Walker Trustees v Lord Advocate and Others: HL 1 Dec 1911

The Treaty of Union, article 20, enacts ‘That all heritable offices, superiorities, heritable jurisdictions, offices for life, and jurisdictions for life, be reserved to the owners thereof as rights of property, in the same manner as they are now enjoyed by the laws of Scotland notwithstanding this Treaty.’
The Usher of the White Rod at the time of the Union was entitled to receive certain fees from the recipients of honours conferred by the King as Sovereign of Scotland, and could recover these fees from a Scotsman in whatever part of the King’s dominions he, the grantee, might be in, and from an Englishman if he, the grantee, received the honour while in Scotland. From 1766 to 1904 the holders of the office claimed and received fees from the grantees of titles and dignities of the United Kingdom.
Held (rev. judgment of the Second Division) that although the effect might be to deprive the Usher of valuable emoluments, the terms of article 20 of the Treaty of Union were too unambiguous to be open to interpretation by any custom or practice which had grown up since, that by it the rights effeiring to the office of Usher were as before the Union, and consequently fees were only payable by a grantee of a Scottish honour or dignity, not by the grantees of honours or dignities of the United Kingdom.

Judges:

Lord Chancellor (Loreburn), Lord Atkinson, Lord Kinnear, and Lord Gorell

Citations:

[1911] UKHL 73, 49 SLR 73

Links:

Bailii

Statutes:

Treaty of Union

Jurisdiction:

Scotland

Constitutional

Updated: 23 May 2022; Ref: scu.619227

Mitchell v WT Grant Company: 13 May 1974

(Supreme Court of the USA) Stewart J said: ‘A basic change in the law upon a ground no firmer than a change in our membership invites the popular misconception that this institution is little different from the two political branches of the government. No misconception could do more lasting injury to this court and to the system of law which it is our abiding mission to serve.’

Judges:

White J

Citations:

416 US 600, 94 SCt. 1895, 40 Led 2d 406

Links:

LII

Jurisdiction:

United States

Cited by:

CitedLewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 20 May 2022; Ref: scu.622606

Planned Parenthood of Southeastern Pennsylvania v Casey: 29 Jun 1992

(Supreme Court of the USA) The Court discussed the grounds upon which it would depart from precedent and why it would not overrule its equally controversial decision on abortion in Roe v. Wade.
Held: ‘no judicial system could do society’s work if it eyed each issue afresh in every case that raised it . . . Indeed, the very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.’

Judges:

Justices O’Connor, Kennedy and Souter J.J

Citations:

(1992) 505 U.S. 833

Links:

LII

Jurisdiction:

United States

Cited by:

CitedLewis, Taylor and Mcleod, Brown, Taylor and Shaw v the Attorney General of Jamaica and Another PC 12-Sep-2000
(Jamaica) When the Privy Council considered a petition for mercy by a person sentenced to death, it could not revisit the decision, but could look only at the procedural fairness of the system. The system should allow properly for representations, . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 20 May 2022; Ref: scu.622605

National Westminster Bank Plc v Spectrum Plus Ltd and Others; In re Spectrum Plus Ltd (in liquidation): CA 12 Jul 2004

The High Court or the Court of Appeal should not follow a decision of the Privy Council in place of a decision of the House of Lords, unless the circumstances are quite exceptional and the court is satisfied that in practice the result would be a foregone conclusion

Judges:

Lord Phillips of Worth Matravers MR, Jonathan Parker, Jacob LJJ

Citations:

[2004] EWCA Civ 670, [2004] 3 WLR 503, [2004] Ch 337

Links:

Bailii

Statutes:

Insolvency Act 1986 112

Jurisdiction:

England and Wales

Cited by:

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

Constitutional, Insolvency

Updated: 20 May 2022; Ref: scu.622344

McKiernon v Secretary of State for Social Security: CA 26 Oct 1989

A statute granting a power to be amended by a subordinate instrument can only do so by an express power: ‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take into account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

Judges:

Lord Donaldson MR

Citations:

Guardian 31-Oct-1989, Court of Appeal (Civil Division) Transcript No 1017 of 1989

Jurisdiction:

England and Wales

Cited by:

ApprovedRegina v Secretary of State for the Environment Transport and the Regions and another, ex parte Spath Holme Limited HL 7-Dec-2000
The section in the 1985 Act created a power to prevent rent increases for tenancies of dwelling-houses for purposes including the alleviation of perceived hardship. Accordingly the Secretary of State could issue regulations whose effect was to limit . .
CitedOakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
ApprovedRegina v Secretary of State for Social Security, Ex parte Britnell (Alan) HL 1991
The applicant claimed and was paid benefits. There was later determined to have been an overpayment. A sum was recovered by deductions, but then he was granted only supplementary allowance. No deductions could be made from that, but the respondent . .
CitedOakley Inc v Animal Ltd and others CA 20-Oct-2005
It was argued that the Secretary of State, when implementing the Directive in the 2001 Regulations, had exceeded his powers in preserving provisions of the Registered Designs Act. The judge had held the Seceretary had exceeded his powers. The . .
CitedThe Public Law Project, Regina (on The Application of) v Lord Chancellor SC 13-Jul-2016
Proposed changes to the Legal Aid regulations were challenged as being invalid, for being discriminatory. If regulations are not authorised under statute, they will be invalid, even if they have been approved by resolutions of both Houses under the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 19 May 2022; Ref: scu.222834

Regina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions: HL 1972

The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency.
Held: There now exists no power in the courts to create new criminal offences. A new criminal offence could only be created by Act of Parliament. The House considered its ability to depart from its own previous decisions.
Lord Simon of Glaisdale set out the matters which should be included in the directions to the jury where a defendant faced charges of outraging public decency: ‘It should be emphasised that ‘outrage’, like ‘corrupt,’ is a very strong word. ‘Outraging public decency’ goes considerably beyond offending the susceptibilities of, or even shocking, reasonable people. Moreover the offence is, in my view, concerned with recognised minimum standards of decency, which are likely to vary from time to time.’ It is sufficient for liability that, on an objective assessment, the conduct complained of should cause public offence. Aa jury should be directed that, ‘outraging public decency goes considerably beyond offending the susceptibilities of or even shocking reasonable people.’
Lord Reid said: ‘It was decided by this House in Shaw v Director of Public Prosecutions [1962] AC 220 that conspiracy to corrupt public morals is a crime known to the law of England. So if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants’ main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished.
I dissented in Shaw’s case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.’ and ‘if the appellants are to succeed on this count, either this House must reverse that decision or there must be sufficient grounds for distinguishing this case. The appellants’ main argument is that we should reconsider that decision; alternatively they submit that it can and should be distinguished. I dissented in Shaw’s case. On reconsideration I still think that the decision was wrong and I see no reason to alter anything which I said in my speech. But it does not follow that I should now support a motion to reconsider the decision. I have said more than once in recent cases that our change of practice in no longer regarding previous decisions of this House as absolutely binding does not mean that whenever we think that a previous decision was wrong we should reverse it. In the general interest of certainty in the law we must be sure that there is some very good reason before we so act . . I think that however wrong or anomalous the decision may be it must stand and apply to cases reasonably analogous unless or until it is altered by Parliament.’ and
‘there is a material difference between merely exempting certain conduct from criminal penalties and making it lawful in the full sense.’

Judges:

Lord Reid, Lord Simon of Glaisdale

Citations:

[1973] AC 435, [1972] 2 All ER 898, 56 Cr App R 633

Jurisdiction:

England and Wales

Citing:

Re-ConsideredShaw v Director of Public Prosecutions HL 4-May-1961
Offence of Conspiracy to corrupt public morals
The defendant appealed against his convictions for conspiracy to corrupt public morals, and for living from the earnings of prostitution. He said that first was not an offence known to common law. After it became unlawful for a prostitute to ply her . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .

Cited by:

CitedRees v Darlington Memorial Hospital NHS Trust HL 16-Oct-2003
The claimant was disabled, and sought sterilisation because she feared the additional difficulties she would face as a mother. The sterilisation failed. She sought damages.
Held: The House having considered the issue in MacFarlane only . .
CitedRegina v Ching Choi CACD 7-May-1999
The defendant appealed his six convictions for outraging public decency. He had used a video camera and mirrors to record images of women using the toilet in a chinese supermarket. . .
CitedRegina v Curran CACD 29-Oct-1998
The defendant sought leave to appeal his convictions for outraging public decency. He had been seen having sex on the bonnet of a car in a car park at Heathrow.
Held: the acts complained of could found a conviction for outraging public . .
CitedRegina v Jones (Margaret), Regina v Milling and others HL 29-Mar-2006
Domestic Offence requires Domestic Defence
Each defendant sought to raise by way of defence of their otherwise criminal actions, the fact that they were attempting to prevent the commission by the government of the crime of waging an aggressive war in Iraq, and that their acts were . .
CitedRegina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd Admn 10-Nov-1994
The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It . .
CitedGreen, Regina (on the Application of) v The City of Westminster Magistrates’ Court, Thoday, Thompson Admn 5-Dec-2007
The claimant appealed from the refusal by the magistrate to issue summonses for the prosecution for blashemous libel of the Director General of the BBC and the producers of a show entitled ‘Jerry Springer – The Opera.’
Held: The gist of the . .
CitedDoherty and others v Birmingham City Council HL 30-Jul-2008
The House was asked ‘whether a local authority can obtain a summary order for possession against an occupier of a site which it owns and has been used for many years as a gipsy and travellers’ caravan site. His licence to occupy the site has come to . .
CitedDirector of Public Prosecution v Withers HL 20-Nov-1974
The House was asked to consider whether there existed the crime of a conspiracy to commit a public mischief.
Held: There was no such crime, since it was so undefined as to be unfair to any defendant. Although at common law no clear distinction . .
CitedThe Director of Public Prosecutions v SK Admn 10-Feb-2016
The prosecutor appealed against dismissal of a charge of conspiracy to pervert the course of justice. The defendant had completed somebody else’s community service sentence. The prosecutor said that such an act did affect something ‘in the course of . .
CitedAl Rabbat v Westminster Magistrates’ Court Admn 31-Jul-2017
The claimant appealed against refusal of an application for judicial review in turn of a refusal to allow private prosecutions of Tony Blair, Jack Straw and Lord Goldsmith in respect of their involvement in the war in Iraq, and the alleged crime of . .
CitedRegina v Kansal (2) HL 29-Nov-2001
The prosecutor had lead and relied at trial on evidence obtained by compulsory questioning under the 1986 Act.
Held: In doing so the prosecutor was acting to give effect to section 433.
The decision in Lambert to disallow retrospective . .
Lists of cited by and citing cases may be incomplete.

Crime, Constitutional

Updated: 19 May 2022; Ref: scu.186954

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

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 AlsoLennox 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:

CitedRegina (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

Chief Justice of Trinidad and Tobago v The Law Association of Trinidad and Tobago: PC 16 Aug 2018

Trinidad and Tobago – The Law Association having a constitutional duty to conduct any enquiry necessary as regards the Chief Justice. It resolved to establish a committee to enquire whether such a complaint was required, allegations having been made. The appellant’s objection that it had no power to do so was rejected, and he now appealed.
‘A vital element in any modern democratic constitution is the independence of the judiciary from the other arms of government, the executive and the legislature. This is crucial to maintaining the rule of law: the judges must be free to interpret and apply the law, in accordance with their judicial oaths, not only in disputes between private persons but also in disputes between private persons and the state. The state, in the shape of the executive, is as much subject to the rule of law as are private persons. An important part of the judicial task in a constitutional democracy is not only to ensure that public authorities act within their powers but also to enforce the fundamental rights of individuals against the state. Judicial independence is secured in a number of ways, but principally by providing for security of tenure: in particular this requires that a judge may only be removed from office, or otherwise penalised, for inability or misbehaviour and not because the government does not like the decisions which he or she makes. It is also required that removal from office should be in accordance with a procedure which guarantees fairness and the independence of the decision-makers from government.’

Judges:

Lady Hale, Lord Reed, Lord Kerr, Lord Wilson, Lord Sumption

Citations:

[2018] UKPC 23

Links:

Bailii, Bailii Summary

Jurisdiction:

England and Wales

Constitutional, Legal Professions

Updated: 18 May 2022; Ref: scu.621124

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:

CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Lists of cited by and citing cases may be incomplete.

Commonwealth, Constitutional, Defamation, Media

Updated: 18 May 2022; Ref: scu.427747

– And The Lord Moone: 1658

For a supersedeas for a peer of the realm. Supersedeas.
My Lord Moone had a sute commenced against him in this Court, and tbereupon he moves by his councel upon an affidavit that he was a peer of the realm, and a Lord of the Parliament, and therefore ought not to be sued, and prayes for a supersedeas to stay the proceedings. Roll lustice, Plead your privilege, for upon an affidavit we will make no rule, or else acquaint the other party that he is a peer of the realm, and it is like he will forbear to proceed thereupon. But you ought not to troubl the Court with such notions as these.

Citations:

[1658] EngR 18, (1658) Sty 118, (1658) 82 ER 576 (B)

Links:

Commonlii

Litigation Practice, Constitutional

Updated: 18 May 2022; Ref: scu.410809

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:

CitedBancoult, 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

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:

CitedRegina 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

Rex v Lord Abingdon: 1794

A Member of Parliament chose to have his earlier speech in the House re-published ‘under his authority and sanction . . and at his expense’.
Held: Statements made outside Parliament are not protected by absolute privilege even if they simply repeat what was said therein.

Citations:

(1794) 1 Esp 226, (1794) 170 ER 337

Cited by:

CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 16 May 2022; Ref: scu.199241

Rex v Creevey Esq MP: 1813

A statement made out of Parliament is not to be protected by its absolute privilege even if what is said simply repeats what was said inside the House.
A member of the House of Commons may be convicted upon an indictment for a libel in publishing in a newspaper the report of a speech delivered by him in that House, if it contain libellous matter, although the publication be a correct report of such speech, and be made in consequence of an incorrect publication having appeared in that and other newspapers.

Citations:

(1813) 1 M and S 273, (1813) 105 ER 102, [1813] EngR 254

Links:

Commonlii

Cited by:

CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .
CitedMakudi v Baron Triesman of Tottenham CA 26-Feb-2014
Appeal against strike out of claims for defamation and malicious falsehood. The defendant had given evidence to the Culture Media and Sport Select Committee of the House of Commons with material highly critical of the claimant, a member of FIFA’s . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 16 May 2022; Ref: scu.199242

Riel v The Queen: PC 1885

A power given to a Parliament to ‘make laws for the peace, order and good government’ is ‘apt to authorize the utmost discretion of enactment for the attainment of the objects pointed to’

Citations:

(1885) 10 App Cas 675

Cited by:

CitedHaroon Khan v The State PC 20-Nov-2003
PC (Trinidad and Tobago) The appellant had been convicted of felony murder. He was one of four engaged in a robbery, where the victim received fatal injuries.
Held: The felony murder rule had been . .
CitedBancoult, 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.

Constitutional

Updated: 16 May 2022; Ref: scu.188593

Rothermere v Times Newspapers Ltd: CA 1973

The court considered whether to order a defamation trial to be heard by judge alone, rather than before a jury.
Held: The criterion that the trial requires a prolonged examination of documents is basic and must be strictly satisfied, and it is not enough merely to show that the trial will be long and complicated.
Lord Denning MR said: ‘Looking back on our history, I hold that, if a newspaper has criticised in its columns the great and the powerful on a matter of large public interest — and is then charged with libel — then its guilt or innocence should be tried with a jury, if the newspaper asks for it, even though it requires the prolonged examination of documents.’ and ‘the right given by our constitution to a Defendant who is charged with libel, either in criminal or civil proceedings. Every Defendant has a constitutional right to have his guilt or innocence determined by a jury. This right is of the highest importance, especially when the Defendant has ventured to criticise the government of the day, or those who hold authority or power in the state’.

Judges:

Lord Denning MR

Citations:

[1973] 1 WLR 448

Statutes:

Administration of Justice (Miscellaneous Provisions) Act 1933

Cited by:

CitedRight Hon Aitken MP and Preston; Pallister and Guardian Newspapers Ltd CA 15-May-1997
The defendants appealed against an order that a defamation trial should proced before a judge alone.
Held: ‘Where the parties, or one of them, is a public figure, or there are matters of national interest in question, this would suggest the . .
CitedJoyce v Sengupta and Another CA 31-Jul-1992
The defendant published an article accusing the plaintiff of theft. Not having funds to launch a claim in libel, the plaintiff obtained legal aid to claim in malicious falsehood. She now appealed against a strike out of that claim.
Held: A . .
CitedCook v Telegraph Media Group Ltd QBD 29-Mar-2011
The claimant, an MP, complained in defamation of the defendant’s description of his rejected expenses claim regarding an assistant’s charitable donation. The paper pleaded a Reynolds defence. The claimant said that when published the defendant knew . .
Lists of cited by and citing cases may be incomplete.

Defamation, Litigation Practice, Constitutional

Updated: 16 May 2022; Ref: scu.184760

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:

CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
CitedA 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 . .
CitedA 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 . .
CitedYew 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

Jackson v Stevenson: 1897

At common law, it is contrary to constitutional principle and illegal to search someone to establish whether there are grounds for an arrest

Citations:

(1897) 2 Adam 255

Jurisdiction:

England and Wales

Cited by:

CitedRoberts, Regina (on the application of) v Commissioner of Police of the Metropolis and another SC 17-Dec-2015
The Court considered the validity of suspicionless stop and search activities under s 60 of the 1994 Act, by police officers.
Held: The claimant’s appeal failed. The safeguards attending the use of the s 60 power, and in particular the . .
Lists of cited by and citing cases may be incomplete.

Police, Constitutional

Updated: 16 May 2022; Ref: scu.605177

Newcastle Breweries Ltd v The King: 1921

The court was asked to consider the validity of regulation 2B of the Realm Regulations made under section 1 of the 1914 Act.
Held: The presumption against a statute authorising the expropriation of a subject’s property without payment is even stronger in the context of delegated legislation. Absent a clear provision conferring power to make retrospective delegated legislation, the assumption of such a power offends the legality principle.
Salter J said: ‘I do not think that a regulation which takes away the subjects right to a judicial decision , or transfer the adjudication of his claim without his content, from a court of law to named arbitrators, could fairly be held to be a regulation fro securing the public safety and the defence of the realm, or a regulation designed to prevent the successful prosecution of the war being endangered within the meaning of these words in the defence of the realm consolidation Act, 1914’.

Judges:

Salter J

Citations:

[1920] KB 854

Statutes:

Defence of the Realm Consolidation Act 1914 1

Cited by:

CitedSecretary of State for Energy and Climate Change v Friends of The Earth and Others CA 25-Jan-2012
The Secretary had issued a consultation on the payments for solar energy feed-in-tarriffs, with a view to the new rate being brought in in April 2012. As the consultation ended, he proposed to reduce rates from December 2011. He now appealed against . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 15 May 2022; Ref: scu.450491

The Attorney General For The Crown Sir William Follett For Mr Le Strange Styleman Le Strange Sir Harris Nicolas For Sir Jacob Astley: 13 May 1841

A summons to Parliament, and a sitting under it, is evidence of a title to a peerage descending to the heirs of the body including females; so likewise is it evidence of a similar title, where there have been several summonses, both prior and subsequent to a sitting in parliament and a sitting in parliament, though no sitting under a summons, has been proved, proof being adduced that during the period of that sitting there were no writs of summons

Citations:

[1841] EngR 667, (1841) West 621, (1841) 9 ER 621

Links:

Commonlii

Jurisdiction:

England and Wales

Constitutional

Updated: 15 May 2022; Ref: scu.308845

Regina v Lord Chancellor, ex parte Lightfoot: CA 18 Aug 1999

A debtor does not have a right, under the constitution to participate in any scheme for the relief of debt. Accordingly it was not ultra vires for the Lord Chancellor to provide no discretion on the payment of court fees by an intending applicant for bankruptcy. Such fees were used toward the administration of the applicant’s affairs.

Citations:

Times 18-Aug-1999, Gazette 11-Aug-1999

Statutes:

Insolvency Fees Order 1986 (1986 No 2030) 8(1) 9(b)

Jurisdiction:

England and Wales

Insolvency, Constitutional

Updated: 11 May 2022; Ref: scu.85375

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:

CitedIn 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

The Fagernes: CA 1927

Atkin LJ considered whether the islands were a territory of the Crown: ‘What is the territory of the Crown is a matter of which the Court takes judicial notice. The Court has, therefore, to inform itself from the best material available; and on such a matter it may be its duty to obtain its information from the appropriate department of Government. Any definite statement from the proper representative of the Crown as to the territory of the Crown must be treated as conclusive.’

Judges:

Atkin LJ

Citations:

[1927] P 311

Cited by:

CitedChristian and others v The Queen PC 30-Oct-2006
(The Pitcairn Islands) The defendants appealed convictions for assorted sexual offences against underage girls. They denied that the laws under which they were convicted had applied to the Pitcairn Islands.
Held: The appeals against conviction . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 10 May 2022; Ref: scu.245760

Wright v Hale: 23 Nov 1860

When considering the retrospective effects of an Act, ‘where the enactment deals with procedure only, unless the contrary is expressed, the enactment applies to all actions, whether commenced before or after the passing of the Act.’

