillary rlief, the court was to deal with property inherited by one party to the marriage: ‘Initially a gift or bequest to one spouse only is likely to fall outside the Act, because the other spouse will have made no contribution to it. But as time goes on, and depending on the nature of the property in question, the other spouse may well have made a direct or indirect contribution to its retention.’

Judges:

Lord Simon of Glaisdale

Citations:

[1977] AC 673

Cited by:

Cited – White v White HL 26-Oct-2000
The couple going through the divorce each had substantial farms and wished to continue farming. It had been a long marriage.
Held: Where a division of the assets of a family would satisfy the reasonable needs of either party on an ancillary . .
Lists of cited by and citing cases may be incomplete.

Family, Commonwealth

Updated: 16 May 2022; Ref: scu.197920

Rootes v Shelton: 1965

(High Court of Australia) Barwick CJ said: ‘By engaging in a sport or pastime the participants may be held to have accepted risks which are inherent in that sport or pastime: the tribunal of fact can make its own assessment of what the accepted risks are: but this does not eliminate all duty of care of the one participant to the other. Whether or not such a duty arises, and, if it does, its extent, must necessarily depend in each case upon its own circumstances. In this connection, the rules of the sport or game may constitute one of those circumstances: but, in my opinion, they are neither definitive of the existence nor of the extent of the duty; nor does their breach or non-observance necessarily constitute a breach of any duty found to exist.’
Kitto J said: ‘in a case such as the present, it must always be a question of fact, what exoneration from a duty of care otherwise incumbent upon the defendant was implied by the act of the plaintiff in joining in the activity. Unless the activity partakes of the nature of a war or of something else in which all is notoriously fair, the conclusion to be reached must necessarily depend, according to the concepts of common law, upon the reasonableness, in relation to the special circumstances, of the conduct which caused the plaintiff’s injury. That does not necessarily mean the compliance of that conduct with the rules, conventions or customs (if there are any) by which the correctness of conduct for the purpose of the carrying on of the activity as an organised affair is judged; for the tribunal of fact may think that in the situation in which the plaintiff’s injury was caused a participant might do what the defendant did and still not be acting unreasonably, even though he infringed the ‘rules of the game’. Non-compliance with such rules, conventions or customs (where they exist) is necessarily one consideration to be attended to upon the question of reasonableness; but it is only one, and it may be of much or little or even no weight in the circumstances.’

Judges:

Barwick CJ, Kitto J

Citations:

(1968) ALR 33, (1967) 116 CLR 383

Cited by:

Approved – Condon v Basi CA 30-Apr-1985
The parties were playing football. The defendant executed a late dangerous and foul tackle on the plaintiff breaking his leg. The defendant was sent off, and the plaintiff sued.
Held: Those taking part in competitive sport still owed a duty of . .
Cited – Blake v Galloway CA 25-Jun-2004
The claimant was injured whilst playing about with other members of his band throwing sticks at each other. The defendant appealed against a denial of his defence on non fit injuria.
Held: The horseplay in which the five youths were engaged . .
Lists of cited by and citing cases may be incomplete.

Negligence, Commonwealth

Updated: 16 May 2022; Ref: scu.194827

Classic International Pty Ltd v Lagos: 2002

(New South Wales Supreme Court) ‘I am satisfied that both parties believed that the agreement for lease would validly take effect according to its terms and that had they known of the substantial variation which the Retail Leases Act 1994 would impose upon the agreement, they would not have entered into it’ and ’42. I do not need to consider the vexed question of whether the mistake in the present case is one of fact or one of law. As to whether, in the law of Australia, the doctrine of common ‘mistake applies to’ a mistake of law, I need do no more that set out the following passage from Cheshire and Fifoot’s Law of Contract 8th Aust Ed., para 12.8: ‘Operative mistake traditionally has been confined to mistakes of fact and not of law. This distinction has always been blurred and has been notoriously difficult to apply. It appears that equity did not draw a clear line between mistakes of fact and law. If there was such a rule, it was often honoured in the breach. In Western Australia the law/fact distinction has been abolished by legislation (with certain safeguards). The whole question has now almost certainly been laid to rest by the decision of the High Court in David Securities Pty Ltd v Commonwealth Bank (1992) 175 CLR 353. In that case the distinction between mistake of law and mistake of fact was rejected in the light of a very considerable body of judicial and academic criticism of the distinction. . . . the rule precluding recovery of moneys paid under a mistake of law should be held not to form part of the law in Australia.’