Judges:

Wilde B

Citations:

(1860) 6 H and N 227, [1860] EngR 1191, (1860) 6 H and N 227, (1860) 158 ER 94

Links:

Commonlii

Jurisdiction:

England and Wales

Cited by:

CitedWilson v Secretary of State for Trade and Industry; Wilson v First County Trust Ltd (No 2) HL 10-Jul-2003
The respondent appealed against a finding that the provision which made a loan agreement completely invalid for lack of compliance with the 1974 Act was itself invalid under the Human Rights Act since it deprived the respondent lender of its . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Litigation Practice

Updated: 06 May 2022; Ref: scu.184441

Pillai v Comptroller of Income Tax: PC 1970

The role of the Privy Council is purely appellate, and the court will not rule on points of law which had not been raised in the court from which the appeal lay.

Citations:

[1970] AC 1124

Jurisdiction:

England and Wales

Cited by:

CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.182906

Regina v Big M Drug Mart: 1985

Supreme Court of Canada – A company was charged with unlawfully carrying on the sale of goods on a Sunday contrary to the Lord’s Day Act. It challenged the legislation. The freedom affected was that of persons prevented by the Act from working on a Sunday.
Held: This was a relevant restriction on the company.
Dickson J said: ‘Freedom can primarily be characterized by the absence of coercion or constraint. If a person is compelled by the state or the will of another to a course of action or inaction which he would not otherwise have chosen, he is not acting of his own volition and he cannot be said to be truly free. One of the major purposes of the Charter is to protect, within reason, from compulsion or restraint. Coercion includes not only such blatant forms of compulsion as direct commands to act or refrain from acting on pain of sanction, coercion includes indirect forms of control which determine or limit alternative courses of conduct available to others.’

Judges:

Dickson J

Citations:

(1985) 1 RCS 295

Jurisdiction:

Canada

Cited by:

CitedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.582139

Scott v Regina: 2004

Participation in religious prayers were required of soldiers during routine parades at a Canadian Forces base. The soldiers were preceded by an order to remove headdress. The soldier had no religious convictions, had (after having previously raised with his superior his concerns about being made to participate in a prayer service in which he did not believe) refused to remove his headdress (but had evidently continued to stand on parade) and was being charged simply with that refusal.
Held: The order conflicted with paragraph 2(a) of the Charter: ‘The order that was given . . was to show ‘respect’ for what was being done and not mere passive toleration. That is to say, it was designed to constrain him to make a public gesture of approval for a religious ceremony in which he did not believe. .
The fact that the practice of pronouncing prayers at parades and requiring some form of public assent thereto has been hallowed by a tradition of many years in the military as well as other circles cannot justify a breach of the appellant’s Charter rights. We emphasize that what was required of the appellant was active participation in the religious ceremony with which he disagreed. The question of enforced passive participation by mere presence is an entirely different issue and one that we do not reach today.’

Citations:

[2004] 123 CRR (2d) 371

Jurisdiction:

Canada

Cited by:

ApprovedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Armed Forces

Updated: 06 May 2022; Ref: scu.582140

Banton v Alcoa Minerals of Jamaica Inc: 1971

Citations:

(1971) 17 WIR 275

Jurisdiction:

Commonwealth

Cited by:

CitedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.582137

Hope v New Guyana Ltd: 1979

Citations:

(1979) 26 WIR 233

Jurisdiction:

Commonwealth

Cited by:

CitedCommodore Royal Bahamas Defence Force and Others v Laramore PC 8-May-2017
Soldier’s right not to attend religious service
(The Bahamas) Parties challenged the removal of the right of service members to be excused attendance of the religious elements of force parades.
Held: The Muslim petty officer had been hindered in the exercise of his constitutional right to . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 06 May 2022; Ref: scu.582138

Dodd v Dodd: 1906

Sir Gorell Barnes P set out the task of a judge saying that it is our task is jus dicere non jus dare – to state the law, not to make the law, but decried the state of family law: ‘That the present state of the English law of divorce and separation is not satisfactory can hardly be doubted. The law is full of inconsistencies, anomalies, and inequalities amounting almost to absurdities; and it does not produce desirable results in certain important respects.’
‘The order does not state upon its face the finding of fact upon which the order was made – in other words, it does not state on the face of it that the respondent had been guilty of wilful neglect to provide reasonable maintenance for the petitioner and her child, and that by such neglect he had caused her to leave and live separately and apart from him. It might be said that I could therefore ignore the order and treat it as if it had never been applied for and made, on the general principle that a Magistrate’s order ought to state the finding of fact essential to the exercise of the jurisdiction: see the observations in the case of Brown v. Brown (1898, 62 JP 711); but it is necessary to observe, first, that this point is highly technical, and, on an appeal to this Division, the defect could have been corrected, that the petitioner acted upon the order and endeavoured to enforce it, and that it was undoubtedly treated by both parties as being an effective order, and further, that in the case of Brown v. Brown the effect of the provisions of the Summary Jurisdiction Acts and of the forms which are provided for use under those Acts was not fully considered. According to s. 8 of the Act of 1895 all applications under it are to be made in accordance with the Summary Jurisdiction Acts, and, without going through the details of those Acts as they at present stand, it is sufficient to observe that the Summary Jurisdiction Rules J 886, r. 31, provided that the forms in the schedule thereto, or forms to the like effect, might be used with such variations as circumstances might require; and the forms of orders in that schedule omit to state whether the complaint is found and adjudged to be true: so that although in strictness the order ought to state the findings of fact essential to jurisdiction, having regard to the provisions of the Act and Rules to which I have just referred, I am not prepared to hold, without further argument, that this order ought to be treated as bad on the face of it. I might point out, however, that it is desirable that the practice adopted, I believe, by the Magistrates in London of stating that the cause of complaint is found to be true is desirable in order to avoid any such difficulty as arises in the present case upon this point . . ‘

Judges:

Sir Gorell Barnes P

Citations:

[1906] P 189

Jurisdiction:

England and Wales

Cited by:

CitedOwens v Owens CA 24-Mar-2017
Unreasonable Behaviour must reach criteria
W appealed against the judge’s refusal to grant a decree of divorce. He found that the marriage had broken down irretrievably, but did not find that H had behaved iin such a way that she could not reasonably be expected to live with H.
Held: . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Family

Updated: 04 May 2022; Ref: scu.581124

Resolution to amend the Constitution: 28 Sep 1981

Supreme Court of Canada
The References in question were prompted by the opposition of eight provinces to a proposed Resolution, published on October 2, 1980. The proposed Resolution contained an address to be presented to Her Majesty The Queen in right of the United Kingdom and a statute, to which was appended another statute providing for the patriation of the B.N.A. Act, with an amending procedure, and a Charter of Rights and Freedoms. The proposed Resolution carried the approval of only two provinces, Ontario and New Brunswick. The opposition of the others, save Saskatchewan, was based on their assertion that both conventionally and legally the consent of all the provinces was required for the address to be forwarded to Her Majesty with the appended statutes. The proposed Resolution was adopted by the House of Commons and by the Senate on April 23 and 24, 1981.
Questions 1, 2 and 3 of the Manitoba and Newfoundland References submitted for answer and this Court’s answers were as follows:
Question 1 – If the amendments to the Constitution of Canada sought in the ‘Proposed Resolution for a Joint Address to Her Majesty the Queen respecting the Constitution of Canada’, or any of them, were enacted, would federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments be affected and if so, in what respect or respects?
Answer – Yes.
Question 2 – Is it a constitutional convention that the House of Commons and Senate of Canada will not request Her Majesty the Queen to lay before the Parliament of the United Kingdom of Great Britain and Northern Ireland a measure to amend the Constitution of Canada affecting federal-provincial relationships or the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments without first obtaining the agreement of the provinces?
Answer – Yes.
The Chief Justice and Estey and McIntyre JJ. dissenting would answer ‘no’.
Question 3 – Is the agreement of the provinces of Canada constitutionally required for amendment to the Constitution of Canada where such amendment affects federal-provincial relationships or alters the powers, rights or privileges granted or secured by the Constitution of Canada to the provinces, their legislatures or governments?
Answer -For the reasons stated in answer to Question 2, as a matter of constitutional convention, ‘yes’. The Chief Justice and Estey and McIntyre JJ. dissenting would answer ‘no’.
-As a matter of law, ‘no’. Martland and Ritchie JJ. dissenting would answer ‘yes’.
The Question 4 of the Newfoundland Reference submitted for answer and this Court’s answer was as follows:
Question 4 – If Part V of the proposed resolution referred to in question 1 is enacted and proclaimed into force could
(a) the Terms of Union, including terms 2 and 17 thereof contained in the Schedule to the British North America Act, 1949 (12-13 George VI, c. 22 (UK)), or
(b) section 3 of the British North America Act, 1871 (34-35 Victoria, c. 28 (UK))
be amended directly or indirectly pursuant to Part V without the consent of the Government, Legislature or a majority of the people of the Province of Newfoundland voting in a referendum held pursuant to Part V?
Answer – As expressed in the reasons of the Newfoundland Court of Appeal, subject to the correction made in the reasons of this Court.
Questions A and B of the Quebec Reference submitted for answer and this Court’s answers were as follows:
Question A – If the Canada Act and the Constitution Act, 1981 should come into force and if they should be valid in all respects in Canada would they affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i) Yes.
(ii) Yes.
Question B-Does the Canadian Constitution empower, whether by statute, convention or otherwise, the Senate and the House of Commons of Canada to cause the Canadian Constitution to be amended without the consent of the provinces and in spite of the objection of several of them, in such a manner as to affect:
(i) the legislative competence of the provincial legislatures in virtue of the Canadian Constitution?
(ii) the status or role of the provincial legislatures or governments within the Canadian Federation?
Answers -(i)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer ‘no’.
(ii)
(a) by statute, no;
(b) by convention, no.
The Chief Justice and Estey and McIntyre JJ. would answer that there is no precluding convention.
(c) as a matter of law, yes.
Martland and Ritchie JJ. dissenting would answer ‘no’.
Chief Justice (Laskin) and Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ stated: ‘The very nature of a convention, as political in inception and as depending on a consistent course of political recognition by those for whose benefit and to whose detriment (if any) the convention developed over a considerable period of time is inconsistent with its legal enforcement.’
Chief Justice and Estey and MacIntyre JJ (dissenting) considered the status of conventions: ‘[A] fundamental difference between the legal, that is the statutory and common law rules of the constitution, and the conventional rules is that, while a breach of the legal rules, whether of statutory or common law nature, has a legal consequence in that it will be restrained by the courts, no such sanction exists for breach or non-observance of the conventional rules. The observance of constitutional conventions depends upon the acceptance of the obligation of conformance by the actors deemed to be bound thereby. When this consideration is insufficient to compel observance no court may enforce the convention by legal action. The sanction for non-observance of a convention is political in that disregard of a convention may lead to political defeat, to loss of office, or to other political consequences, but will not engage the attention of the courts which are limited to matters of law alone. Courts, however, may recognise the existence of conventions . . ‘
Martland, Ritchie, Dickson, Beetz, Chouinard and Lamer JJ agreed: ‘It is because the sanctions of convention rest with institutions of government other than courts . . or with public opinion and ultimately, with the electorate, that it is generally said that they are political.’

Judges:

Laskin C. and Martland, Ritchie, Dickson, Beetz, Estey, McIntyre, Chouinard and Lamer JJ

Citations:

[1981] 1 SCR 753, 34 Nfld and PEIR 1, 125 DLR (3d) 1, 1981 CanLII 25 (SCC), [1981] 6 WWR 1, 39 NR 1, [1981] SCJ No 58 (QL), 11 Man R (2d) 1, 1 CRR 59, 95 APR 1

Links:

Canlii

Jurisdiction:

Canada

Cited by:

CitedMiller and Another, Regina (on The Application of) v Secretary of State for Exiting The European Union SC 24-Jan-2017
Parliament’s Approval if statute rights affected
In a referendum, the people had voted to leave the European Union. That would require a notice to the Union under Article 50 TEU. The Secretary of State appealed against an order requiring Parliamentary approval before issuing the notice, he saying . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.575307

Lee v Bude and Torrington Junction Railway Co: 1871

It was alleged that Parliament had been induced to pass an Act by fraudulent recitals.
Held: Willes J said: ‘Are we to act as regents over what is done by parliament with the consent of the Queen, lords and commons? I deny that any such authority exists. If an Act of Parliament has been obtained improperly, it is for the legislature to correct it by repealing it: but, so long as it exists as law. the Courts are bound to obey it. The proceedings here are judicial, not autocratic, which they would be if we could make laws instead of administering them.’
When a statute gives a judge a discretion, what is meant is a judicial discretion, regulated according to the known rules of law, and not the mere whim or caprice of the person to whom it is given on the assumption that he is discreet

Judges:

Willes J

Citations:

(1871) LR 6 CP 576

Jurisdiction:

England and Wales

Cited by:

CitedPickin v British Railways Board HL 30-Jan-1974
Courts Not to Investigate Parliament’s Actions
It was alleged that the respondent had misled Parliament to secure the passing of a private Act. The claimant said that the land taken from him under the Act was no longer required, and that he should be entitled to have it returned.
Held: . .
CitedHS2 Action Alliance Ltd, Regina (on The Application of) v The Secretary of State for Transport and Another SC 22-Jan-2014
The government planned to promote a large scale rail development (HS2), announcing this in a command paper. The main issues, in summary, were, first, whether it should have been preceded by strategic environmental assessment, under the relevant . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.575314

Fitzgerald v Muldoon: 1976

A Labour government introduced a contributory superannuation scheme. Statute made contribution by employer and employee compulsory. The leader of the National opposition, Muldoon, promised to abolish the scheme immediately on becoming government. National won a landslide victory in November 1975. But the Prime Minister, Muldoon, had no desire to reconvene Parliament until June. Two weeks later he issued a press statement. It said that the compulsory requirement to contribute ‘will cease as from today’.2 The junior public servant, Fitzgerald, issued proceedings challenging the Prime Ministerial statement.

Citations:

[1976] 2 NZLR 5615

Jurisdiction:

New Zealand

Cited by:

CitedMiller and Dos Santos v The Secretary of State for Exiting the European Union and Others QBD 13-Nov-2016
Article 50 Notice Requires Parliament’s Authority
The applicant challenged a decision by the respondent that he could use Crown prerogative powers to issue a notice under section 50 TUE to initiate the United Kingdom leaving the EU following the referendum under the 2015 Act.
Held: Once the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 04 May 2022; Ref: scu.570777

London County Council v Attorney General: 1901

Lord MacNaghten said: ‘Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else.’
Lord Macnaghten said of a relator action: ‘The initiation of the litigation, and the determination of the question whether it is a proper case for the Attorney-General to proceed in, is a matter entirely beyond the jurisdiction of this or any other court. It is a question which the law of this country has made to reside exclusively in the Attorney-General’

Judges:

Lord MacNaghten

Citations:

[1901] AC 26

Jurisdiction:

England and Wales

Cited by:

CitedScottish Widows Plc v Revenue and Customs SC 6-Jul-2011
The taxpayer insurance company had transferred sums from accounts designated as Capital Reserves. The Revenue said that these were properly part of the profit and loss accounts for the respective tax years, and chargeable receipts.
Held: The . .
CitedGouriet 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 . .
Lists of cited by and citing cases may be incomplete.

Income Tax, Constitutional

Updated: 04 May 2022; Ref: scu.441626

The Case of Swans: 1572

A prescription to have all wild swans, which are ferae naturae and not marked, building their nests, breeding, and frequenting within a particular creek, is not good.
All white swans not marked, having gained their natural liberty, and swimming in an open and common river, may be seised to the King’s use by his prerogative.
A swan is a Royal fowl, and whales and sturgeons are Royal fish.
Every one who hath swans within his private waters hath a property in them.
A man may prescribe to have a game of swans within his manor, and may prescribe that his mans may swim within the manor of another.
A swan may be an estray.
Cygnets belong equally to the owner of the cock and the owner of the hen, and shall be divided betwixt them.

Citations:

[1572] EngR 403, (1572-1616) 7 Co Rep 15, (1572) 77 ER 435

Links:

Commonlii

Jurisdiction:

England and Wales

Animals, Constitutional

Updated: 02 May 2022; Ref: scu.432369

Attorney-General v The Ironmongers’ Company Betton’s Charity: 14 Feb 1840

Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the remaining one-fourth towards necessitated decayed freemen of the company. There were no such British slaves to redeem, and a reference was made to the Master to approve of a scheme for the application of the fund thus unapplied, having regard to all the charitable bequests in the will. Held, that the application of the fund to the education of the British emancipated apprenticed negroes was iiot a cy-pres application ; secondly, that the gift to the freemen of the company was a charitable bequest ; and, thirdly, there being no direct objects to which the income could be applied, regard being had to the bequest touching British captives, that the application of the fund to the second and third purposes was as near as could be to the intention of the testator, having regard to all the charitable bequests in the will.
Lord Langdale MR said that: ‘ He did not recognise the relator as distinct from the Attorney-General. That the suit was the suit of the Attorney-General, though at the relation of another person upon whom he relied and who was answerable for costs; and that he could only recognise the counsel for the relator as the counsel for the Attorney-General, and could hear them only by his permission ; that the suit was so entirely under the control of the Attorney-General that he might desire the Court to
‘ dismiss the information, and that if he stated that he did not sanction any proceeding, it would be instantly stopped ‘.

Judges:

Lord Langdale MR

Citations:

[1840] EngR 425, (1840) 2 Beav 313, (1840) 48 ER 1201

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoAttorney-General v The Ironmongers’ Company 18-Nov-1834
A testator gave the residue of his estate to trustees, positively forbidding them to diminish the capital thereof, or that the interest and profit arising be applied to any other use or uses than thereinafter directed ; and he proceeded to direct . .
See AlsoAttorney-General v Ironmongers’ Company 3-Jun-1837
Scheme for application of a charity fund left for loans to young freemen of a company and of the interest. . .

Cited by:

See AlsoThe Attorney-General v The Ironmongers’ Company 23-Jan-1841
Under a, reference to approve a scheme for the application of charity funds, the Master has no authority to allow, still less to invite, any person to intervene in the inquiry, who is not a party to the cause. If any such person is desirous of . .
CitedGouriet 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 . .
CitedGouriet 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 . .
Lists of cited by and citing cases may be incomplete.

Charity, Constitutional

Updated: 02 May 2022; Ref: scu.309851

The Attorney-General v The Ironmongers’ Company: 23 Jan 1841

Under a, reference to approve a scheme for the application of charity funds, the Master has no authority to allow, still less to invite, any person to intervene in the inquiry, who is not a party to the cause. If any such person is desirous of proposing
a scheme of his own, his proper and only course is to apply to the Court for leave so to do.
In an information, the Attorney-General and not the relator, is the party prosecuting the cause : and, therefore, the Court will not allow counsel for the relator to be heard in any other character than as counsel for the Attorney-General.

Citations:

[1841] EngR 283, (1840-1841) Cr and Ph 208, (1841) 41 ER 469

Links:

Commonlii

Jurisdiction:

England and Wales

Citing:

See AlsoAttorney-General v The Ironmongers’ Company 18-Nov-1834
A testator gave the residue of his estate to trustees, positively forbidding them to diminish the capital thereof, or that the interest and profit arising be applied to any other use or uses than thereinafter directed ; and he proceeded to direct . .
See AlsoAttorney-General v Ironmongers’ Company 3-Jun-1837
Scheme for application of a charity fund left for loans to young freemen of a company and of the interest. . .
See AlsoAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 02 May 2022; Ref: scu.308461

Attorney General of Australia v The Queen and the Boilermakers’ Society of Australia; Kirby v The Queen and Boilermakers’ Society of Australia: PC 1957

When looking at a new court having a different name, the courts must ask the nature of the jurisdiction exercised, and test the method of appointment of judges for conformity with the constitution. It would be a travesty of the constitution if parliament established new bodies exercising similar functions but with different names and less protection of the independence of the officers carrying out judicial type activities.

Judges:

Viscount Simonds

Citations:

[1957] 2 All ER 45, [1957] AC 288, [1957] 2 WLR 607

Jurisdiction:

Australia

Cited by:

CitedHinds and other v The Queen; Director of Public Prosecutions v Jackson, attorney General of Jamaica (Intervenor) PC 1-Dec-1975
The Gun Court Act 1974 of Jamaica established special courts at different levels to deal with varieties of crimes involving guns. There was provision for hearings to be held in camera. Certain offences carried mandatory life sentences reviewable . .
CitedIndependent Jamaica Council for Human Rights (1998) Ltd and others v Marshall-Burnett and Another PC 3-Feb-2005
(Jamaica) A bill was presented to the Jamaican parliament to transfer the appellate jurisdiction from the Board of the Privy Council to the Caribbean Court of Justice.
Held: Whilst there was a duty to recognise and respect alternate courts, . .
Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 30 April 2022; Ref: scu.211408

Regina v Commissioners of Customs and Excise, ex Parte Kay and Co; Regina v Same, ex Parte Similar: CA 10 Dec 1996

The commissioners had no power to impose time limits on retrospective refund claims.

Judges:

Keene J

Citations:

Times 10-Dec-1996, [1996] STC 1500

Statutes:

Bill of Rights 1688, Value Added Tax Act 1994 80

Jurisdiction:

England and Wales

Citing:

Appeal fromRegina v Commissioners of Customs and Excise ex parte Kay and Co, Association of Optometrists, Colaingrove Ltd, Greenlee Group Plc, Rayner and Keeler, National Provident Institution, Allied Domecq Plc, Wardens of Commonality etc Admn 19-Nov-1996
. .

Cited by:

CitedDFS Furniture Company Plc v Commissioners of Customs and Excise CA 16-Mar-2004
The taxpayers said that the Commissioners’ assessment to VAT was out of time, and appealed a finding that it was not. They said that time should run from the point at which the Commissioners knew the facts upon which the assessment was based. The . .
Lists of cited by and citing cases may be incomplete.

VAT, Constitutional

Updated: 28 April 2022; Ref: scu.86417

Felton v Mulligan: 2 Sep 1971

(Australia) The court was concerned to interpret the phrase ‘arising under any laws made by the Parliament’
Austlii Constitutional Law (Cth) – Privy Council – Appeal from State Supreme Court invested with federal jurisdiction – Matter arising under law made by Common- Commonwealth Parliament – Raised by defence – Whether court exercising concurrent State and federal jurisdiction – The Constitution (63 and 64 Vict. c. 12), s. 76 (ii.) – Judiciary Act 1901-1968 (Cth), ss. 39, 40.
Courts – Ouster of jurisdiction – Public policy – Proceedings for divorce – Agreement between husband and wife concerning maintenance – Whether invalid – Whether invalidity derived from common law or statute – Matrimonial Causes Act 1959-1966 (Cth).
Matrimonial Causes – Agreement between husband and wife concerning maintenance – Whether enforceable – Whether attempt to oust jurisdiction of court – Matrimonial Causes Act 1959-1966 (Cth), ss. 5, 8, 23 (2) (3), 87 (1) (k).

Judges:

Justice Windeyer

Citations:

(1971) 124 CLR 367, [1971] HCA 39

Links:

Austlii

Jurisdiction:

Australia

Cited by:

CitedCadbury-Schweppes Pty Ltd And Others v Pub Squash Co Pty Ltd PC 13-Oct-1980
(New South Wales) The plaintiff had launched and advertised a soft drink. A year later, the defendant launched a similar product using similar names, styles and advertising, but then registered trade marks. The plaintiff sought damages, and for the . .
Lists of cited by and citing cases may be incomplete.

Wills and Probate, Constitutional

Updated: 27 April 2022; Ref: scu.180901

Selimovic v Parliament: ECFI 19 Sep 2018

(Judgment) Institutional law – European Parliament – Moral harassment – Decision of the President of Parliament imposing a reprimand against a Member of the European Parliament – Rule 166 of Parliament’s Rules of Procedure – Right to good administration – Right of access to the file – Obligation to state reasons – Legal certainty – Misuse of powers – Non-contractual liability

Citations:

T-61/17, [2018] EUECJ T-61/17

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 27 April 2022; Ref: scu.622617

Kinross: HL 4 Jul 1905

(Committee for Privileges) A Peer may be heard as counsel on an appeal at the bar of the House of Lords, but this does not include his appearing before Committees of the House, or before the House when sitting under the presidency of the Lord High Steward on a criminal case.

Citations:

[1905] UKHL 152, 43 SLR 152

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional

Updated: 26 April 2022; Ref: scu.621183

Gulf Centre for Human Rights, Regina (on The Application of) v The Prime Minister and Another: CA 1 Aug 2018

Challenge to decision to change the Ministerial Code

Judges:

Lord Burnett of Maldon LCJ, Sir Terence Etherton MR and Lord Justice Hamblen

Citations:

[2018] EWCA Civ 1855

Links:

Bailii

Jurisdiction:

England and Wales

Constitutional, Human Rights

Updated: 25 April 2022; Ref: scu.620604

Warsama and Another v The Foreign and Commonwealth Office and Others (Bill of Rights 1689 – Constitution – Parliament – Separation of Powers – Child Abuse): QBD 15 Jun 2018

Bill of Rights 1689 – Constitution – Parliament – Parliamentary Privilege – Separation of Powers – Immunity – Jurisdiction of Court – Human Rights – Public Authority – Child Abuse – Inquiry Report – Motion for an Unopposed Return – ECHR Art 8 – ECHR Art 6 – Damages – St Helena and Ascension Island – Crown in Parliament – Non-Statutory Inquiry – Executive – Judicial Review – Delay – Professional Reputation – Salmon process – Maxwellisation
A report had been prepared into allegations of child sex abuse on St Helena. The claimant social workers had been severely criticised in the report and now said that the report had abused their own human rights in its approach and lack of independence. The defendant relied on parliamentary privilege, the report having been published under a ‘Motion for an Unopposed return’.

Citations:

[2018] EWHC 1461 (QB)

Links:

Bailii

Statutes:

Bill of Rights 1689, European Convention on Human Rights 6 8, Parliamentary Papers Act 1840

Jurisdiction:

England and Wales

Constitutional, Human Rights

Updated: 25 April 2022; Ref: scu.620076

The Gibraltar Betting and Gaming Association v Revenue and Customs Commissioners and another (Government of Gibraltar intervening): ECJ 13 Jun 2017

ECJ Status of Gibraltar – Freedom To Provide Services – Purely Internal Situation – Inadmissibility : Judgment

Citations:

[2017] WLR(D) 166, [2018] 1 CMLR 362, ECLI:EU:C:2017:449, [2017] EUECJ C-591/15, [2017] 4 WLR 67, [2017] 4 WLR 167

Links:

Bailii, WLRD

Jurisdiction:

European

Citing:

CitedDepartment of Health and Social Security v Barr and Montrose Holdings (Judgment) ECJ 3-Jul-1991
Europa It follows from Article 1(3) of the Treaty of Accession 1972 in conjunction with Article 158 of the Act of Accession that the jurisdiction in preliminary ruling proceedings conferred on the Court by . .

Cited by:

CitedRoutier and Another v Revenue and Customs SC 16-Oct-2019
A Jersey Charity created under a will of a Jersey resident was transfer to the UK, and reregistered with the UK Charity Commission. The Revenue sought to apply Inheritance Tax.
Held: Jersey was to be considered a third country for the purpose . .
Lists of cited by and citing cases may be incomplete.

Licensing, Constitutional, Customs and Excise

Updated: 21 April 2022; Ref: scu.588272

Steele, Ford, and Newton v Crown Prosecution Service and Another etc (Consolidated Appeals) (No 2): HL 28 May 1993

The Court of Appeal Civil Division has no power to make an award of costs out of central funds. The court referred to: ‘the special constitutional convention which jealously safeguards the exclusive control exercised by Parliament over the levying and the expenditure of the public revenue’.
Bridge alluded to the position where a party could not have recourse on costs when he had to come to court to seek relief by way of judicial review due to a misjudgement by an inferior court or tribunal. It is the position under the common law that there are occasions where a successful party may not be able to recover the costs incurred by him in correcting an error of an inferior tribunal.

Judges:

Lord Bridge

Citations:

Independent 10-Jun-1993, Times 28-May-1993, [1994] 1 AC 22, [1993] 2 All ER 769, [1993] 2 WLR 934

Jurisdiction:

England and Wales

Criminal Practice, Costs, Constitutional

Updated: 10 April 2022; Ref: scu.89532

Regina v Secretary of State for Trade and Industry ex parte Orange Personal Communications Ltd and Another: Admn 25 Oct 2000

Once rights by way of licences had been granted to a party by virtue of a statute, an amendment to those licences required the Secretary to be explicit with Parliament when altering the licences. The Act provided clear rules for making amendments to licences. The Secretary purported to amend the licences to comply with a European Directive, but the new regulations did not specifically disapply the regime for amending the licences. He should have made it clear in the statutory instrument that the protections were being removed. The regulations made under section 2(2) of the 1972 Act which, if valid, took away valuable rights of Orange which they had enjoyed under the Telecommunications Act 1984, were ultra vires, on the ground that the regulations had failed explicitly to state that rights enjoyed under primary legislation were being taken away.

Citations:

Times 15-Nov-2000, Gazette 23-Nov-2000

Statutes:

Telecommunications Act 1984 12 13 14 15, Telecommunications (Licence Modification) (Standard Schedules) Regulations 1999 (1999 no 2540), European Communities Act 1972 2(2)

Citing:

DistinguishedRegina v Secretary of State for Trade and Industry ex parte Unison 1996
The 1978 Directive required consultation in the case of collective redundancies. Acts had incorrectly incorporated this requirement into English law. The error was corrected in the 1995 Regulations.
Held: Anything is ‘related to’ a Community . .

Cited by:

CitedOakley Inc v Animal Ltd and others PatC 17-Feb-2005
A design for sunglasses was challenged for prior publication. However the law in England differed from that apparently imposed from Europe as to the existence of a 12 month period of grace before applying for registration.
Held: Instruments . .
Lists of cited by and citing cases may be incomplete.

Administrative, Media, Licensing, Constitutional

Updated: 10 April 2022; Ref: scu.88661

Regina v Greater Belfast Coroner, ex parte Northern Ireland Human Rights Commission: CANI 11 May 2001

The Commission was a creation of statute, and had not been given power to intervene in judicial proceedings. The coroner was investigating deaths at Omagh from a terrorist bombing, and the Commission sought to intervene. The Act should not be read restrictively, but nor could provisions be read into it which did not exist at will. The Commission had its own powers to commence investigations. When it might become involved in proceedings, either it sought to influence the outcome or it did not. If it did not, it was an improper distraction, and if it did it would be an improper intrusion, threatening the appearance of independence of the judiciary. In either case costs would be increased and have to be paid, and new issues of equality of arms would arise.

Citations:

Times 11-May-2001

Statutes:

Northern Ireland Act 1998

Human Rights, Coroners, Constitutional, Northern Ireland

Updated: 10 April 2022; Ref: scu.88484

Regina v European Community, Ecclesiastical Comittee of the Houses of Parliament, Ex Parte the Church Society: QBD 28 Oct 1993

The Church of England has full and effectively sole jurisdiction over own affairs. ‘Any matter concerning the Church of England’ can be read to include any matter at all. The court dismissed an application for leave to move for judicial review in which it was contended that a Measure was not authorised by section 3(6) of the 1919 Act.

Judges:

McCowan LJ and Tuckey J

Citations:

Times 04-Nov-1993, Independent 04-Nov-1993

Statutes:

Church of England Act 1919, The Church of England Assembly (Powers) Act 1919

Ecclesiastical, Constitutional

Updated: 09 April 2022; Ref: scu.86644

Rees and Others v Crane: PC 30 Mar 1994

(Trinidad and Tobago) A High Court judge complained that he had been unlawfully excluded from the roster of sittings for the following term.
Held: The procedure to suspend judge had to be followed closely. In this case there had been a breach of natural justice. His fundamental right to the protection of the law under paragraph 4(b) of the Constitution, that is the right to the protection of the law, had been violated. The decision to suspend him was contrary to section 137(1) of the Constitution which provided that: ‘A judge may be removed from office only for inability to perform the functions of his office (whether arising from infirmity of mind or body or any other cause), or for misbehaviour, and shall not be so removed except in accordance with the provisions of this section.’ That contravention could not be corrected retrospectively by a later suspension order.

Citations:

Gazette 30-Mar-1994, [1994] 2 AC 173

Cited by:

CitedNaidike, Naidike and Naidike v The Attorney General of Trinidad and Tobago PC 12-Oct-2004
(Trinidad and Tobago) The claimant was arrested following expiry of the last of his work permits and after he had failed to provide evidence of his intention to leave. As he was arrested he was also arrested for assaulting a police officer. He was . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Commonwealth

Updated: 09 April 2022; Ref: scu.85935

Practice Direction (Supreme Court: Devolution): LCJ 5 Jul 1999

Directions were given for how matters arising from the constitutional changes arising from the devolution of powers in Scotland, Wales and Northern Ireland were given. Such issues included, in general, whether a body had exceeded its powers, and whether or not it infringed the Human Rights Act. The Direction included forms and detailed notes and notices.

Citations:

Times 05-Jul-1999

Constitutional

Updated: 09 April 2022; Ref: scu.84910

Al-Adsani v Government of Kuwait and Others (No 2): CA 29 Mar 1996

The claimant alleged that he had suffered torture in a security prison in Kuwait, and he obtained leave to serve out of the jurisdiction on the Government of Kuwait, and on three individuals, one of whom at least was served, on the ground that he had in consequence suffered psychological damage after returning to and while in England. The Government of Kuwait applied to set aside the service on it, and for a declaration that it had immunity under s.1(1) of the 1978 Act.
Held: The State of Kuwait was entitled to state immunity from a claim for damages for torture. The Act was a comprehensive code. Although international law prohibited torture, no express or implied exception to immunity existed in cases of torture. The draftsman of the State Immunity Act must have been well aware of the numerous international conventions covering torture (although he could not, of course, have been aware of the convention against torture in 1984). If civil claims based on acts of torture were intended to be excluded from the immunity afforded by section 1(1) of the Act of 1978, because of the horrifying nature of such acts, or because they are condemned by international law, it is inconceivable that section 1(1) would not have said so.
Ward LJ: (As to the 1978 Act) ‘Unfortunately, the Act is as plain as plain can be. A foreign state enjoys no immunity for acts causing personal injury committed in the United Kingdom and if that is expressly provided for the conclusion is impossible to escape that state immunity is afforded in respect of acts of torture committed outside this jurisdiction.’
Stuart-Smith LJ: ‘At common law a sovereign state could not be sued at all against its will in the courts of this country. The 1978 Act, by the exceptions therein set out, makes substantial inroads into this principle. It is inconceivable, it seems to me, that the draftsman, who must have been well aware of the various international agreements about torture, intended section 1 to be subject to an overriding qualification.’

Judges:

Stuart-Smith LJ, Ward LJ

Citations:

Times 29-Mar-1996, (1996) 107 ILR 536

Statutes:

State Immunity Act 1978 1(1)

Jurisdiction:

England and Wales

Citing:

Appealed toMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .

Cited by:

Appeal fromMcElhinney v Ireland; Al-Adsani v United Kingdom; Fogarty v United Kingdom ECHR 21-Nov-2001
Grand Chamber – The first applicant said he had been injured by a shot fired by a British soldier who had been carried for two miles into the Republic of Ireland, clinging to the applicant’s vehicle following an incident at a checkpoint.
Held: . .
CitedJones v Ministry of Interior Al-Mamlaka Al-Arabiya As Saudiya Kingdom of Saudi Arabia) and Another CA 28-Oct-2004
The claimants sought damages alleging torture by the respondent whilst held in custody in Saudi Arabia.
Held: Although the state enjoyed freedom from action, where the acts were ones of torture, and action could proceed against state officials . .
CitedRegina v Bartle and The Commissioner Of Police For The Metropolis and Others Ex Parte Pinochet Ugarte, Regina v Evans and Another and The Commissioner of Police For The Metropolis and Others (No 1) HL 22-Nov-1998
The government of Spain had issued an arrest warrant and application for extradition in respect of Pinochet Ugarte for his alleged crimes whilst president of Chile. He was arrested in England. He pleaded that he had immunity from prosecution.
CitedAziz v Republic of Yemen CA 17-Jun-2005
The claimant had made a claim for unfair dismissal. The defendant state had filed a defence instead of claiming state immunity. It then sought to assert such immunity. The claimant said the state had waived its immunity.
Held: Section 2(7) of . .
CitedRegina v Bartle and Commissioner of Police for the Metropolis and Others, ex parte Pinochet Ugarte; Regina v Evans and Similar (No 3) HL 24-Mar-1999
An application to extradite a former head of state for an offence which was not at the time an offence under English law would fail, but could proceed in respect of allegations of acts after that time. No immunity was intended for heads of state. . .
CitedAugusto Pinochet Ugarte and In the Matter of an Application for Leave To Move for Judicial Review Regina v Evans (Metropolitan Stipendiary Magistrate) Admn 28-Oct-1998
A provisional warrant had been issued by a magistrate for the arrest of the former president of Chile when visting London. The arrest had been in response to an extradition request from a judge in Spain and related to allegations of criminal acts by . .
CitedJones v Ministry of Interior for the Kingdom of Saudi Arabia and others HL 14-Jun-2006
The claimants said that they had been tortured by Saudi police when arrested on false charges. They sought damages, and appealed against an order denying jurisdiction over the defendants. They said that the allegation of torture allowed an exception . .
Lists of cited by and citing cases may be incomplete.

International, Constitutional

Updated: 08 April 2022; Ref: scu.77703

Corway v Independent Newspapers (Ireland) Limited: 30 Jul 1999

(Supreme Court of Ireland)

Judges:

Hamilton CJ, Barrington J, Murphy J, Lynch J, Barron J

Citations:

[2000] 1 ILRM 426, [1999] 4 IR 485, [1999] IESC 5

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

CitedTaylor’s Case 1676
(Year?) An iriformatiori exhibited against him in the Crown Offce, for uttering of dlvers blasphemous expressions, horrible to hear, (viz.) that Jesus Christ was a bastard, a whoremaster, religion was a cheat ; and that he neither feared God, the . .
Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Updated: 02 April 2022; Ref: scu.599752

Mohammed v Public Service Commission and Others: PC 19 Oct 2017

(From the Court of Appeal of Trinidad and Tobago) Concern as to political independence of the appointment of senior police officers.

Judges:

Lord Kerr, Lord Clarke, Lord Wilson, Lord Carnwath, Lord Hughes

Citations:

[2017] UKPC 31

Links:

Bailii

Jurisdiction:

Commonwealth

Constitutional, Police

Updated: 01 April 2022; Ref: scu.598625

Idromacchine and Others v Commission: ECJ 3 Sep 2013

ECJ Appeal – Non-contractual liability of the European Union – Action for damages – Commission decision to initiate a formal investigation procedure – Prejudicial statements – Appeal in part manifestly inadmissible and in part manifestly unfounded
1. Appeals – Grounds – Mere repetition of the pleas and arguments put forward before the General Court – Manifest inadmissibility (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d) and 169(2) (see paras 31, 32, 47, 51, 52, 94)
2. Appeals – Grounds – Inadequate statement of reasons – Reliance by the General Court on implied reasoning – Lawfulness – Conditions (Art. 256 TFEU; Statute of the Court of Justice, Arts 36 and 53, first para.) (see para. 43)
3. Appeals – Grounds – Mistaken assessment of the facts – Inadmissibility – Review by the Court of the assessment of the facts and evidence – Possible only where the clear sense of the evidence has been distorted (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Arts 168(1)(d)) (see paras 62-64)
4. Appeals – Grounds – Mistaken assessment of the facts – Erroneous assessment of the existence of harm and of the ensuing compensation – Review exercised by the Court of Justice – Limits (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para,) (see paras 80, 83)

5. Appeals – Grounds – Specific criticism of a point of the General Court’s reasoning necessary (Art. 256 TFEU; Statute of the Court of Justice, Art. 58, first para.; Rules of Procedure of the Court of Justice, Art. 169(2)) (see para. 85)

Citations:

C-34/12, [2013] EUECJ C-34/12P, ECLI:EU:C:2013:552

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 30 March 2022; Ref: scu.595014

Germany v Commission – T-347/09: ECFI 12 Sep 2013

ECJ State aid – Transfer free of charge of certain areas of natural national heritage – Measures for the financial support of large-scale environmental protection projects – Decision declaring aid compatible with the common market – Concept of undertaking – Obligation to state reasons
1. Actions for annulment – Actionable measures – Concept – Measures producing binding legal effects – Decision classifying a notified measure as State aid and declaring it compatible with the common market – Included (Arts 87 EC, 88 EC and 230 EC) (see para. 16)
2. State aid – Concept – Legal nature – Interpretation on the basis of objective factors – Judicial review – Scope (Art. 87(1) EC) (see paras 19, 21)
3. Competition – Community rules – Undertaking – Concept – Exercise of an economic activity – Organisations for protecting the environment carrying on secondary activities of an economic nature without a profit motive – Exercise of secondary activities not comparable with the exercise of the prerogatives of the public authorities – Competition with operators pursuing a profit motive – Included (Art. 87(1) EC) (see paras 25-30, 38, 41, 43-45, 48-50, 59)
4. State aid – Concept – Granting of an advantage to beneficiaries – Placing at disposal free of charge of areas of natural national heritage permitting commercial exploitation – Included (Art. 87(1) EC) (see paras 61, 62, 67-70, 72, 73)

5. Acts of the institutions – Statement of reasons – Obligation – Scope – Commission decision on State aid (Arts 87(1) EC and 253 EC) (see paras 93-95, 100)

R

Citations:

ECLI:EU:T:2013:418, [2013] EUECJ T-347/09

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 30 March 2022; Ref: scu.595013

Slovak Republic v Council: ECJ 6 Sep 2017

Grand Chamber – Actions for annulment — Decision (EU) 2015/1601 — Provisional measures in the area of international protection for the benefit of the Hellenic Republic and the Italian Republic – Emergency situation characterised by a sudden inflow of nationals of third countries into certain Member States — Relocation of those nationals to other Member States — Relocation quotas — Article 78(3) TFEU — Legal basis — Conditions under which applicable — Concept of ‘legislative act’ – Article 289(3) TFEU — Whether conclusions adopted by the European Council are binding on the Council of the European Union – Article 15(1) TEU and Article 68 TFEU – Essential procedural requirements – Amendment of the European Commission’s proposal – Requirements for a further consultation of the European Parliament and a unanimous vote within the Council of the European Union – Article 293 TFEU – Principles of legal certainty and of proportionality

Citations:

[2017] EUECJ C-643/15, C-643/15

Links:

Bailii

Jurisdiction:

European

Citing:

OpinionSlovak Republic v Council – Opinion ECJ 6-Sep-2017
Area of Freedom, Security and Justice – Actions for annulment – Decision (EU) 2015/1601 – Provisional measures in the area of international protection for the benefit of the Italian Republic and the Hellenic Republic – Emergency situation . .
Lists of cited by and citing cases may be incomplete.