Judges:

Palmer J

Citations:

[2002] NSWSC 115

Jurisdiction:

England and Wales

Cited by:

Cited – Margaret Brennan v Bolt Burdon, London Borough of Islington, Leigh Day and Co QBD 30-Oct-2003
The claimant had sought relief for the injury to her health suffered by condition of her flat. The legal advisers had settled the matter, thinking that the claim had not been timeously served. The defendant appealed an order that the compromise was . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Equity, Contract

Updated: 16 May 2022; Ref: scu.187292

Maxwell v Murphy: 1957

Sir Owen Dixon CJ said: ‘The general rule of the common law is that a statute changing the law ought not, unless the intention appears with reasonable certainty, to be understood as applying to facts or events that have already occurred in such a way as to confer or impose or otherwise affect rights or liabilities which the law had defined by reference to the past events.’ and ‘A cause of action which can be enforced is a very different thing to a cause of action the remedy for which is barred by lapse of time. Statutes which enable a person to enforce a cause of action which was then barred or provide a bar to an existing cause of action by abridging the time for its institution could hardly be described as merely procedural. They would affect substantive rights.’

Judges:

Sir Owen Dixon CJ

Citations:

(1957) 96 CLR 261

Cited by:

Cited – Wilson 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 lender of its . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – A v Hoare; H v Suffolk County Council, Secretary of State for Constitutional Affairs intervening; X and Y v London Borough of Wandsworth CA 12-Apr-2006
Each claimant sought damages for a criminal assault for which the defendant was said to be responsible. Each claim was to be out of the six year limitation period. In the first claim, the proposed defendant had since won a substantial sum from the . .
Cited – Yew Bon Tew v Kenderaan Bas Mara PC 7-Oct-1982
(Malaysia) In 1972 the appellants were injured by the respondent’s bus. At that time the local limitation period was 12 months. In 1974 the limitation period became three years. The appellants issued a writ in 1975. To succeed they would have to sue . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 16 May 2022; Ref: scu.184431

Gokal Chand v Hukam Chand-Nath Mal: PC 1921

While training for the ICS, the family member had been supported out of joint family resources it was held that the income earned by him from an appointment in the ICS was property of the joint family. This was a strict interpretation of the Hindu Fruits of learning doctrine.

Citations:

(1921) LR 48 IA 162

Cited by:

Cited – Singh v Singh and Another ChD 8-Apr-2014
The parties disputed ownership of various valuable properties. The father asserted that they were held under trusts following the Mitakshara Hindu code, under a common intention constructive trust. The son said that properties held in his own name . .
Lists of cited by and citing cases may be incomplete.

Commonwealth

Updated: 15 May 2022; Ref: scu.523689

Paxhaven Holdings Ltd v Attorney-General: 1974

(New Zealand) The court considered what interest in land was required to found an action in private nuisance: ‘In my opinion, however, the matter is clear in principle. In an action for nuisance the defence of jus tertii is excluded, and it is no answer for the respondent to contend in the present case that the nuisance was committed on an area of land mistakenly included in the grant of lease to the appellant from its landlord. De facto possession is sufficient to give the appellant his remedy’

Judges:

Mahon J

Citations:

[1974] 2 NZLR 185

Citing:

Applied – Foster v Warblington Urban District Council CA 1906
A nuisance was caused by the discharge of sewage by the defendant council into oyster beds. The plaintiff was an oyster merchant who had for many years been in occupation of the oyster beds which had been artificially constructed on the foreshore, . .

Cited by:

Cited – Hunter and Others v Canary Wharf Ltd HL 25-Apr-1997
The claimant, in a representative action complained that the works involved in the erection of the Canary Wharf tower constituted a nuisance in that the works created substantial clouds of dust and the building blocked her TV signals, so as to limit . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Nuisance

Updated: 13 May 2022; Ref: scu.195591

Regina v Sawyer: 2001

(Canada) the court considered the reasons underlying the need for secrecy of a jury’s deliberations: ‘The first reason supporting the need for secrecy is that confidentiality promotes candour and the kind of full and frank debate that is essential to this type of collegial decision making. While searching for unanimity, jurors should be free to explore out loud all avenues of reasoning without fear of exposure to public ridicule, contempt or hatred. This rationale is of vital importance to the potential acquittal of an unpopular accused, or one charged with a particularly repulsive crime. In my view, this rationale is sound, and does not require empirical confirmation. The Court of Appeal also placed considerable weight on the second rationale for the secrecy rule: the need to ensure finality of the verdict. Describing the verdict as the product of a dynamic process, the court emphasized the need to protect the solemnity of the verdict, as the product of the unanimous consensus which, when formally announced, carries the finality and authority of a legal pronouncement. That rationale is more abstract, and inevitably invites the question of why the finality of the verdict should prevail over its integrity in cases where that integrity is seriously put in issue. In a legal environment such as ours, which provides for generous review of judicial decisions on appeal, and which does not perceive the voicing of dissenting opinions on appeal as a threat to the authority of the law, I do not consider that finality, standing alone, is a convincing rationale for requiring secrecy. The respondent, as well as the interveners supporting its position and, in particular, the Attorney General of Quebec, place great emphasis on the third main rationale for the jury secrecy rule – the need to protect jurors from harassment, censure and reprisals. Our system of jury selection is sensitive to the privacy interests of prospective jurors (see R v Williams [1998] 1 SCR 1128), and the proper functioning of the jury system, a constitutionally protected right in serious criminal charges, depends upon the willingness of jurors to discharge their functions honestly and honourably. This in turn is dependent, at the very minimum, on a system that ensures the safety of jurors, their sense of security, as well as their privacy. I am fully satisfied that a considerable measure of secrecy surrounding the deliberations of the jury is essential to the proper functioning of that important institution and that the preceding rationales serve as a useful guide to the boundaries between the competing demands of secrecy and reviewability.’

Judges:

Arbour J

Citations:

[2001] 2 SCR 344

Jurisdiction:

England and Wales

Cited by:

Cited – Regina v Connor and another; Regina v Mirza HL 22-Jan-2004
Extension of Inquiries into Jury Room Activities
The defendants sought an enquiry as to events in the jury rooms on their trials. They said that the secrecy of a jury’s deliberations did not fit the human right to a fair trial. In one case, it was said that jurors believed that the defendant’s use . .
Lists of cited by and citing cases may be incomplete.

Criminal Practice, Commonwealth

Updated: 13 May 2022; Ref: scu.192267

Commissioner for Inland Revenue v Mitsubishi Motors New Zealand Ltd: PC 1 Nov 1995

(New Zealand) The taxpayer company sold cars to its dealers who resold them with warranties, for which it gave the dealers indemnities calculated on statistical average. The company sought to set off the reserve it created to make payments under the indemnities against the revenue of the year in which the cars were sold. The commissioner appealed its case to the Board.
Held: The reserve was claimable in the year of the car sale, even though the losses remained contingent. On the year of the sale the company acquired an accrued legal obligation, and had properly deducted the liabilities incurred against its profits.

Judges:

Lord Hoffmann

Citations:

Gazette 01-Nov-1995, [1996] AC 315

Statutes:

Inland revenue Act 1976 (New Zealand) 104

Income Tax, Commonwealth

Updated: 10 May 2022; Ref: scu.79312

Du Toit and Vos v Minister for Welfare and Population Development: 10 Sep 2002

(South African Constitutional Court) Prospective adoptive parents were a same-sex couple who challenged laws preventing them from adopting. The court said: ‘In their current form the impugned provisions exclude from their ambit potential joint adoptive parents who are unmarried, but who are partners in permanent same-sex life partnerships and who would otherwise meet the criteria set out in section 18 of the Child Care Act . . Their exclusion surely defeats the very essence and social purpose of adoption which is to provide the stability, commitment, affection and support important to a child’s development, which can be offered by suitably qualified persons . . Excluding partners in same sex life partnerships from adopting children jointly where they would otherwise be suitable to do so is in conflict with the principle [of the paramountcy of the interests of the child] . . It is clear from the evidence in this case that even though persons such as the applicants are suitable to adopt children jointly and provide them with family care, they cannot do so. The impugned provisions . . thus deprive children of the possibility of a loving and stable family life . . The provisions of the Child Care Act thus fail to accord paramountcy to the best interests of the children.’

Citations:

(2002) 13 BHRC 187, [2002] ZACC 20, CCT 40/01

Links:

Saflii

Jurisdiction:

England and Wales

Cited by:

Cited – In re P and Others, (Adoption: Unmarried couple) (Northern Ireland); In re G HL 18-Jun-2008
The applicants complained that as an unmarried couple they had been excluded from consideration as adopters.
Held: Northern Ireland legislation had not moved in the same way as it had for other jurisdictions within the UK. The greater . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Human Rights, Discrimination

Updated: 10 May 2022; Ref: scu.270010