Immigration, Constitutional

Updated: 29 March 2022; Ref: scu.593578

Jalkh v Parliament (Order): ECFI 26 Jun 2017

ECJ (Order) Interim measures – Institutional law – MEP – Privileges and immunities -Levee the parliamentary immunity of a member of the European Parliament – Application for stay of execution – Lack of urgency

Citations:

ECLI:EU:T:2017:432, [2017] EUECJ T-26/17 – CO

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 27 March 2022; Ref: scu.588729

JK, Regina (on The Application of) v Secretary of State for The Home Department: CA 22 Jun 2017

‘challenge to a decision by the Secretary of State for the Home Department (‘the Respondent’) as to the weekly rate of asylum support paid for child dependants of asylum seekers. Underlying the challenge, however, are questions as to the proper province of the Judiciary and that of the Executive in matters such as this.’

Judges:

Hallett, Gross, Irwin LJJ

Citations:

[2017] EWCA Civ 433, [2017] WLR(D) 416

Links:

Bailii, WLRD

Jurisdiction:

England and Wales

Constitutional, Benefits, Immigration

Updated: 27 March 2022; Ref: scu.588325

Youngsam, Regina (on The Application of) v The Parole Board: Admn 7 Apr 2017

The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole.

Judges:

Turner J

Citations:

[2017] EWHC 729 (Admin)

Links:

Bailii

Statutes:

European Convention on Human Rights 5, Criminal Justice Act 2003 244 254

Jurisdiction:

England and Wales

Citing:

CitedWhiston, Regina (on The Application of) SC 2-Jul-2014
The claimant, having been released from prison on licence, objected to the procedure whereby his licence was revoked with no means for him to challenge that decision.
Held: The appeal was dismissed. Article 5(4) did not apply to the particular . .
CitedQuinn v Leathem HL 5-Aug-1901
Unlawful Means Conspiracy has two forms
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union . .
CitedBehrens v Bartram Mill Circus QBD 1957
Devlin J said that the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent. . .
Dicta approvedKadhim v Housing Benefit Board, London Borough of Brent CA 20-Dec-2000
A lower court was not bound to follow a decision of a higher court, where the decision at issue had been based, on the relevant point, on an unargued assumption about the law, which had in turn been pivotal to the decision of that higher court: ‘The . .
CitedLawrence v South Country Freeholds Ltd ChD 1939
Simonds J held that on the facts before him no general scheme of development existed. It was accordingly not necessary to determine what rights as between the sub-purchasers there might have been if the main scheme had been held to exist. However, . .
Dicta approvedBrunner v Greenslade ChD 1971
Megarry J discussed the ratio decidendi of and approving dicta in Lawrence.
‘The substance of the views of Simonds J was that where there is a head scheme, any sub-purchasers are bound inter se by the covenants of that head scheme even though . .
CitedPractice Statement (Judicial Precedent) HL 1966
The House gave guidance how it would treat an invitation to depart from a previous decision of the House. Such a course was possible, but the direction was not an ‘open sesame’ for a differently constituted committee to prefer their views to those . .
CitedRegina v Parole Board ex parte Smith, Regina v Parole Board ex parte West (Conjoined Appeals) HL 27-Jan-2005
Each defendant challenged the way he had been treated on revocation of his parole licence, saying he should have been given the opportunity to make oral representations.
Held: The prisoners’ appeals were allowed.
Lord Bingham stated: . .
CitedBlack, Regina (on the Application of) v Secretary of State for Justice HL 21-Jan-2009
The appellant complained that the system for considering the release of a life prisoner did not comply with the Convention when the decision was made by the Secretary of State and not by the Parole Board, or the court. The Board had recommended his . .
CitedVirgin Atlantic Airways Ltd v Zodiac Seats UK Ltd SC 3-Jul-2013
Virgin Atlantic Airways Ltd sought to recover damages exceeding 49,000,000 pounds for the infringement of a European Patent which did not exist in the form said to have been infringed. The Technical Board of Appeal of the European Patent Office had . .
Lists of cited by and citing cases may be incomplete.

Human Rights, Litigation Practice, Prisons, Constitutional

Updated: 24 March 2022; Ref: scu.581637

Minority Safepack – One Million Signatures for Diversity In Europe v Commission: ECFI 3 Feb 2017

ECJ (Judgment) Law governing the institutions – European citizens’ initiative – Protection of national and linguistic minorities and strengthening of cultural and linguistic diversity in the European Union – Refusal of registration – Commission manifestly lacking legislative powers – Obligation to state reasons – Article 4(2)(b) and (3) of Regulation (EU) No 211/2011

Citations:

ECLI:EU:T:2017:59, [2017] EUECJ T-646/13

Links:

Bailii

Jurisdiction:

European

Constitutional

Updated: 29 January 2022; Ref: scu.573898

David Baxendale Ltd v Revenue and Customs: CA 31 Jul 2009

The court was asked as to the correct VAT treatment to be applied to the sale to members of the public of what is described as the LighterLife weight loss programme. The taxpayer appealed against a finding that services of dietary products and counselling support were in law one supply.
Held: The appeal failed.

Judges:

Lord Justice Patten

Citations:

[2009] EWCA Civ 831, [2009] STI 2348, [2009] BVC 663, [2009] STC 2578

Links:

Bailii

Jurisdiction:

England and Wales

Citing:

At FTTTxDavid Baxendale Ltd v Revenue and Customs VDT 30-Jul-2008
VDT VAT – Supply of services – Whether supplied for consideration – Dietary foodpacks supplied together with counselling support, payment made for foodpacks – Whether consideration given for counselling support – . .
At ChDHM Revenue and Customs v David Baxendale Ltd ChD 5-Feb-2009
The taxpayer provided slimming schemes in two parts, counselling support and supplies of dietary products. The parties disputed the treatement of the services for VAT purposes. The revenue argued there was one service, and the taxpayer that there . .

Cited by:

At CABaxendale Ltd and Another v Revenue and Customs FTTTx 4-Jul-2013
FTTTx PROCEDURE – striking out of proceedings – whether appellants’ case had a reasonable prospect of succeeding – abuse of process – whether Court of Appeal decision in David Baxendale was per incuriam or . .
Lists of cited by and citing cases may be incomplete.

VAT, European, Constitutional

Updated: 28 January 2022; Ref: scu.368592

Barron and Others v Collins MEP: QBD 22 Dec 2016

The defendant MEP had had adjourned the claim against her for defamation, claiming that her actions has been as an MEP and therefore exempt from proceedings. The chair of the European Parliament Legal Affairs Committee had received and rejected her request for protection. She now said that she had not been properly advised when settling.
Held: After discussing each of them, the court jeld that: ‘the defendant falls a long way short of demonstrating that the public interest requires an investigation of the matters of defence that she has put forward.’ Her application was dismissed.

Warby J
[2016] EWHC 3350 (QB)
Bailii
Defamation Act 1996 2 3 4
England and Wales
Citing:
CitedDi Placito v Slater and others CA 19-Dec-2003
The parties had earlier compromised their dispute, with the claimant undertaking not to lodge any further claim unless he did so within a certain time. They now sought to commence action.
Held: When considering whether to discharge such an . .
CitedWarren v The Random House Group Ltd CA 16-Jul-2008
An offer of amends by the defendant had been accepted by the claimant. The defendant then sought to set aside the agreement and to resist the claim on its merits in reliance on a defence of justification. The parties disputed whether such an offer . .
See AlsoBarron MP and Another v Vines QBD 29-Apr-2015
The court considered the damages to be awarded afer a libellous television broadcast on Sky TV. The claimants were MPs for Rotherham. There had been a large scale abuse of children, and they had been accused of not responding properly to it by the . .
See AlsoBarron MP and Others v Collins MEP QBD 29-Apr-2015
Trial of preliminary issues in for defamation. The claimants, MPs for Rotherham areas, said that a speech by the defendant to the UKIP conference and repeated on TV contained assertions defamatory of them.
Held: The words complained of bore . .
CitedDecker v Hopcraft QBD 30-Apr-2015
The claimant, a litigant in person, was absent from the hearing of a defamation action arising from a dispute between the parties in their capacities as committee members of the Crawley Boxing Club.
Held: The court gave its reasons for . .

Lists of cited by and citing cases may be incomplete.

Defamation, Constitutional

Updated: 27 January 2022; Ref: scu.572647

Remondis GmbH and Co KG v Region Hannover: ECJ 21 Dec 2016

ECJ Judgment – Reference for a preliminary ruling – Article 4(2) TEU – Respect for the national identity of the Member States inherent in their fundamental political and constitutional structures, including local and regional self-government – Internal organization of the Member States – Communities Territorial legislation – Legal instrument creating a new public-law entity and organizing the transfer of powers and responsibilities for the performance of public tasks – Public procurement – Directive 2004/18 / EC – Article 1 (2) (a) – Concept of ‘public contract

C-51/15, [2016] EUECJ C-51/15
Bailii
TEU 4(2), Directive 2004/18/EC 1(2)(a)
European

Constitutional

Updated: 27 January 2022; Ref: scu.572607

Madhewoo v The State of Mauritius and Another: PC 31 Oct 2016

(From the Supreme Court of Mauritius) The claimant had alleged that a new compulsory biometric identity card scheme contravened his human rights. It was provided that citizens must carry such cards and produce them to identify themselves upon request. In particular the court had found that the need to give fingerprints and for their retention requird justification.
Held: The Constitution is to be given a generous and purposive interpretation and in particular the provisions that enshrine fundamental rights should receive a generous and not literalist interpretation.

Lord Mance, Lord Clarke, Lord Wilson, Lord Sumption, Lord Hodge
[2016] UKPC 30
Bailii
Commonwealth

Commonwealth, Constitutional

Updated: 24 January 2022; Ref: scu.570730

Marra v De Gregorio C-201/07 (Privileges And Immunities): ECJ 21 Oct 2008

ECJ Grand Chamber – Reference for a preliminary ruling European Parliament Leaflet issued by a Member of the European Parliament containing insulting remarks – Claim for non-pecuniary damages – Immunity of Members of the European Parliament
The question of immunity gave rise to three questions: ‘ . . first, whether, where the national court which has to rule on an action for damages brought against a Member of the European Parliament in respect of opinions expressed by him has received no information regarding a request from that member to the Parliament seeking defence of his immunity, that court may itself rule on whether the immunity provided for in Article 9 of the Protocol applies with regard to the factors in the particular case; second, whether, where the national court is informed of the fact that that member has made such a request to Parliament, that court must await the decision of the Parliament before continuing with the proceedings against that member; and, third, whether, where the national court finds that that immunity does apply, it must request the waiver of that immunity for the purposes of continuing with the legal proceedings.’ To which the answers were Yes, Yes and No

V. Skouris, P
[2008] EUECJ C-201/07
Bailii
Citing:
OpinionMarra v De Gregorio C-201/07 ECJ 26-Jun-2008
ECJ Opinion – Privileges And Immunities – Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) . .
See AlsoMarra v De Gregorio C-200/07 ECJ 21-Oct-2008
ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 16 January 2022; Ref: scu.564503

Marra v De Gregorio C-200/07: ECJ 21 Oct 2008

ECJ Reference for a preliminary ruling European- Parliament – Leaflet issued by a Member of the European Parliament containing insulting remarks Claim for non-pecuniary damages Immunity of Members of the European Parliament

[2008] EUECJ C-200/07
Bailii
Citing:
OpinionMarra v De Gregorio C-200/07 (Privileges and Immunities) ECJ 26-Jun-2008
ECJ Opinion – Reference for a preliminary ruling from the Corte Suprema di Cassazione (Italy) . .

Cited by:
See AlsoMarra v De Gregorio C-201/07 (Privileges And Immunities) ECJ 21-Oct-2008
ECJ Grand Chamber – Reference for a preliminary ruling European Parliament Leaflet issued by a Member of the European Parliament containing insulting remarks – Claim for non-pecuniary damages – Immunity of . .
CitedBarron and Others v Collins QBD 16-May-2016
The defendant MEP sought an order staying the defamation action brought against her by four MPs from the Rotherham area. She said that as an MEP she had a procedural immunity. She had informed the European Commission that she sought the protection . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional

Updated: 16 January 2022; Ref: scu.564504

Makudi v Baron Triesman of Tottenham In London Borough of Haringey: QBD 1 Feb 2013

The claimant, former chairman of the Thailand Football Association, claimed in defamation against the defendant who had been chairman of the English Football Association. The defendant asked the court to strike out the claim, saying that some of the claims were based on privileged evidence given to a parliamentary committee, and associated publications, and the remainder had so restricted a distribution as to make the action an abuse.
Held: The action should be struck out. The occasions of the four publications complained of were all plainly occasions of qualified privilege, and there was no case in malice that could be left to a jury. It was not possible to separate out the defendant’s state of mind when making the publications complained of and his evidence to Parliament.

Tugendhat J
[2013] EWHC 142 (QB)
Bailii
Bill of Rights 1689 9
England and Wales
Citing:
CitedGrainger v Hill CEC 1838
Misuse of Power for ulterior object
D1 and D2 lent C 80 pounds repayable in 1837, secured by a mortgage on C’s vessel. C was to be free to continue to use the vessel in the interim but the law forbade its use if he were to cease to hold its register. In 1836 the Ds became concerned . .
CitedByrne v Deane CA 1937
A notice had been displayed on a golf club notice board. The court considered whether this constituted publication for defamation purposes.
Held: Greene LJ said: ‘Now on the substantial question of publication, publication, of course, is a . .
CitedHorrocks v Lowe HL 1974
The plaintiff complained of an alleged slander spoken at a meeting of the Town Council. The council meeting was an occasion attracting qualified privilege. The judge at trial found that the councillor honestly believed that what he had said in the . .
CitedBroxton v McClelland and Another CA 27-Nov-1996
The judge may disclose to the jury the purpose of a non-party’s involvement as a backer of a party if it is relevant to the case.
Simon Brown LJ said as to an allegation that the claim was an abuse of process: ‘The cases appear to suggest two . .
CitedHamilton v Al Fayed HL 23-Mar-2000
The claimant MP sued the defendant in defamation after he had alleged that the MP had corruptly solicited and received payments and benefits in kind as a reward for parliamentary services rendered.
Held: Parliament has protected by privilege . .
CitedMcLean and Another v Buchanan, Procurator Fiscal and Another PC 24-May-2001
(Appeal from High Court of Justiciary (Scotland)) It was not an infringement of a defendant’s right to a fair trial where the costs of defending the case brought against him would be substantial, but where his solicitors would be paid only a small . .
CitedChase v Newsgroup Newspapers Ltd CA 3-Dec-2002
The defendant appealed against a striking out of part of its defence to the claim of defamation, pleading justification.
Held: The Human Rights Convention had not itself changed the conditions for a plea of justification based upon reasonable . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedDow Jones and Co Inc v Jameel CA 3-Feb-2005
Presumption of Damage in Defamation is rebuttable
The defendant complained that the presumption in English law that the victim of a libel had suffered damage was incompatible with his right to a fair trial. They said the statements complained of were repetitions of statements made by US . .
CitedChurch of Scientology of California v Johnson-Smith QBD 1971
The plaintiff church sued the defendant, a Member of Parliament, for remarks made by the defendant in a television programme. He pleaded fair comment and the plaintiff replied with a plea of malice, relying on statements made in Parliament. The . .
CitedJeynes v News Magazines Ltd and Another CA 31-Jan-2008
Whether Statement defamatory at common law
The claimant appealed against a striking out of her claim for defamation on finding that the words did not have the defamatory meaning complained of, namely that she was transgendered or transsexual.
Held: The appeal failed.
Sir Anthony . .
CitedFairclough Homes Ltd v Summers SC 27-Jun-2012
The respondent had made a personal injury claim, but had then been discovered to have wildly and dishonestly exaggerated the damages claim. The defendant argued that the court should hand down some condign form of punishment, and appealed against . .

Cited by:
Appeal fromMakudi 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.

Defamation, Constitutional

Updated: 12 January 2022; Ref: scu.470710

Vidmar and Others v Commission: ECFI 26 Feb 2016

ECJ (Judgment) Non-contractual liability – Accession of Croatia to the Union – Repeal of national legislation providing for the establishment of the profession of public executing agency – Pre-accession to national law – Damage suffered by persons previously appointed as public officials – Failure by the Commission to adopt measures to comply with the commitments to accession – Adequate infringement of a rule of law conferring rights on individuals – Article 36 of the Act of Accession

ECLI:EU:T:2016:106, [2016] EUECJ T-507/14
Bailii
European

Constitutional

Updated: 10 January 2022; Ref: scu.560496

Drax Power Ltd and Another, Regina (on The Application of) v Hm Treasury and Others: Admn 10 Feb 2016

The claimant sought to challenge the removal of the exemption for renewable source electricity from the Climate Change Levy.
Held: Review was refused. The court rejected the Respondents’ submission that EU law has no application to the RSE Exemption at all and that therefore the claim must fail because at the national level legitimate expectations cannot be raised against a sovereign Parliament. The amendments to para. 19 of Schedule 6 to the FA 2000 are within the scope of EU law. The EU law principle of legal certainty, and its corollary the protection of legitimate expectations, require that the application of rules of law must be foreseeable by those subject to them, and that a breach of the EU law principle of foreseeability would also be a breach of domestic law on account of the European Communities Act 1972.
The Judge rejected the Claimants’ case that the legal test as to whether there had been a breach of the EU law principles of legal certainty and protection of legitimate expectations in the present case is reducible to the question whether a prudent and circumspect economic operator could have foreseen the possibility of a without notice withdrawal of the RSE Exemption in all the circumstances.
It was not possible to reconcile the various strands of ECJ jurisprudence and the Claimants could not succeed unless they established to his satisfaction that the Respondents promoted a legitimate expectation of there being no withdrawal of the RSE Exemption without a two year time limit (for which the Judge understood the Claimants to be contending), or equivalent fiscal benefit in lieu.
What was required was an express assurance by the Government that any withdrawal of the RSE Exemption would be coupled with the specific two year lead time, or that that might irresistibly be inferred from what Government had said and done such that the giving of such an assurance might be implied; in other words, the giving of something tantamount to an express assurance.
A prudent and circumspect operator should not have inferred that the RSE Exemption would not be removed without a two-year lead time. The Respondents had not created any legitimate expectation on the part of the Claimants to the effect that the RSE Exemption would not be withdrawn without providing a lead time of two-years, or equivalent value.

Jay J
[2016] EWHC 228 (Admin)
Bailii
European Communities Act 1972
England and Wales
Cited by:
Appeal fromInfinis Energy Holdings Ltd v HM Treasury and Another CA 21-Oct-2016
No breach of EU Legitimate Expectation
The appellant challenged rejection of its request for judicial review of a decision to remove financial support for its creation pf renewable energy.
Held: The appal failed. Althought eth claimant would indeed be severely affected, it had . .

Lists of cited by and citing cases may be incomplete.

Utilities, Constitutional, Customs and Excise

Updated: 10 January 2022; Ref: scu.559744

Behrens v Bartram Mill Circus: QBD 1957

Devlin J said that the ratio decidendi consists of the reason or reasons for a decision which the judge who gives it wishes to have the full authority of precedent.

Devlin J
1957] 2 QB 1
England and Wales
Cited by:
CitedYoungsam, Regina (on The Application of) v The Parole Board Admn 7-Apr-2017
The claimant challenged being recalled to prison from licence after being found in an area from which he was excluded as a condition of his parole. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Constitutional

Updated: 07 January 2022; Ref: scu.581638

Unison, Regina (on The Application of) v Lord Chancellor: SC 26 Jul 2017

The union appellant challenged the validity of the imposition of fees on those seeking to lay complaints in the Employment Tribunal system.
Held: The appeal succeeded. The fees were discriminatory and restricted access to justice.
The consequence of the order had been very substantially to reduce the number of cases coming before the tribunal, and: ‘The fall in the number of claims has in any event been so sharp, so substantial, and so sustained as to warrant the conclusion that a significant number of people who would otherwise have brought claims have found the fees to be unaffordable . . the Fees Order effectively prevents access to justice, and is therefore unlawful.’
The idea that bringing a claim before a court or a tribunal is a purely private activity, and the related idea that such claims provide no broader social benefit, are demonstrably untenable: ‘At the heart of the concept of the rule of law is the idea that society is governed by law. Parliament exists primarily in order to make laws for society in this country. Democratic procedures exist primarily in order to ensure that the Parliament which makes those laws includes Members of Parliament who are chosen by the people of this country and are accountable to them. Courts exist in order to ensure that the laws made by Parliament, and the common law created by the courts themselves, are applied and enforced. That role includes ensuring that the executive branch of government carries out its functions in accordance with the law. In order for the courts to perform that role, people must in principle have unimpeded access to them. Without such access, laws are liable to become a dead letter, the work done by Parliament may be rendered nugatory, and the democratic election of Members of Parliament may become a meaningless charade. That is why the courts do not merely provide a public service like any other.’

Lord Neuberger of Abbotsbury PSC, Baroness Hale of Richmond DPSC, Lord Mance, Lord Kerr of Tonaghmore, Lord Wilson, Lord Reed, Lord Hughes JJSC
[2017] UKSC 51, [2017] IRLR 911, [2017] HRLR 11, [2017] 4 All ER 903, [2017] 3 WLR 409, [2017] WLR(D) 552, [2018] 1 CMLR 35, [2017] ICR 1037, [2017] 4 Costs LR 721, UKSC 2015/0233
Bailii, Bailii Summary, SC, SC Summary, SC Summary Video, SC 20170327 am video, SC 20170327 pm Video, SC 20170328 am Video, SC 20170328 pm Video, WLRD
Employment Tribunals and Employment Appeal Tribunal Fees Order 2013 3 4, Tribunals, Courts and Enforcement Act 2007, Charter of Fundamental Rights of the European Union 51
England and Wales
Citing:
At AdmnUnison, Regina (on The Application of) v Lord Chancellor Admn 29-Jul-2013
Renewed application for permission to bring a claim for judicial review of the Employment Tribunals and the Employment Appeal Tribunal Fees Order 2013. . .
At Admn (1)Unison, Regina (on The Application of) v The Lord Chancellor and Another Admn 7-Feb-2014
The claimant challenged the Regulations and Orders charging for the laying of complaints at Employment Tribunals, saying they were mistaken and discriminatory.
Held: The challenge failed. The new Order was not in breach of European Union . .
Appeal FromUnison, Regina (on The Application of) v The Lord Chancellor CA 26-Aug-2015
Unison brought two challenges to rules brought in to impose fees for the bringing of cases in the Employment Tribunal.
Held: The appeals were dismissed. The imposition of a fee would not constitute an interference with the right of effective . .
CitedRegina v Secretary of State for Social Security Ex Parte B and the Joint Council for the Welfare of Immigrants CA 27-Jun-1996
The Secretary of State had introduced regulations which excluded the statutory right to payment of ‘urgent case’ benefits for asylum seekers who had not claimed asylum immediately upon arrival, or whose claims for asylum had been rejected, and who . .
CitedImpact v Minister for Agriculture and Food ECJ 15-Apr-2008
ECJ Grand Chamber – Fixed-term employment – Directive 1999/70/EC – Framework agreement on fixed-term work – Abuse through use of successive fixed – term employment contracts – Civil and public servants – . .
CitedStar Storage (Judgment) ECJ 15-Sep-2016
Reference for a preliminary ruling – Directives 89/665/EEC and 92/13/EEC – Public procurement – Review procedures – National legislation making the admissibility of appeals against the acts of a contracting authority subject to giving a ‘good . .

Cited by:
CitedMiller, Regina (On the Application Of) v The Prime Minister QBD 11-Sep-2019
Prorogation request was non-justiciable
The claimant sought to challenge the prorogation of Parliament by the Queen at the request of the respondent.
Held: The claim failed: ‘the decision of the Prime Minister to advise Her Majesty the Queen to prorogue Parliament is not justiciable . .
CitedMiller, Regina (on the Application of) v The Prime Minister; Cherry QC v Lord Advocate SC 24-Sep-2019
Prerogative act of prorogation was justiciable.
The Prime Minister had prorogued Parliament for a period of five weeks, leaving only a short time for Parliament to debate and act the forthcoming termination of the membership by the UK of the EU. The Scottish Court had decided (Cherry) that the . .
CitedMiller v The College of Policing CA 20-Dec-2021
Hate-Incident Guidance Inflexible and Unlawful
The central issue raised in the appeal is the lawfulness of certain parts of a document entitled the Hate Crime Operational Guidance (the Guidance). The Guidance, issued in 2014 by the College of Policing (the College), the respondent to this . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Employment, Human Rights, European

Updated: 30 December 2021; Ref: scu.591177

Bugg v Director of Public Prosecutions; Director of Public Prosecutions v Percy: QBD 1993

The defendants appealed against convictions for having entered military bases contrary to various bye-laws. They challenged the validity of the bye-laws.
Held: The validity of a bye-law could be challenged in criminal proceedings, but where the irregularity alleged was procedural, the bye-law remained effective until it was set aside in civil proceedings. Except in the ‘flagrant’ and ‘outrageous’ case a statutory order, such as a byelaw, remains effective until it is quashed. Byelaws which are on their face invalid or are patently unreasonable (termed ‘substantive’ invalidity) may be called in question by way of defence in criminal proceedings, whereas byelaws which are invalid because of some defect in the procedure by which they came to be made (termed ‘procedural’ invalidity) may not be called in question in such proceedings, so that a person might be convicted of an offence under them even if the byelaws were later quashed in other proceedings.

[1993] QB 473, [1993] 2 WLR 628
England and Wales
Citing:
CitedSmith (Kathleen Rose) v East Elloe Rural District Council HL 26-Mar-1956
The plaintiff challenged a compulsory purchase order as unlawful and made in bad faith and sought damages for trespass. Paragraph 16 provided that an order could not be challenged by legal proceedings, save in the circumstances identified in . .
CitedF Hoffmann La Roche and Co A G v Secretary of State for Trade and Industry HL 1975
No Indemnity for misadministration
The Secretary of State sought an interlocutory injunction under the Act to restrain the appellant from charging prices in excess of those fixed by a statutory instrument he had made. The appellant argued that the statutory instrument was ultra . .
CitedLondon and Clydeside Estates v Aberdeen District Council HL 8-Nov-1979
Identifying ‘maandatory’ and ‘regulatory’
The appellants had sought a Certificate of Alternative Development. The certificate provided was defective in that it did not notify the appellants, as required, of their right to appeal. Their appeal out of time was refused.
Held: The House . .
See AlsoPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Cited by:
OverruledBoddington v British Transport Police HL 2-Apr-1998
The defendant had been convicted, under regulations made under the Act, of smoking in a railway carriage. He sought to challenge the validity of the regulations themselves. He wanted to argue that the power to ban smoking on carriages did not . .
DoubtedRegina v Wicks HL 21-May-1997
Criminal proceedings, forming part of the general scheme of enforcement of planning control contained in Part VII of the Act, had been taken.
Held: The validity of a planning enforcement notice must be challenged in civil proceedings, not . .
See AlsoPercy v Director of Public Prosecutions QBD 13-Dec-1994
A woman protester repeatedly climbed over the perimeter fencing into a military base.
Held: The defendant had a choice between agreeing to be bound over and going to prison. Her refusal to agree to be bound over had an immediate and obvious . .

Lists of cited by and citing cases may be incomplete.

Crime, Local Government, Constitutional

Updated: 23 December 2021; Ref: scu.187073

Harb v HRH Prince Abdul Aziz: ChD 9 Jun 2014

The Defendant applies under CPR 11.1 for an order declaring that the court has no jurisdiction to try this claim against him on the grounds that the claim is barred by the defence of state immunity under the State Immunity Act 1978.

Rose J
[2014] EWHC 1807 (Ch), [2014] 1 WLR 4437, [2015] 1 All ER 77, [2014] WLR(D) 248
Bailii, WLRD
Civil Procedure Rules 11.1, State Immunity Act 1978
England and Wales

Constitutional, Litigation Practice

Updated: 04 December 2021; Ref: scu.526361

Castle v Crown Prosecution Service: Admn 24 Jan 2014

The defendant appealed from his conviction for having driven in excess of a variable speed limit on the motorway. He said that the Order under which the speed limit had been imposed was irregular.

Pitchford LJ, Cranston
[2014] RTR 19, [2014] WLR(D) 33, (2014) 178 JP 285, [2014] EWHC 587 (Admin), [2014] 1 WLR 4279
Bailii, WLRD
Road Traffic Regulation Act 1984 14, M62 Motorway (Junction 25 to Junction 30) (Temporary Restriction and Prohibition of Traffic) Order 2011, Road Traffic (Temporary Restrictions) Procedure Regulations 1992 3
England and Wales
Citing:
CitedCarltona Ltd v Commissioners of Works CA 1943
Ministers May Act through Civil Servants
The plaintiffs owned a factory which was to be requisitioned. They sought a judicial review of the lawfulness of the order making the requisition, saying that the 1939 Regulations had been implemented not by the Minister as required, but by an . .
CitedLewisham Borough Council v Roberts CA 1949
The council sought to exercise its powers under the Act to take possession of part of the defendant’s property.
Held: Denning LJ said: ‘It is necessary to consider the nature of the power to requisition land. It is only a power to take . .
CitedRegina v Secretary of State for the Home Department ex parte Oladehinde HL 18-Oct-1990
A decision at Senior Executive Officer level was accepted as appropriate in a deportation case. There was an express form of delegation, and acts of the immigration officers required to be regarded as the acts of the Home Secretary.
Lord . .
CitedRegina v Secretary of State for Social Security ex parte Sherwin (a Patient By Her Next Friend Sherwin) Admn 16-Feb-1996
An official in the Benefits Agency, part of the Department of Health and Social Security, suspended an income support/severe disability premium payable to the appellant. The court was asked whether the decision of the Agency, made under the . .

Cited by:
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .
CitedBourgass and Another, Regina (on The Application of) v Secretary of State for Justice SC 29-Jul-2015
The Court considered the procedures when a prisoner is kept in solitary confinement, otherwise described as ‘segregation’ or ‘removal from association’, and principally whether decisions to keep the appellants in segregation for substantial periods . .

Lists of cited by and citing cases may be incomplete.

Road Traffic, Constitutional

Updated: 01 December 2021; Ref: scu.522554

Bancoult, Regina (on The Application of) (No 3) v Secretary of State for Foreign and Commonwealth Affairs: SC 8 Feb 2018

Diplomatic Protection Lost to Public Domain

The claimant challenged the use of a Marine Protected Area Order to exclude the Chagossians from their homelands on their British Indian Overseas Territory. They had sought to have admitted and used in cross examination of witnesses leaked diplomatic material which they said would show that the decision to request the Order arose from an improper motive.
Held: Though parts of a diplomatic mission archive were inviolable, this document may have been obtained in fact from the US State Department or similar and was no longer part of that archive. It was admissible.

Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr, Lord Clarke, Lord Sumption, Lord Reed
[2018] UKSC 3, UKSC 2015/0022, [2018] 1 WLR 973, [2018] 2 All ER 945, [2018] Env LR 24, [2018] WLR(D) 79
Bailii, SC, SC Summary, SC Summary Video, SC 28 Jun 2017 AM Video, SC 28 Jun 2017 pm Video, SC 29 Jun 2017 pm Video, SC 29 Jun 2017 am Video, WLRD, Bailii Summary
Diplomatic Privileges Act 1964 2(1), Vienna Convention on Diplomatic Relations 1961 24 27(2)
England and Wales
Citing:
At First Instance (Admn)Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs Admn 11-Jun-2013
The claimant, displaced from the Chagos Archipelago, challenged a decision by the respondent to create a no-take Marine Protected Area arround the island which would make life there impossible if he and others returned. The respondent renewed his . .
Appeal from (CA)Bancoult, Regina (on The Application of) v Secretary of State for Foreign and Commonwealth Affairs CA 23-May-2014
The appellant wished to challenge the decision made by the respondent to declare a ‘no-take’ Marine Protected Area’ covering their former home islands of Chagos. They sought to have entered in evidence of an improper motive in the Minister making . .
CitedRex v Rose 1946
(Quebec Court of King’s Bench, Appeal Side) Rose was convicted on charges of conspiracy to act with a group of Russian and Canadian subjects in a manner which was prejudicial to the safety of Canada. Part of the evidence was contained in documents . .
CitedFayed v Al-Tajir CA 1987
The de facto head of the Embassy of the United Arab Emirates in London was sued by Mr Fayed in respect of an Embassy communication addressed to an Embassy counsellor. Diplomatic immunity had been waived, but the question remained whether the . .
CitedShearson Lehman Brothers Inc v Maclaine Watson and Co Ltd and International Tin Council (Intervener) (No. 2) HL 1988
Article 7(1) of the International Tin Council (Immunities and Privileges) Order 1972 provided that the ITC ‘shall have the like inviolability of official archives as in accordance with the 1961 Convention Articles is accorded in respect of the . .
CitedAttorney-General v Guardian Newspapers Ltd (No 2) (‘Spycatcher’) HL 13-Oct-1988
Loss of Confidentiality Protection – public domain
A retired secret service employee sought to publish his memoirs from Australia. The British government sought to restrain publication there, and the defendants sought to report those proceedings, which would involve publication of the allegations . .
See AlsoChagos Islanders v The Attorney General, Her Majesty’s British Indian Ocean Territory Commissioner QBD 9-Oct-2003
The Chagos Islands had been a British dependent territory since 1814. The British government repatriated the islanders in the 1960s, and the Ilois now sought damages for their wrongful displacement, misfeasance, deceit, negligence and to establish a . .

Lists of cited by and citing cases may be incomplete.

Constitutional

Updated: 20 November 2021; Ref: scu.604213

Wightman, MSP and Others, Reclaiming Motion By v The Advocate General: SCS 20 Mar 2018

Art 50 withdrawal possibility review to proceed

Petition seeking judicial review of the United Kingdom Government’s ‘position’ on the revocability of a notice of intention to withdraw from the European Union in terms of Article 50.2 of the Treaty on European Union.

[2018] ScotCS CSIH – 18
Bailii
Scotland
Cited by:
At Outer HouseWightman MSP and Others for Judicial Review v The Secretary of State for Exiting The European Union SCS 8-Jun-2018
The Petitioners sought a declaration that the Article 50 notice given by the UK government could be withdrawn by the UK without the consent of the EU.
Held: The matter was referred to the CJEU for a preliminary answer to the question: ‘Where, . .
At Outer HouseWightman and Others v Secretary of State for Exiting the European Union ECJ 4-Dec-2018
Opinion – Unilateral withdrawal of Art 50 Notice
Opinion – Right of withdrawal from the European Union – Notification of the intention to withdraw – Withdrawal of the United Kingdom (Brexit)
Question referred for a preliminary ruling – Admissibility – Article 50 TEU – Right of withdrawal from . .
At Outer HouseWightman and Others v Secretary of State for Exiting the European Union ECJ 10-Dec-2018
Art 50 Notice withrawable unilaterally
Reference for a preliminary ruling – Article 50 TEU – Notification by a Member State of its intention to withdraw from the European Union – Consequences of the notification – Right of unilateral revocation of the notification – Conditions
The . .

Lists of cited by and citing cases may be incomplete.

European, Constitutional, Judicial Review

Updated: 11 November 2021; Ref: scu.609354

Regina v Secretary of State for Health ex parte Quintavalle (on behalf of Pro-Life Alliance): HL 13 Mar 2003

Court to seek and Apply Parliamentary Intention

The appellant challenged the practice of permitting cell nuclear replacement (CNR), saying it was either outside the scope of the Act, or was for a purpose which could not be licensed under the Act.
Held: The challenge failed. The court was to give effect to the intentions of Parliament, and statutes were to be read accordingly. The words which suggested it only applied to those which had human life given by fertilisation were words of description and not words of exclusive definition.
The words ‘where fertilisation is complete’ were intended not to qualify which embryos were protected, but the time at which they were protected. This was an Act passed for the protection of live human embryos created outside the human body. The essential thrust of section 1(1)(a) was directed to such embryos, not to the manner of their creation. The process was within the scope of the Act, and could accordingly be licensed under it. There was a ‘clear purpose in the legislation’ which could ‘only be fulfilled if the extension [was] made’.
Lord Bingham said: ‘The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulties. Such an approach not only encourages immense preliminary complexity in drafting, since the draftsman will feel obliged to provide expressly for every contingency which may possibly arise. It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutia of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish or effect some improvement to the national life. The court’s task, within the permissible bounds of interpretation, is to give effect to Parliament’s purpose. So the controversial provision should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment . . There is, I think, no inconsistency between the rule that statutory language retains the meaning it had when Parliament used it and the rule that a statute is always speaking . . The courts have frequently had to grapple with the question whether a modern invention or activity falls within old statutory language . . a revealing example is found in Grant v Southwestern and County Properties Limited [1975] Ch 185, where Walton J had to decide whether a tape recording falls within the expression ‘document’ in the Rules of the Supreme Court. Pointing out, at p190, that the furnishing of information had been treated as one of the main functions of a document, the judge concluded that a tape recording was a document.’
Lord Steyn noted that Acts were generally to be construed as ‘always speaking’ unless they were in an exceptional category dealing with a particular problem. Otherwise the court was free to apply the meaning of the statute to the present day conditions.

Bingham of Cornhill, Steyn, Hoffmann, Millett, Scott of Foscoe, LL
[2003] UKHL 13, Times 14-Mar-2003, [2003] 2 WLR 692, [2003] 2 AC 687, (2003) 71 BMLR 209, [2003] 1 FCR 577, [2003] 2 All ER 113
House of Lords, Bailii
Human Fertilisation and Embryology Act 1990 1(1)
England and Wales
Citing:
Appeal fromRegina (Quintavalle) v Secretary of State for Health CA 18-Jan-2002
A cloned cell, a cell produced by cell nuclear replacement came within the definition of embryo under the Act. The Act required that fertilisation was complete.
Held: The act could be applied in a purposive way. The legislative policy was that . .
AdoptedRoyal College of Nursing of the United Kingdom v Department of Health and Social Security HL 2-Jan-1981
The court was asked whether nurses could properly involve themselves in a pregnancy termination procedure not known when the Act was passed, and in particular, whether a pregnancy was ‘terminated by a medical practitioner’, when it was carried out . .
CitedGrant v Southwestern and County Properties Ltd ChD 1974
The court had to decide whether a tape recording fell within the expression ‘document’ in the Rules of the Supreme Court.
Held: The furnishing of information had been treated as one of the main functions of a document, and the tape recording . .
CitedCabell v Markham 1945
In discussing the purposive approach to the interpretation of statutes, the judge held: ‘Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of . .
CitedChristopher Hill Ltd v Ashington Piggeries Ltd HL 1972
Mink farmers had asked a compounder of animal foods to make up mink food to a supplied formula.
Held: There was reliance as to the suitability of the ingredients only.
Lord Diplock said: ‘Unless the Sale of Goods Act 1893 is to be allowed . .
CitedRegina v Burstow, Regina v Ireland HL 24-Jul-1997
The defendant was accused of assault occasioning actual bodily harm when he had made silent phone calls which were taken as threatening.
Held: An assault might consist of the making of a silent telephone call in circumstances where it causes . .

Cited by:
CitedQuintavalle, Regina (on the Application of) v Human Fertilisation and Embryology Authority CA 16-May-2003
A licence was sought so that a couple could have a child who would be tissue typed to establish his suitability to provide an umbilical cord after his birth to help treat his future brother. A licence had been granted subject to conditions, and the . .
CitedKirin-Amgen Inc and others v Hoechst Marion Roussel Limited and others etc HL 21-Oct-2004
The claims arose in connection with the validity and alleged infringement of a European Patent on erythropoietin (‘EPO’).
Held: ‘Construction is objective in the sense that it is concerned with what a reasonable person to whom the utterance . .
CitedQuintavalle v Human Fertilisation and Embryology Authority HL 28-Apr-2005
The parents of a boy suffering a serious genetic disorder sought IVF treament in which any embryo would be tested for its pre-implantation genetic status. Only an embryo capable of producing the stem cells necessary to cure the boy would be . .
CitedRegina v Z (Attorney General for Northern Ireland’s Reference) HL 19-May-2005
The defendants appealed their convictions for being members of proscribed organisations. They were members of the ‘Real IRA’, but only the IRA was actually proscribed.
Held: The appeals failed. In construing an Act of Parliament it may be of . .
CitedKay v Commissioner of the Police of the Metropolis HL 26-Nov-2008
The claimant had been involved in a monthly cycle ride through central London which had continued for many years. The ride took place without any central organisation and without any route being pre-planned. They objected to being required to apply . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedHM Treasury v Ahmed and Others SC 27-Jan-2010
The claimants objected to orders made freezing their assets under the 2006 Order, after being included in the Consolidated List of suspected members of terrorist organisations.
Held: The orders could not stand. Such orders were made by the . .
CitedGaunt v OFCOM and Liberty QBD 13-Jul-2010
The claimant, a radio presenter sought judicial review of the respondent’s finding (against the broadcaster) that a radio interview he had conducted breached the Broadcasting Code. He had strongly criticised a proposal to ban smokers from being . .
CitedBritish Pregnancy Advisory Service v Secretary of State for Health Admn 14-Feb-2011
The claimant sought a declaration that the administration of an abortifacient drug was not ‘any treatment for the termination of pregnancy’ for the purposes of section 1 of the 1967 Act, allowing the piloting and possible adoption of early medical . .
CitedBritish Bankers Association, Regina (on The Application of) v The Financial Services Authority and Another Admn 20-Apr-2011
The claimant sought relief by way of judicial review from a policy statement issued by the defendants regarding the alleged widespread misselling of payment protection insurance policies, and the steps to be taken to compensate the purchasers. They . .
CitedRobertson v Swift SC 9-Sep-2014
Notice Absence did not Remove Right to Cancel
The defendant had contracted to arrange the removal of the claimant’s household goods on moving house. The claimant cancelled the contract, made at his housel, but refused to pay the cancellation fee, saying that the contract not having been made at . .
CitedTrail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council and Others CA 20-May-2013
The Fellowship had applied for orders upgrading public rights of way. The council rejected the applications saying that the digital mapping software used to repare the maps submitted were not compliant with the requirements of the legislation. They . .
CitedEnglish Bridge Union Ltd, Regina (on The Application of) v The English Sports Council and Others Admn 15-Oct-2015
The claimant Union claimed that the defendant should recognise the game of bridge as a sport. The defendant had adopted a definition from Europe which required physical activity, and the Union said that this was a misconstruction of its Royal . .
CitedTransport for London v Uber London Ltd Admn 16-Oct-2015
TFL sought a declaration as to the legality of the Uber taxi system. Otherwise unlicensed drivers took fares with fees calculated by means of a smartphone app. The Licensed Taxi drivers said that the app operated as a meter and therefore required . .
CitedTrail Riders Fellowship and Another, Regina (on The Application of) v Dorset County Council SC 18-Mar-2015
Objection had been made that a plan, used to register a right of way before it would disappear if un-registered, was to the wrong scale and that therefore the application was ineffetive.
Held: The Council’s appeal failed. The plan was too . .
CitedLittlewoods Ltd and Others v Commissioners for Her Majesty’s Revenue and Customs SC 1-Nov-2017
The appellants had overpaid under a mistake of law very substantial sums in VAT over several years. The excess had been repaid, but with simple interest and not compound interest, which the now claimed (together with other taxpayers amounting to 17 . .
CitedBarlow v Wigan Metropolitan Borough Council CA 1-Jun-2020
Presumption of dedication dates back.
The claimant tripped over a tree root raising a path in the park. The court was now asked whether the pathway through a public park, but which was not a public right of way, was maintainable at public expense as a highway governed by the 1980 Act. . .
CitedHuman Rights Commission for Judicial Review (Northern Ireland : Abortion) SC 7-Jun-2018
The Commission challenged the compatibility of the NI law relating to banning nearly all abortions with Human Rights Law. It now challenged a decision that it did not have standing to bring the case.
Held: (Lady Hale, Lord Kerr and Lord Wilson . .
CitedOwens v Owens SC 25-Jul-2018
W petitioned for divorce alleging that he ‘has behaved in such a way that [she] cannot reasonably be expected to live with [him]’. H defended, and the petition was rejected as inadequate in the behaviour alleged. She said that the section should be . .

Lists of cited by and citing cases may be incomplete.

Health Professions, Administrative, Constitutional

Leading Case

Updated: 11 November 2021; Ref: scu.179803

Spiers v Ruddy: PC 12 Dec 2007

Limits to Powers in Devolution Cases

Mr Spiers had complained as to the competency of two temporary sheriffs called to hear case against him, saying that the temporary nature of their appointments did not allow them to constitute an independent tribunal. He now complained that the subsequent delay in hearing his cases had prevented a fair trial.
Held: Lord Bingham of Cornhill referred to the need for reticence, given the Board’s restricted role in deciding devolution issues. It is not for the Board to comment on the test that is applied in fresh evidence appeals which do not raise a devolution issue. Its task is to identify the test where the complaint is of non-disclosure in violation of the article 6(1) right to a fair trial.

Lord Bingham of Cornhill
[2007] UKPC D2, [2008] HRLR 14, 2007 GWD 40-700, 2008 SLT 39, [2008] 2 WLR 608, [2008] 1 AC 873, 2008 SCCR 131
Bailii
Scotland Act 1998, European Convention on Human Rights 6(1)
Scotland
Citing:
CitedRegina v HM Advocate and The Advocate General for Scotland PC 28-Nov-2002
(The High Court of Justiciary) The prosecution had accepted that the matter had been the subject of unreasonable delay, but wished to continue. The defendant sought a plea in bar, on the basis that continuing would infringe his rights.
Held: . .
CitedAttorney-General’s Reference (No 2 of 2001) HL 11-Dec-2003
The house was asked whether it might be correct to stay criminal proceedings as an abuse where for delay. The defendants were prisoners in a prison riot in 1998. The case only came on for trial in 2001, when they submitted that the delay was an . .

Cited by:
CitedRutter, Regina (on the Application of) v The General Teaching Council for England Admn 1-Feb-2008
The applicant challenged a decision of disciplinary committee to go ahead with an allegation of misconduct after considerable delay by council and failure to abide by its own rules. After not receiving a notice of proceedings the applicant had . .
CitedMcInnes v Her Majesty’s Advocate SC 10-Feb-2010
The defendant complained that the prosecution had not disclosed the fact that a prosecution witness had convictions, and that had it been disclosed it would have undermined the prosecution. Other statements taken were not disclosed as had later . .
CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedHer Majesty’s Advocate v CAM ScSf 21-Nov-2012
The appellant challenged his conviction saying that there had been too long a delay in his trial. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Human Rights

Leading Case

Updated: 11 November 2021; Ref: scu.262253

Regina v Secretary of State for Foreign Affairs ex Parte the World Development Movement Ltd: Admn 10 Nov 1994

The Movement sought to challenge decisions of the Secretary of state to give economic aid to the Pergau Dam, saying that it was not required ‘for the purpose of promoting the development’ of Malaysia. It was said to be uneconomic and damaging. It was said by the defendant’s advisers to be an abuse of the aid system. The defendant said the plaintiff had no sufficient interest to mount a challenge. The plaintiff said that as a charity itself distributing aid, the diversion of such huge sums affected its own actions, and this amounted to a proper interest.
Held: The declaration was granted.
The issue of standing went as to jurisdiction, but there was nothing in the case law to deny the applicants such standing. Standing should be treated as a preliminary issue, taken in the legal and factual context of the whole case. As to that: ‘where, as here, the contemplated development is, on the evidence, so economically unsound that there is no economic argument in favour of the case, it is not, in my judgment, possible to draw any material distinction between questions of propriety and regularity on the one hand and questions of economy and efficiency of public expenditure on the other.’

Rose LJ, Scott Baker J
[1995] 1 WLR 386, [1994] EWHC Admin 1, [1995] 1 All ER 611, [1995] COD 211
Bailii
Overseas Development and Co operation Act 1980, Supreme Court Act 1981 31(3)
England and Wales
Citing:
CitedRegina v Inland Revenue Commissioners, ex parte the National Federation of Self-Employed and Small Businesses Ltd HL 9-Apr-1981
Limitations on HMRC discretion on investigation
The Commissioners had been concerned at tax evasion of up to 1 million pounds a year by casual workers employed in Fleet Street. They agreed with the employers and unions to collect tax in the future, but that they would not pursue those who had . .
CitedRegina v HM Inspector of Pollution and Ministry of Agriculture, Fisheries and Food, Ex Parte Greenpeace Ltd CA 30-Sep-1993
A campaigning organisation was challenging an official decision which, if stayed, would have adverse financial implications for a commercial company (British Nuclear Fuels PLC) which was not a party to the proceedings. Brooke J had refused a stay. . .
CitedRegina v Secretary of State for Social Services, Ex parte Child Poverty Action Group CA 1989
The applicants sought judicial review of the failures by the respondent in processing claims for benefits. They asked that there should be a declaration that the respondent had a duty to refer a claim to an adjudication officer as soon as it was . .
CitedRegina v Monopolies and Mergers Commission, ex parte Argyll Group plc CA 14-Mar-1986
Weighing Interest of Seeker of Judicial Review
The court recast in simpler language the provision in section 75 empowering the Secretary of State to make a merger reference to the Commission: ‘where it appears to him that it is or may be the fact that arrangements are in progress or in . .
CitedRegina v Secretary of State for Foreign and Commonwealth Affairs ex parte Rees-Mogg Admn 30-Jul-1993
The applicant, a former editor of the Times, sought judicial review of the decision by the respondent to ratify the EU Treaty (Maastricht), saying that it would increase the powers of the European Parliament without it having been approved by . .
CitedRegina v Her Majesty’s Treasury, Ex parte Smedley CA 19-Dec-1984
The applicant sought, as a taxpayer, to object to the proposed payment of andpound;121m to the European Community without an Appropriation Act, but under an Order in Council. The claim was that a draft Order in Council laid by the Treasury before . .
CitedRegina v Knuller (Publishing, Printing and Promotions) Ltd; Knuller etc v Director of Public Prosecutions HL 1972
The defendants were charged after pasting up in telephone booths advertisements for homosexual services. They published a magazine with similar advertisements. The House was asked to confirm the existence of an offence of outraging public decency. . .
CitedRegina v Secretary of State for the Environment ex parte Islington London Borough Council CA 19-Jul-1991
The court considered the proper range within which challenges to affidavit evidence given in judicial reviw proceedings should be kept. Dillon LJ said: ‘The . . argument is stated to have been that an applicant is not entitled to go behind an . .
CitedHanks and Others v Minister of Housing and Local Government 1963
A factor in a decision might be so insignificant that the failure to take it into account could not have materially affected the decision. There might be cases where the factor wrongly omitted was ‘insignificant’ and thus would not justify . .
CitedRegina v Inner London Education Authority, ex parte Westminster City Council 1986
A political purpose can taint an administrative decision with impropriety. . .
CitedRegina v Governor of Brixton Prison, ex parte Soblen CA 1963
Lord Denning MR discussed a decision to deport the applicant. The validity of the Minister’s act: ‘depends on the purpose with which the act is done.: ‘If it was done for an authorised purpose, it was lawful. If it was done professedly for an . .

Cited by:
CitedTweed v Parades Commission for Northern Ireland HL 13-Dec-2006
(Northern Ireland) The applicant sought judicial review of a decision not to disclose documents held by the respondent to him saying that the refusal was disproportionate and infringed his human rights. The respondents said that the documents were . .
CitedGood Law Project Ltd and Others, Regina (on Application of) v Secretary of State for Health and Social Care Admn 18-Feb-2021
Failure to Publish Contracts awards details
Challenge to alleged failures by the Secretary of State to comply with procurement law and policy in relation to contracts for goods and services awarded following the onset of the COVID-19 pandemic.
Held: The contracts had been awarded under . .

Lists of cited by and citing cases may be incomplete.

Judicial Review, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.245695

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 did not mean that the courts had, in effect, limitless powers to grant interlocutory injunctions whenever they thought it convenient to do so. As to the exceptional nature of the power to invoke the assistance of the civil courts in aid of the criminal law, there must be something more than infringement before the assistance of civil proceedings can be invoked and accorded for the protection or promotion of the interests of the inhabitants of the area.
Lord Diplock said: ‘Authorities about the jurisdiction of the courts to grant declaratory relief are legion. The power to grant a declaration is discretionary; it is a useful power and over the course of the last hundred years it has become more and more extensively used . . Nothing that I have to say is intended to discourage the exercise of judicial discretion in favour of making declarations of right in cases where the jurisdiction to do so exists. But that there are limits to the jurisdiction is inherent in the nature of the relief: a declaration of rights. The only kind of rights with which courts of justice are concerned are legal rights; and a court of civil jurisdiction is concerned with legal rights only when the aid of the court is invoked by one party claiming a right against another party, to protect or enforce the right or to provide a remedy against that other party for infringement of it, or is invoked by either party to settle a dispute between them as to the existence or nature of the right claimed. So for the court to have jurisdiction to declare any legal right it must be one which is claimed by one of the parties as enforceable against an adverse party to the litigation, either as a subsisting right or as one which may come into existence in the future conditionally on the happening of an event . . But the jurisdiction of the court is not to declare the law generally or to give advisory opinions; it is confined to declaring contested legal rights, subsisting or future, of the parties represented in the litigation before it and not of anyone else.’
As to the right to bring private prosecutions, they are ‘a useful constitutional safeguard against capricious, corrupt or biased failure or refusal of those authorities to prosecute offenders against the criminal law.’
Lord Wilberforce noted that the right to bring a private prosecution was ‘a valuable constitutional safeguard against inertia or partiality on the part of authority.’ and ‘That it is the exclusive right of the Attorney-General to represent the public interest – even where individuals might be interested in a larger view of the matter – is not technical, not procedural, not fictional. It is constitutional.’

Lord Wilberforce, Lord Diplock
[1978] AC 435, [1977] UKHL 5, [1977] 3 All ER 70
Bailii
Supreme Court of Judicature (Consolidation) Act 1925, Post Office Act 1953 58(1) 68, Telegraph Act 1863 45
England and Wales
Citing:
CitedAttorney General of The Dutchy, At The Relation of Mr Vermuden v Sir John Heath nd Others 9-Jul-1690
The Attorney General of the Dutchy Court exhibits an information in behalf of one part-owner of coal-mines, against the other ; outlawry in the relator is a good plea.
In a relator action, the King’s name is only made use of by the form of the . .
CitedShore v Wilson 1842
Parke B said: ‘In the first place, there is no doubt that not only where the language of the instrument is such as the Court does not understand, it is competent to receive evidence of the proper meaning of that language, as when it is written in a . .
CitedEx Parte Newton 19-Apr-1855
The Attorney General having refused his fiat for a writ of error to a defendant convicted of a misdemeanour Held, that in a proper case, the fiat was due ex debito justitia; but that the Attorney General was to determine, on his owri responsibility, . .
CitedLondon County Council v Attorney General 1901
Lord MacNaghten said: ‘Income tax, if I may be pardoned for saying so, is a tax on income. It is not meant to be a tax on anything else.’
Lord Macnaghten said of a relator action: ‘The initiation of the litigation, and the determination of the . .
CitedTriefus and Co Ltd v Post Office CA 1957
The plaintiff sought damages after the defendant lost two mail packets.
Held: Acceptance of a postal packet by the Post Office for transmission to the addressee gives rise to no contractual rights. The court analysed the history of legislation . .
CitedAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .
CitedAttorney-General v The Ironmongers’ Company Betton’s Charity 14-Feb-1840
Bequest of residue to a company, to apply the interest of a moiety ‘unto the redemption of British slaves in Turkey or Barbary,’ one-fourth to charity schools in London and its suburbs; and in consideration of the care and pains of the company, the . .

Cited by:
CitedAttorney-General v Able and Others QBD 28-Apr-1983
The Attorney General sought a declaration as to whether it would be the crime of aiding and abetting or counselling and procuring suicide, to distribute a booklet published by the respondent which described various effective ways of committing . .
CitedLegal and General Assurance Society Ltd v CCA Stationery Ltd ChD 12-Dec-2003
The claimant had managed a pension scheme for the respondent company. It now challenged a finding of maladministration of the scheme, with respect to the methods of calculation of discounts applicable to those leaving the scheme.
Held: Since . .
CitedStoke-On-Trent City Council v B and Q (Retail) Ltd HL 1984
The defendants had been trading on Sundays in breach of s.47 of the Shops Act 1950, which, by s.71(1) imposed on every local authority the duty to enforce within their district the provisions of that Act. Parliament has given local authorities a . .
CitedIn Re Z (Local Authority: Duty) FD 3-Dec-2004
Mrs Z suffered a terminal disease, and sought to travel to Switzerland supported and assisted by her husband, so that she could terminate her life. She appealed an injunction obtained by the authority to prevent her leaving.
Held: The . .
CitedBermuda 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. . .
ConsideredMeadows Indemnity Co Ltd v The Insurance Corporation of Ireland plc and Another CA 1989
A claim was made for declaratory relief.
Held: The Claimant, a re-insurer, did not have locus to claim a declaration that the main insurer could avoid the main contract of insurance, to which the Claimant was not a party. The court considered . .
CitedCabvision Ltd v Feetum and others CA 20-Dec-2005
The company challenged the appointment of administrative receivers, saying there had been no insolvency.
Held: No question arises of a derivative action arose here. The claimant had standing to apply for declaratory relief since they were . .
CitedIn Re S (Hospital Patient: Court’s Jurisdiction) CA 6-Mar-1995
The carer of S sought a declaration that S’s wife and son were not entitled to remove him to Norway.
Held: The court may try an issue as to the patient’s care as between rival claimants as carers. It should not tightly restrict list of carers . .
CitedOxfordshire County Council v Oxford City Council and others HL 24-May-2006
Application had been made to register as a town or village green an area of land which was largely a boggy marsh. The local authority resisted the application wanting to use the land instead for housing. It then rejected advice it received from a . .
CitedJones v Whalley HL 26-Jul-2006
The appellant had assaulted the respondent. He had accepted a caution for the offence, but the claimant had then pursued a private prosecution. He now appealed refusal of a stay, saying it was an abuse of process.
Held: The defendant’s appeal . .
CitedBrown v HM Queen Elizabeth, the Queen Mother, the Executors of the Estate of and others FD 5-Jul-2007
The plaintiff sought the unsealing of the wills of the late Queen Mother and of the late Princess Margaret, claiming that these would assist him establishing that he was the illegitimate son of the latter.
Held: The application was frivolous. . .
CitedEwing, Regina (on the Application of) v Davis Admn 2-Jul-2007
The court considered whether the District Judge had been correct to refuse to issue summonses for private prosecutions where there was a suggestion that only a private dispute at stake.
Held: It ‘never was any requirement that a private . .
CitedOffice of Fair Trading v Foxtons Ltd ChD 17-Jul-2008
Complaint was made that the Foxtons standard terms of acting in residential lettings were unfair. Foxtons objected to the jurisdiction of the Claimant to intervene.
Held: On a challenge to an individual contract, the court would be able to see . .
CitedBirmingham City Council v Shafi and Another CA 30-Oct-2008
The Council appealed a finding that the court did not have jurisdiction to obtain without notice injunctions to control the behaviour of youths said to be creating a disturbance, including restricting their rights to enter certain parts of the city . .
CitedFeetum v Levy CA 2006
Jonathan Parker LJ discussed the granting of declarations: ‘things have indeed moved on since the Meadows case was decided; and the courts should not nowadays apply such a restrictive meaning to the passage in Lord Diplock’s speech in Gouriet’s . .
CitedRolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
CitedRolls-Royce plc v Unite the Union CA 14-May-2009
The parties disputed whether the inclusion of length of service within a selection matrix for redundancy purposes would amount to unlawful age discrimination. The court was asked whether it was correct to make a declaratory judgment when the case . .
CitedScopelight Ltd and Others v Chief of Police for Northumbria CA 5-Nov-2009
The claimant sought return of items removed by the defendants under the 1984 Act. A decision had been made against a prosecution by the police. The police wished to hold onto the items to allow a decision from the second defendant.
Held: The . .
CitedRollins, Regina v SC 28-Jul-2010
The court was asked whether the Financial Services Authority had a power to prosecute money laundering offences under the 2002 Act, or whether, as contended by the defendant, its powers were limited to sections under the 2000 Act.
Held: The . .
CitedGujra, 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 . .

Lists of cited by and citing cases may be incomplete.

Employment, Litigation Practice, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.181965

Leonesio v Ministero Della Agricoltura E Foreste: ECJ 17 May 1972

leonisioECJ197205

ECJ Measures Adopted By An Institution – 1. A community regulation has direct effect and is, as such, capable of creating individual rights which national courts must protect.
Pecuniary rights against the state, conferred by such a regulation, arise when the conditions set out in the regulation are complied with and it is not possible at a national level to render the exercise of them subject to implementing provisions other than those which might be required by the regulation itself.
2. So as to apply with equal force with regard to nationals of all the member states, community regulations become part of the legal system applicable within the national territory, which must permit the direct effect provided for in article 189 to operate in such a way that reliance thereon by individuals may not be frustrated by domestic provisions or practices.
Budgetary provisions of a member state cannot therefore hinder the direct applicability of the community provision and consequently of the exercise of individual rights created by such a provision.
3. Once all the conditions laid down in regulations nos 1975/69 and 2195/69 were fulfilled, those regulations conferred on farmers a right, which national courts must protect, to payment of the slaughtering subsidy by the member state to which they belonged; such rights could be exercised in each case at the end of the period of two months following the establishment of the proof of slaughter as provided in article 10 of regulation no 2195/69. As from that time, the abovementioned regulations give the farmer the right to require payment of the subsidy without that member state’ s being able to rely on arguments based on any legislative provisions or administrative practices to withhold such payment.

[1972] ECR 287, R-93/71, [1972] EUECJ R-93/71
Bailii

European, Constitutional

Leading Case

Updated: 10 November 2021; Ref: scu.214165

G and C Kreglinger v The New Patagonian Meat and Cold Storage Company: HL 20 Nov 1913

Mortgagor’s collateral dvantage is not a clog

The appellant woolbrokers had lent the respondent andpound;10,000 with a floating charge over its undertaking. The loan agreement provided that, for five years, the appellants would have first refusal over all sheepskins sold by the company. The company paid off the loan, but the appellants claimed that they were entitled to continue to exercise their right of first refusal.
Held: The right of first refusal not part of the mortgage transaction; but was a collateral contract entered into as a condition of the company obtaining the loan. The appellants could therefore entitled to enforce it. Whilst courts are loathe to interfere with freedom of contract, they will intervene where evidence showed that terms imposed by a mortgagee are unconscientious. To do so, the courts will consider both the form and substance of the transaction.
Lord Parker of Waddington discussed the survival of the rule against a clog on an equity of redemption, saying that it was not objectionable for a mortgage to confer a collateral advantage upon a mortgagee: ‘The last of the usury laws was repealed in 1854, and thenceforward there was, in my opinion, no intelligent reason why mortgages to secure loans should be on any different footing from other mortgages. In particular, there was no reason why the old rule against a mortgagee being able to stipulate for a collateral advantage should be maintained in any form or with any modification. Borrowers of money were fully protected from oppression by the pains always taken by the Court of Chancery to see that the bargain between borrower and lender was not unconscionable. Unfortunately, at the time when the last of the usury laws was repealed, the origin of the rule appears to have been more or less forgotten, and the cases decided since such repeal exhibit an extraordinary diversity of judicial opinion on the subject. It is little wonder that, with the existence in the authorities of so many contradictory theories, persons desiring to repudiate a fair and reasonable bargain have attempted to obtain the assistance of the Court in that behalf. My Lords, to one who, like myself, has always admired the way in which the Court of Chancery succeeded in supplementing our common law system in accordance with the exigencies of a growing civilization, it is satisfactory to find, as I have found on analysing the cases in question, that no such attempt has yet been successful. In every case in which a stipulation by a mortgagee for a collateral advantage has, since the repeal of the usury laws, been held invalid, the stipulation has been open to objection, either (1) because it was unconscionable, or (2) because it was in the nature of a penal clause clogging the equity arising on failure to exercise a contractual right to redeem, or (3) because it was in the nature of a condition repugnant as well to the contractual as to the equitable right.’ and
‘The nature of the equitable right [to redeem] is so well known that, upon a mortgage in the usual form to secure a money payment on a certain day, it must be taken to be a term of the real bargain between the parties that the property shall remain redeemable in equity after failure to exercise the contractual right. Any fetter or clog imposed by the instrument of mortgage on this equitable right may properly be regarded as a repugnant condition and as such invalid. There are, however, repugnant conditions which cannot be regarded as mere penalties intended to deter the exercise of the equitable right which arises when the time for the exercise of the contractual right has gone by, but which are repugnant to the contractual right itself. A condition to the effect that if the contractual right is not exercised by the time specified the mortgagee shall have the option of purchasing the mortgaged property may properly be regarded as a penal clause. It is repugnant only to the equity and not to the contractual right itself. But a condition that the mortgagee is to have such an option for a period which begins before the time for the exercise of the equitable right has arrived, or which reserves to the mortgagee any interest in the property after the exercise of the contractual right, is inconsistent not only with the equity but with the contractual right itself, and might, I think, be held invalid for repugnancy even in a Court of Law.’
As to the doctrine of precedent: ‘To follow previous authorities, so far as they lay down principles, is essential if the law is to be preserved from becoming unsettled and vague. In this respect previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisprudence such as ours than in systems where the paramount authority is that of a code. When a previous case has not laid down any principle, but has merely decided that a particular set of facts illustrates an existing rule, there are few more fertile sources of fallacy than to search in it for what is simply resemblances in circumstances, and to erect a previous decision into a governing precedent merely on this account. To look for anything except the principle established or recognized by previous decisions is really to weaken and not to strengthen the importance of precedent. The consideration of cases which turn on particular facts may often be useful for edification, but it can rarely yield authoritative guidance.’ The evolving nature of the equitable jurisdiction is ‘to mould the rules which they apply in accordance with the exigencies at the time’.
Lord Parker explained the decision in Bradley v Carritt: ‘The real question, in my opinion, was whether it [the clause in question] was inconsistent with or repugnant to the contractual right of the mortgagee [quaere, mortgagor] to have his property restored unfettered if he paid the money secured with interest as provided in the agreement, and the consequential equitable right to have the property so restored if he paid his money with interest and costs at any time. On this point there was room for a difference of opinion . . There is really no difficulty in the decision itself. It is merely to the effect that the case was within the principles of Noakes v Rice. Lords Macnaghten, Davey, and Robertson all thought that if the stipulations in question were binding after redemption the mortgagor would not get back his property intact; in other words, that the stipulation was repugnant both to the contractual right and the equity.’
Lord Mersey agreeing, said that the equitable doctrine prohibiting the imposition of a clog on the mortgagor’s right to redeem is ‘like an unruly dog, which, if not securely chained to its own kennel, is prone to wander into places where it ought not to be’.
Viscount Haldane, Lord Chancellor, said: ‘the other and wider principle remains unshaken, that it is the essence of a mortgage that in the eye of a Court of Equity it should be a mere security for money, and that no bargain can be validly made which will prevent the mortgagor from redeeming on payment of what is due, including principal, interest and costs. He may stipulate that he will not pay off his debt, and so redeem the mortgage, for a fixed period. But whenever the right to redeem arises out of the doctrine of equity, he is precluded from fettering it. This principle has become an integral part of our system of jurisprudence and must be faithfully adhered to.’
The issue for decision was: ‘What was the true character of the transaction? Did the appellants make a bargain such that the right to redeem was cut down, or did they simply stipulate for a collateral undertaking, outside and clear of the mortgage, which would give them an exclusive option of purchase of the sheepskins of the respondents. The question is in my opinion not whether the two contracts were made at the same moment and evidenced by the same instrument, but whether they were in substance a single and undivided contract or two distinct contracts.’ The agreement for a right to purchase the respondent’s sheepskins was a collateral bargain ‘the entering into which was a preliminary and separable condition of the loan’.

Viscount Haldane, Lord Parker
[1914] AC 25, [1913] UKHL 1
Bailii
England and Wales
Citing:
CitedNoakes and Co Ltd v Rice HL 17-Dec-1901
Rule Against Clog on equity of Redemption
A mortgage of a leasehold public house contained a covenant with the mortgagee, a brewery, that the mortgagor and his successors in title would not, during the continuance of the leasehold term and whether or not any money should be owing on the . .
ExplainedBradley v Carritt HL 11-May-1903
Shares in a tea company had been mortgaged to secure a loan from a broker on terms that the mortgagor would seek to ensure that the mortgagee should thereafter have sale of the company’s teas. The mortgage contained a covenant that, if the company . .

Cited by:
CitedRegina v Naviede CACD 21-Mar-1997
The defendant appealed from his conviction for dishonesty. He said that he should have allowed hi to represent himself as to certain aspect of his case, but to have legal representation for others.
Held: The judge was right to reject such a . .
AppliedCityland and Property (Holdings) Ltd v Dabrah 1968
The mortgage secured a debt of pounds 2,900 owing by the mortgagor to the mortgagee. The mortgagor covenanted to pay the mortgagee pounds 4,553 by monthly instalments over a six year period. The return to the mortgagee was in the form of a premium . .
CitedBrighton and Hove City Council v Audus ChD 26-Feb-2009
The claimant was the proprietor of a fourth legal charge on a title. It sought a declaration that a second charge in favour of the defendant was void as a clog on the proprietor’s equity of redemption. An advance secured by a first charge, also in . .
CitedWarnborough Ltd v Garmite Ltd CA 5-Nov-2003
Warnborough (W) sold real property to Garmite (G), leaving the purchase price outstanding but secured by a mortgage in favour of W. G also granted W an option to repurchase the property. The issue was whether the option to repurchase was ‘a clog on . .
CitedWarnborough Ltd v Garmite Ltd ChD 12-Jan-2006
The claimant sought specific performance under a contract for sale of two leasehold properties. The defendant claimed inter alia that the agreement worked as a clog on the equity of the properties. . .
CitedJones v Morgan CA 28-Jun-2001
The claimant appealed against an order refusing him enforcement an agreement for the purchase of a one half share in a property. The judge had found the agreement to be unconscionable.
Held: The appeal was dismissed. The judge had wrongly . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Contract, Equity

Leading Case

Updated: 09 November 2021; Ref: scu.189952

HP Bulmer Ltd and Another v J Bollinger Sa and others: CA 22 May 1974

Necessity for Reference to ECJ

Lord Denning said that the test for whether a question should be referred to the European Court of Justice is one of necessity, not desirability or convenience. There are cases where the point, if decided one way, would shorten the trial greatly. But if decided the other way, it would mean that the trial would have to go its full length. It would not in those circumstances be ‘necessary’ for a preliminary ruling to be sought. When the facts are investigated, it might turn out to have been quite unnecessary. For this reason, Lord Denning concluded that as a rule it is only after the facts are ascertained that a determination can be made that a reference is necessary.
Denning described the effect of the EC Treaty: ‘The first and fundamental point is that the Treaty concerns only those matters which have a European element, that is to say, matters which affect people or property in the nine countries of the Common Market besides ourselves. The Treaty does not touch any of the matters which concern solely the mainland of England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back. Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.’
. . And: ‘ In the task of interpreting the Treaty, the English Judges are no longer the final authority. They no longer carry the law in their breasts. They are no longer in a position to give rulings which are of binding force. The supreme tribunal for interpreting the Treaty is the European Court of Justice, at Luxembourg. Our Parliament has so decreed.’
Stephenson LJ discussed article 177 saying: ‘(i) The rulings which the European Court has jurisdiction to give under Article 177(1) are not strictly ‘preliminary’. They do not have to be given ‘in limine’ before the Court of the Member State crosses the threshold and begins to hear a dispute, but they can be given at any time before the Court finishes hearing the dispute by giving judgment. The ruling is in that sense ‘prejudicial’, not necessarily preliminary, though it may be.
(ii) Article 177(2) confers a power, whereas Article 177(3) imposes an obligation. A lower Court of a Member State ‘may’ request a ruling, a final Court ‘shall’. The contrast in the language is as clear as in the section of the English statute which this Court construed in Re Baker (1890) 44 Ch. Div. 262, and has the same effect: the lower Court is trusted with a discretion, the final Court is not. All attempts to blur the distinction between the power of the one and the duty of the other when a question is raised under Article 177(1) break down on the different wording of Article 177(2) and (3). Section 2(1) of the European Communities Act 1972 distinguishes powers from obligations, and so by this wording does Article 177, by whatever canon of construction it is interpreted. The European Court has always recognised that distinction; e.g. in Da Costa en Schaake N.V. and Others v. Nederlande Belasting -administratie (1963) 2 C.M.L.R. 224, 237; and has recently emphasised it and described the power given to the national Courts by Article 177(2) as conferring on them ‘the widest discretion’, which no domestic Court of Appeal can fetter: Firma Rheinmuhlen Dusseldorf v. Enfuhr und Vorratsstelle fur Getreide und Futtermittal, case 166/73 shortly reported in The Times Newspaper of 16th February 1974; to which my Lord has already referred,
(iii) The only questions which the Courts of a Member State can, or in some cases must, refer to the European Court are questions of law within Article 177(1) on which decisions are necessary to enable them to give judgment. If they consider that they can give judgment in the dispute in which the question is raised without deciding the question, they need not and indeed must not trouble the European Court by requesting a ruling or bringing the matter before it. Section 3(1) of the 1972 Act recognises that questions within Article 177(1) are questions of law and may be for determination by our Courts without referring them to the European Court. That is how the Courts of Member States have rightly proceeded, including English Judges, Mr. Justice Whitford among them: Lerose Ltd. v. Hawick Jersey International Ltd. (1972) 12 C.M.L.R. 83.’

Lord Denning MR, Stamp, Stephenson LJJ
[1974] EWCA Civ 14, [1974] 2 All ER 1226, [1974] 3 WLR 202, [1974] Ch 401
Bailii
Regulation 816/76 30, Regulation 817/70 12, European Community Act 1972 2(1) 83, Treaty of Rome 177
England and Wales
Citing:
CitedVine Products Ltd v Mackenzie and Co Ltd (the Sherry Case) ChD 1969
Assorted sherry producers and shippers to write to producers and importers of ‘British Sherry’ asking them to stop using the word ‘sherry’ other than in relation to wines emanating from the Jerez district of Spain. Those producers and importers to . .
CitedBollinger v Costa Brava Wine Co Ltd 1960
Intruders into the market brought into England a wine somewhat similar to Champagne. It had been produced in the Costa Brava district of Spain. They marketed it under the name ‘Spanish Champagne’. The French growers and shippers brought an action to . .
CitedJohn Walker and Sons Ltd v Henry Ost and Co Ltd ChD 1970
The plaintiff whisky distiller claimed in passing-off against the defendant who supplied bottles and labels to a distiller in Ecuador.
Held: An injunction was granted. Having cited from Singer v Loog, the court added: ‘I would be slow to . .
CitedDa Costa En Schaake Nv, Jacob Meijer Nv, Hoechst-Holland Nv v Netherlands Inland Revenue Administration ECJ 27-Mar-1963
ECJ (Preliminary Ruling ) 1. The obligation imposed by the third paragraph of article 177 of the EEC Treaty upon national courts or tribunals of last instance may be deprived of its purpose by reason of the . .
CitedVan Gend En Loos v Administratie Der Belastingen ECJ 5-Feb-1963
LMA The Dutch customs authorities had introduced an import charge in breach of Art.12 [Art.25] EC. This Article prohibits MS from introducing between themselves any new customs duties on imports or exports or any . .
CitedHessische Knappschaft v Maison Singer And Sons ECJ 9-Dec-1965
Procedure – 1. Since the right to determine the questions to be brought before the court devolves upon the court or tribunal of the member state alone, the parties may not change their tenor or have them declared to be without purpose.
2. The . .
CitedFratelli Grassi Fu Davide v Italian Finance Administration. (Questions Referred To The Court For A Preliminary Ruling) ECJ 15-Jun-1972
ECJ According to article 177 of the Treaty it is for the national court and not the parties to the main action to bring a matter before the court of justice.
Since the power to formulate the questions to be . .

Cited by:
CitedCommissioners of Customs and Excise v Aps Samex 1983
It is generally right for the court to find the facts before referring questions of law to the European Court of Justice.
Bingham J restated the four requirement sfor a reference set out in Bulmer, saying: ‘(1) Will the point be substantially . .
CitedFisher and Others v Revenue and Customs FTTTx 14-Aug-2014
FTTTx Income Tax – Anti-avoidance – transfer of assets abroad code – s739 ICTA 1988 – appellants were shareholders in UK bookmaker which transferred its telebetting business to Gibraltar – purpose of avoiding . .
AppliedCoast Telecom Ltd v Revenue and Customs FTTTx 11-Apr-2012
Procedure – application for stay pending determination of references to CJEU – whether First-tier Tribunal bound by Mobilx – yes – whether determination of references would materially assist determination of appeal – no – whether expedient to order . .
CitedThe Number (UK) Ltd and Another v Office of Communications CAT 24-Nov-2008
. .
CitedVehicle and Operator Services Agency v Jones (Nell) Admn 5-Oct-2005
The Agency appealed against dismissal of its allegation that the defendant had wrongfully withdrawn his tachograph record. He had lifted the top of the tachograph which had the effect if disengaging the marker without actually removing the record . .
CitedFage UK Ltd and Another v Chobani UK Ltd and Another CA 28-Jan-2014
Lewison LJ said: ‘Appellate courts have been repeatedly warned, by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applies not only to findings of primary fact, but also to . .

Lists of cited by and citing cases may be incomplete.

European, Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.262729

Feather v The Queen: 1865

Mr Feather had invented way of protecting ships against shot and obtained an exclusive patent. The Crown then had a ship constructed in a way that infringed the patent. As patentee Mr Feather asked for recompense; by petition of right he asked for pounds 10,000 as compensation for the damage he had suffered. Much of the case was concerned with whether an exclusive patent granted by the Crown barred free use by the Crown of the method revealed by the patent.
Held: It did not. As to whether a petition of right could be used against the Crown in respect of the alleged wrong, the court (obiter) held that Tobin was correct.
Cockburn CJ said: ‘Now, apart altogether from the question of procedure, a petition of right in respect of a wrong, in the legal sense of the term, shews no right to legal redress against the Sovereign. For the maxim that the King can do no wrong applies to personal as well as to political wrongs; and not only to wrongs done personally by the Sovereign, if such a thing can be supposed to be possible, but to injuries done to a subject by the authority of the Sovereign. For, from the maxim that the King cannot do wrong it follows, as a necessary consequence, that the King cannot authorize wrong. For to authorize a wrong to be done is to do a wrong; inasmuch as the wrongful act, when done, becomes, in law, the act of him who directed or authorized it to be done. It follows that a petition of right which complains of a tortious act by the Crown, or by a public servant by the authority of the Crown, discloses no matter of complaint which can entitle the petitioner to redress. As in the eye of the law no such wrong can be done, so, in law, no right to redress can arise; and the petition, therefore, which rests on such a foundation falls at once to the ground. Let it not, however, be supposed that a subject sustaining a legal wrong at the hands of the minister of the Crown is without a remedy. As the Sovereign cannot authorize wrong to be done, the authority of the Crown would afford no defence to an action brought for an illegal act committed by an officer of the Crown.’ and

‘It is established on the best authority that, in construing grants from the Crown, a different rule of construction prevails from that by which grants from one subject to another are to be construed. In a grant from one subject to another, every intendment is to be made against the grantor, in favour of the grantee, in order to give full effect to the grant; but in grants from the Crown an opposite rule prevails. Nothing passes except that which is expressed, or which is matter of necessity and unavoidable intendment in order to give effect to the plain and undoubted intention of the grant. And in no species of grant does this rule of construction more especially obtain than in grants which emanate from and operate in derogation of, the prerogative of the Crown.’

Cockburn CJ
(1865) 6 B and S 257
England and Wales
Citing:
CitedTobin v The Queen 1864
The Commander of a Queen’s ship, employed in the suppression of the slave trade on the coast of Africa, seized a schooner belonging to the suppliant, which he suspected of being engaged in slave traffic. It being inconvenient to take the ship to . .

Cited by:
CitedRoberts v Swangrove Estates Ltd and Another ChD 14-Mar-2007
The court heard preliminary applications in a case asserting acquisition of land by adverse possession, the land being parts of the foreshore of the Severn Estuary.
Held: A person may acquire title to part of the bed of a tidal river by . .
CitedCrown Estate Commissioners v Roberts and Another ChD 13-Jun-2008
The defendant claimed ownership as Lord Marcher of St Davids of historical rights in foreshores in Pembrokeshire. The claimants sought removal of his cautions against first registration.
Held: Lewison J explored the history of manorial . .

Lists of cited by and citing cases may be incomplete.

Intellectual Property, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.267402

Martin v Her Majesty’s Advocate: SC 3 Mar 2010

The claimant challenged the law extending the power of Sheriffs sitting alone to impose sentences of up to one year.
Held: The defendants’ appeal failed (Lord Rodger and Lord Kerr dissenting). The change was within the power of the Scottish Parliament and the challenge failed. The section set out to contribute to the reform of summary justice by reducing pressure on the higher courts. The jurisdiction of a Sheriff was defined by the penalties which he can impose and his powers are quintessentially matter of Scots criminal law. As a rule of Scots criminal law, it did not relate to a reserved matter within the meaning of s.29(2)(b) of the Scotland Act 1998. It was a change in procedure.
Lord Walker said that the expression ‘relates to’ in section 29(2)(b) and (3) was ‘familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provision’s purpose and effect, reinforces that.’

Lord Hope (Deputy President), Lord Rodger, Lord Walker, Lord Brown, Lord Kerr
[2010] UKSC 10, UKSC 2009/0127, 2010 SCL 476, 2010 SLT 412, 2010 SC (UKSC) 40
Bailii, Times, SC, SC Summ, Bailii Summary
Scotland Act 1998 29(2)(b), Criminal Proceedings etc (Reform)(Scotland) Act 2007 45
Scotland
Citing:
CitedLogan and Another v Procurator Fiscal HCJ 2-Jul-2008
The appellant challenged sentences for driving whilst disqualified. The defendant questioned the extent of the legislative competence of the Scottish Parliament under judicial scrutiny on grounds other than compliance with Convention rights. . .

Cited by:
CitedJude v Her Majesty’s Advocate SC 23-Nov-2011
The Lord Advocate appealed against three decisions as to the use to be made of interviews where the detainees had not been given access to lawyers. In each case the prosecutor now appealed after their convictions had been overturned in the light of . .
CitedImperial Tobacco Ltd v The Lord Advocate SC 12-Dec-2012
The claimant company said that the 2010 Act was outside the competence of the Scottish Parliament insofar as it severely restricted the capacity of those selling cigarettes to display them for sale. They suggested two faults. First, that the subject . .
CitedLocal Government Byelaws (Wales) Bill 2012 – Reference By The Attorney General for England and Wales SC 21-Nov-2012
Under the 1998 and 2006 Acts, the Welsh Assembly was empowered to pass legislation subject to confirmation by the English Parliament Secretary of State. The Local Government Byelaws (Wales) Bill 2012 was passed by the Assembly and purported to . .
CitedRecovery of Medical Costs for Asbestos Diseases (Wales) Bill (Reference By The Counsel General for Wales) SC 9-Feb-2015
The court was asked whether the Bill was within the competence of the Welsh Assembly. The Bill purported to impose NHS charges on those from whom asbestos related damages were recovered.
Held: The Bill fell outside the legislative competence . .
CitedThe Christian Institute and Others v The Lord Advocate SC 28-Jul-2016
(Scotland) By the 2014 Act, the Scottish Parliament had provided that each child should have a named person to monitor that child’s needs, with information about him or her shared as necessary. The Institute objected that the imposed obligation to . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Criminal Sentencing

Leading Case

Updated: 09 November 2021; Ref: scu.402004

Total Network Sl v Revenue and Customs: HL 12 Mar 2008

The House was asked whether an action for unlawful means conspiracy was available against a participant in a missing trader intra-community, or carousel, fraud. The company appealed a finding of liability saying that the VAT Act and Regulations contained the entire regime.
Held: Criminal conduct at common law or by statute can constitute unlawful means in an unlawful means conspiracy. The protection of the Bill of Rights is available to everyone. Fraudsters and cheats are as much entitled to be protected against the levying of taxes without the authority of Parliament as anyone else. The function of an action of damages is to provide a remedy for interests that are recognised by the law as entitled to protection
‘The statute makes no provision for the recovery of VAT from someone who is not a taxable person within the meaning of section 3. There is, it may be said, a gap in the statute. But this does not mean that the Commissioners have suffered a loss for which they can sue in damages. All that can be said is that payment was made to Alldech which ought not to have been made. It is an amount that can be recovered as a debt due to the Crown from Alldech. It does not change its character as a debt due to the Crown because, when it is sought to be recovered from someone else, it is described as damages. ‘
Lord Scott said: ‘there is, in my opinion, nothing whatever in the Bill of Rights point. It is true that Total are not taxable under the statutory VAT scheme in respect of any of the pleaded transactions, but the claim against Total is not a claim for tax. It is a claim for damages, for loss, caused by the fraudulent conspiracy.’

Lord Hope of Craighead, Lord Scott of Foscote, Lord Walker of Gestingthorpe, Lord Mance, Lord Neuberger of Abbotsbury
[2008] UKHL 19, [2008] BPIR 699, [2008] 2 WLR 711, [2008] STI 938, [2008] 1 AC 1174, [2008] STC 644, [2008] BVC 340, [2008] BTC 5216
Bailii, HL
Value Added Tax Act 1994 1(1) 7, Bill of Rights 1688 4
England and Wales
Citing:
CitedTotal Network Sl v Customs and Excise Commissioners CA 31-Jan-2007
The defendants suspected a carousel VAT fraud. The defendants appealed a finding that there was a viable cause of action alleging a ‘conspiracy where the unlawful means alleged is a common law offence of cheating the public revenue’. The defendants . .
CitedGosling v Veley 1850
Wilde CJ said: ‘The rule of law that no pecuniary burden can be imposed upon the subjects of this country, by whatever name it may be called, whether tax, due, rate, or toll, except under clear and distinct legal authority, established by those who . .
CitedAttorney-General v Wilts United Dairies Ltd CA 1921
The Food Controller had been given power under the Defence of the Realm Acts to regulate milk sales. In granting the dairy a licence to buy milk in Cornwall, Devon, Dorset and Somerset, the Food Controller required the Dairy to pay 2d. per imperial . .
CitedAttorney-General v Wilts United Dairies Ltd HL 1922
The House heard an appeal by the Attorney-General against a finding that an imposition of duty on milk sales was unlawful.
Held: The appeal failed. The levy was unlawful. Lord Buckmaster said: ‘Neither of those two enactments enabled the Food . .
CitedInland Revenue Commissioners v Hambrook 1956
The Revenue claimed for loss resulting from its being deprived of the services of a taxing officer due to a vehicle accident.
Held: The action was dismissed. An action for that kind of loss did not lie where its relationship was with an . .
CitedAutologic Holdings Plc and others v Commissioners of Inland Revenue HL 28-Jul-2005
Taxpayer companies challenged the way that the revenue restricted claims for group Corporation Tax relief for subsidiary companies in Europe. The issue was awaiting a decision of the European Court. The Revenue said that the claims now being made by . .
CitedLonrho 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, . .
CitedLonrho Ltd v Shell Petroleum Co Ltd (No 2) CA 6-Mar-1981
Lonrho had supplied oil to Southern Rhodesia. It gave up this profitable business when the UK imposed sanctions on that country. It claimed that Shell had conspired unlawfully to break the sanctions, thereby prolonging the illegal regime in Southern . .
CitedMarrinan v Vibart CA 1962
The court considered an action in the form an attempt to circumvent the immunity of a witness at civil law by alleging a conspiracy.
Held: The claim was rejected. The court considered the basis of the immunity from action given to witnesses. . .
CitedCrofter Hand Woven Harris Tweed Company Limited v Veitch HL 15-Dec-1941
The plaintiffs sought an interdict against the respondents, a dockers’ union, who sought to impose an embargo on their tweeds as they passed through the port of Stornoway.
Held: A trade embargo was not tortious because the predominant purpose . .
CitedCrofter Hand Woven Harris Tweed Co Ltd v Veitch SCS 1940
Lord Justice Clerk Aitchison said: ‘When the end of a combination is not a crime or a tort in the accepted sense, and the means are not in the accepted sense criminal or tortious – cases which give rise to no difficulty – the question always is – . .
CitedAllen v Flood HL 14-Dec-1898
Tort of Malicicious Inducement not Committed
Mr Flood had in the course of his duties as a trade union official told the employers of some ironworkers that the ironworkers would go on strike, unless the employers ceased employing some woodworkers, who the ironworkers believed had worked on . .
CitedSorrell v Smith HL 1925
Torts of Conspiracy by Unlawful Means
The plaintiff had struck the first blow in a commercial battle between the parties, and the defendant then defended himself, whereupon the plaintiff sued him.
Lord Cave quoted the French saying: ‘cet animal est tres mechant; quand on . .
CitedHargreaves v Bretherton 1959
The Plaintiff pleaded that the First Defendant police officer had falsely and maliciously and without justification or excuse committed perjury at the Plaintiff’s trial on charges of criminal offences and that as a result the Plaintiff had been . .
CitedQuinn v Leathem HL 5-Aug-1901
Unlawful Means Conspiracy has two forms
Quinn was treasurer of a Belfast butchers’ association. Leathem, who traded as a butcher, employed some non-union men, although when the union made difficulties he asked for them to be admitted to the union, and offered to pay their dues. The union . .
CitedDouglas and others v Hello! Ltd and others; similar HL 2-May-2007
In Douglas, the claimants said that the defendants had interfered with their contract to provide exclusive photographs of their wedding to a competing magazine, by arranging for a third party to infiltrate and take and sell unauthorised photographs. . .
CitedSnook v London and West Riding Investments Ltd CA 1967
Sham requires common intent to create other result
The court considered a claim by a hire-purchase company for the return of a vehicle. The bailee said the agreement was a sham.
Held: The word ‘sham’ should only be used to describe an act or document where the parties have a common intention . .
CitedOptigen Ltd, Fulcrum Electronics Ltd, Bond House Systems Ltd v Commissioners of Customs and Excise ECJ 12-Jan-2006
ECJ Sixth VAT Directive – Article 2(1), Article 4(1) and (2) and Article 5(1) – Deduction of input tax – Economic activity – Taxable person acting as such – Supply of goods – Transaction forming part of a chain . .
CitedMogul Steamship Company Limited v McGregor Gow and Co QBD 10-Aug-1885
Ship owners formed themselves into an association to protect their trading interests which then caused damage to rival ship owners. The plaintiffs complained about being kept out of the conference of shipowners trading between China and London.
CitedYukong Lines Ltd v Rendsburg Investments Corporation and Others (No 2) QBD 23-Sep-1997
Repudiation by charterer: Funds were transferred by a charterer’s ‘alter ego’ to another company controlled by him with intent to defeat owner’s claim – whether ‘alter ego’ acting as undisclosed principal of charterer – whether permissible to pierce . .
CitedMbasogo, President of the State of Equatorial Guinea and Another v Logo Ltd and others CA 23-Oct-2006
Foreign Public Law Not Enforceable Here
The claimant alleged a conspiracy by the defendants for his overthrow by means of a private coup d’etat. The defendants denied that the court had jurisdiction. The claimants appealed dismissal of their claim to damages.
Held: The claims were . .
CitedRegina v Clarence CCCR 20-Nov-1888
The defendant knew that he had gonorrhea. He had intercourse with his wife, and infected her. She would not have consented had she known. He appealed his convictions for assault and causing grievous bodily harm.
Held: ‘The question in this . .
CitedCutler v Wandsworth Stadium Ltd HL 1949
The Act required the occupier of a licensed racetrack to take all steps necessary to secure that, so long as a totalisator was being lawfully operated on the track, there was available for bookmakers space on the track where they could conveniently . .
CitedRookes v Barnard (No 1) HL 21-Jan-1964
The court set down the conditions for the award of exemplary damages. There are two categories. The first is where there has been oppressive or arbitrary conduct by a defendant. Cases in the second category are those in which the defendant’s conduct . .
CitedDaily Mirror Newspapers Ltd v Gardner CA 1968
The Federation of Retail Newsagents decided to boycott the Daily Mirror for a week to persuade its publishers to pay higher margins, and advised them accordingly. The publishers sought an injunction saying the Federation was procuring a breach of . .
DoubtedMichaels and Michaels v Taylor Woodrow Developments Ltd, etc ChD 19-Apr-2000
The respondents sought to strike out the claim for conspiracy and failure to comply with the Act. The respondent was landlord of premises occupied by the claimants. They had served a notice under the Act of their intention to sell.
Held: The . .
CitedSurzur Overseas Ltd v Koros and others CA 25-Feb-1999
A defendant to a worldwide Mareva injunction had failed to give full disclosure of all his assets in an affidavit filed with the court. False evidence as to sale of the assets in question was later manufactured and placed before the court. The . .
CitedInland Revenue Commissioners v Goldblatt 1972
In a winding up case, the Commissioners can if necessary proceed against a receiver for misfeasance. . .
CitedEx parte Island Records CA 1978
An injunction is available to any person who can show that a private right or interest has been interfered with by a criminal act. . .
CitedRCA Corporation v Pollard CA 1982
The illegal activities of bootleggers who had made unauthorised recordings of concerts, diminished the profitability of contracts granting to the plaintiffs the exclusive right to exploit recordings by Elvis Presley.
Held: The defendant’s . .
CitedW T Ramsay Ltd v Inland Revenue Commissioners HL 12-Mar-1981
The taxpayers used schemes to create allowable losses, and now appealed assessment to tax. The schemes involved a series of transactions none of which were a sham, but which had the effect of cancelling each other out.
Held: If the true nature . .
CitedOren, Tiny Love Limited v Red Box Toy Factory Limited, Red Box Toy (UK) Limited, Index Limited, Martin Yaffe International Limited, Argos Distributors Limited PatC 1-Feb-1999
One plaintiff was the exclusive licensee of a registered design. The defendant sold articles alleged to infringe the design right. The registered owner had a statutory right to sue for infringement. But the question was whether the licensee could . .
CitedRegina v Mavji CACD 1987
The court considered the offence of cheating the public revenue.
Held: Cheating might include any form of fraudulent conduct which resulted in diverting money from the revenue and depriving the revenue of money to which it was entitled. . .
CitedMetall und Rohstoff AG v Donaldson Lufkin and Jenrette Inc CA 1990
There was a complicated commercial dispute involving allegations of conspiracy. A claim by the plaintiffs for inducing or procuring a breach of contract would have been statute-barred in New York.
Held: Slade LJ said: ‘The judge’s approach to . .
CitedRex v Bainbridge 1782
. .
CitedRegina v Hudson 1956
To avoid the payment of tax by positive false representations constitutes a fraud on the Crown and a fraud on the public. It is a common law offence and is indictable as such. . .
CitedWoolwich Equitable Building Society v Inland Revenue Commissioners (2) HL 20-Jul-1992
The society had set out to assert that regulations were unlawful in creating a double taxation. It paid money on account of the tax demanded. It won and recovered the sums paid, but the revenue refused to pay any interest accrued on the sums paid. . .
CitedDeutsche Morgan Grenfell Group Plc v Inland Revenue and Another HL 25-Oct-2006
The tax payer had overpaid Advance Corporation Tax under an error of law. It sought repayment. The revenue contended that the claim was time barred.
Held: The claim was in restitution, and the limitation period began to run from the date when . .
CitedCommissioners of Customs and Excise, Attorney General v Federation of Technological Industries and Others ECJ 11-May-2006
ECJ (Taxation) C-197/03 Sixth VAT Directive – Articles 21(3) and 22(8) – National measures to combat fraud – Joint and several liability for the payment of VAT – Provision of security for VAT payable by another . .
CitedHenderson v Merrett Syndicates Ltd HL 25-Jul-1994
Lloyds Agents Owe Care Duty to Member; no Contract
Managing agents conducted the financial affairs of the Lloyds Names belonging to the syndicates under their charge. It was alleged that they managed these affairs with a lack of due careleading to enormous losses.
Held: The assumption of . .
CitedMarcic v Thames Water Utilities Limited HL 4-Dec-2003
The claimant’s house was regularly flooded by waters including also foul sewage from the respondent’s neighbouring premises. He sought damages and an injunction. The defendants sought to restrict the claimant to his statutory rights.
Held: The . .
CitedJohnson v Unisys Ltd HL 23-Mar-2001
The claimant contended for a common law remedy covering the same ground as the statutory right available to him under the Employment Rights Act 1996 through the Employment Tribunal system.
Held: The statutory system for compensation for unfair . .
CitedShiloh Spinners Ltd v Harding HL 13-Dec-1972
A right of re-entry had been reserved in the lease on the assignment (and not on the initial grant) of a term of years in order to reinforce covenants (to support, fence and repair) which were taken for the benefit of other retained land of the . .
CitedMacNiven (Inspector of Taxes) v Westmoreland Investments Ltd HL 15-Feb-2001
The fact that a payment of interest was made only to create a tax advantage did not prevent its being properly claimed. Interest was paid for the purposes of setting it against tax, when the debt was discharged. A company with substantial losses had . .

Cited by:
CitedChild Poverty Action Group, Regina (on the Application of) v Secretary Of State for Work and Pensions CA 14-Oct-2009
CPAG appealed against a refusal of a declaration that the respondent could use only the 1992 Act to recover overpayment of benefits where there had been neither misrepresentation nor non-disclosure.
Held: The appeal succeeded, and the court . .
CitedDigicel (St Lucia) Ltd and Others v Cable and Wireless Plc and Others ChD 15-Apr-2010
The claimants alleged breaches of legislation by members of the group of companies named as defendants giving rise to claims in conspiracy to injure by unlawful means. In effect they had been denied the opportunity to make interconnections with . .
CitedMobilx Ltd and Others v HM Revenue and Customs; Blue Sphere Global Ltd v Same and similar CA 12-May-2010
Each company sought repayment of input VAT. HMRC refused, saying that the transactions were the end-product of a fraud on it, and that even if the taxpayer did not know that a fraud was involved, it should have been aware that one was and acted . .
CitedThe Child Poverty Action Group v Secretary of State for Work and Pensions SC 8-Dec-2010
The Action Group had obtained a declaration that, where an overpayment of benefits had arisen due to a miscalculation by the officers of the Department, any process of recovering the overpayment must be by the Act, and that the Department could not . .
AppliedThe Racing Partnership Ltd and Others v Done Brothers (Cash Betting) Ltd and Others ChD 8-May-2019
Actions concerning the alleged infringement of the claimants’ rights in respect of data relating to horseracing. The claimant had provided horse race betting odds (Betting shows) to race course owners. A rival company had provided similar data to . .
CitedThe Racing Partnership Ltd and Others v Sports Information Services Ltd CA 9-Oct-2020
The court looked at the limitations: (1) the legal protection of sports data and other information which is not subject to traditional intellectual property rights; (2) the scope of an action under the equitable doctrine of breach of confidence or . .
CitedJSC BTA Bank v Khrapunov SC 21-Mar-2018
A had been chairman of the claimant bank. After removal, A fled to the UK, obtaining asylum. The bank then claimed embezzlement, and was sentenced for contempt after failing to disclose assets when ordered, but fled the UK. The Appellant, K, was A’s . .

Lists of cited by and citing cases may be incomplete.

VAT, Torts – Other, Customs and Excise, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.266167

Sir Francis Burdett, Bart v The Right Hon Charles Abbot: KBD 1811

Speaker’s Powers to Arrest House Members

To an action of trespass against the Speaker of the House of Commons for forcibly, and, with the assistance of armed soldiers, breaking into the messuage of the plaintiff (the outer door being shut and fastened,) and arresting him there, and taking him to the Tower of London, and imprisoning him there; it is a legal justification and bar to plead that a Parliament was held, which was sitting during the period of the trespasses complained of; that the plaintiff was a member of the House of Commons; and that the House having resolved ‘that a certain letter, and e. in Cobbett’s Weekly Register, was a libellous and scandalous paper, reflecting on the just rights and privileges of the House, and that the plaintiff, who had admitted that the said letter, and co. was printed by his authority, had been thereby guilty of a breach of the privileges of that House ;’ and having ordered that for his said offence he should be committed to the Tower, and that the Speaker should issue his warrant accordingly ; the defendant, as Speaker, in execution of the said order, issued his warrant to the serjeant at arms, to whom the execution of such warrant belonged, to arrest the plaintiff and commit him to the custody of the lieutenant of the Tower; and issued another warrant to the lieutenant of the Tower to receive and detain the plaintiff in custody during the pleasure of the House ; by virtue of which first warrant the serjeant at arms went to the messuage of the plaintiff, where he then was, to execute it ; and because the outer door was fastened, and he could not enter, after audible notification of his purpose, and demand made of admission, he, by the assistance of the said soldiers, broke and entered the plaintiff’s messuage, and arrested and conveyed him to the Tower, where he was received and detained in custody under the other warrant, by the lieutenant of the Tower.

(1811) 14 East 1, [1811] EngR 83, (1811) 104 ER 501
Commonlii
England and Wales
Cited by:
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
Appeal fromBurdett, Bart v The Right Honourable Charles Abbot CA 22-Apr-1812
. .
At Kings BenchBurdett (Bart) v Abbot (Speaker, House of Commons); And Burdett (Bart) Colman (Sergeant At Arms) PC 2-Jul-1817
To an action of trespass against the Speaker of the House of Commons forcibly and with the assistance of armed soldiers, breaking into the messuage of the Plainttiff (the outer door being shut and fastened), and arresting him there, and taking him . .
CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Torts – Other

Leading Case

Updated: 09 November 2021; Ref: scu.199235

In re Racal Communications Ltd; In Re a Company: HL 3 Jul 1980

Court of Appeal’s powers limited to those Given

The jurisdiction of the Court of Appeal is wholly statutory; it is appellate only. The court has no original jurisdiction. It has no jurisdiction itself to entertain any original application for judicial review; it has appellate jurisdiction over judgments and orders of the High Court made by that court on applications for judicial review: ‘There is in my view, however, also an obvious distinction between jurisdiction conferred by a statute on a court of law of limited jurisdiction to decide a defined question finally and conclusively or unappealable, and a similar jurisdiction conferred on the High Court or a judge of the High Court acting in his judicial capacity. The High Court is not a court of limited jurisdiction and its constitutional role includes the interpretation of written laws. There is thus no room for the inference that Parliament did not intend the High Court or the judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to construe the words of the statute by which the question submitted to his decision was defined. There is simply no room for error going to his jurisdiction, nor, as is conceded by counsel for the respondent, is there any room for judicial review. Judicial review is available as a remedy for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by judges of the High Court acting in their capacity as such can be corrected only by means of appeal to an appellate court; and if, as in the instant case, the statute provides that the judge’s decision shall not be appealable, they cannot be corrected at all.’
Lord Diplock said: ‘The break-through made by Anisminic . . was that, as respects administrative tribunals and authorities, the old distinction between errors of law that went to jurisdiction and errors of law that did not, was for practical purposes abolished. Any error of law that could be shown to have been made by them in the course of reaching their decision on matters of fact or of administrative policy would result in their having asked themselves the wrong question with the result that the decision they reached would be a nullity.’ But there was: ‘no similar presumption that where a decision-making power is conferred by statute upon a court of law, Parliament did not intend to confer upon it power to decide questions of law as well as questions of fact. Whether it did or not and, in the case of inferior courts, what limits are imposed on the kinds of questions of law they are empowered to decide, depends upon the construction of the statute unencumbered by any such presumption. In the case of inferior courts where the decision of the court is made final and conclusive by the statute, this may involve the survival of those subtle distinctions formerly drawn between errors of law which go to jurisdiction and errors of law which do not that did so much to confuse English administrative law before Anisminic . . ; but upon any application for judicial review of a decision of an inferior court in a matter which involves, as so many do, interrelated questions of law, fact and degree the superior court conducting the review should not be astute to hold that Parliament did not intend the inferior court to have jurisdiction to decide for itself the meaning of ordinary words used in the statute to define the question which it has to decide.’

Lord Diplock, Lord Salmon, Lord Edmund-Davies, Lord Keith of Kinkel, Lord Scarman
[1981] AC 374, [1980] UKHL 5, [1980] 2 All ER 634, [1980] 3 WLR 181
Bailii
Supreme Court Act 1981 15, Companies Act 1948 441
England and Wales
Citing:
CitedRegina v Medical Appeal Tribunal ex parte Gilmore; Re Gilmore’s Application CA 25-Feb-1957
The claimant had received two injuries resulting in his total blindness. He sought an order of certiorari against the respondent who had found only a 20% disability. The tribunal responded that its decision, under the Act was final.
Held: In . .
Majority OverruledPearlman v Keepers and Governors of Harrow School CA 14-Jul-1978
The court considered the finality of decision of a county court judge regarding the interpretation of the phrase ‘structural alteration’ in the 1974 Act. Paragraph 2 (2) of Schedule 8 provided that the determination of the county court judge ‘shall . .
CitedDeighton v Cockle CA 2-Dec-1911
Where, an order haying been obtained for judgment under Order xiv., judgment is not signed until more than twelve months afterwards, the case does not come within Order lxiv., r. 13, and therefore it is not necessary that the notice of intention to . .
CitedAnisminic Ltd v Foreign Compensation Commission HL 17-Dec-1968
There are no degrees of nullity
The plaintiffs had owned mining property in Egypt. Their interests were damaged and or sequestrated and they sought compensation from the Respondent Commission. The plaintiffs brought an action for the declaration rejecting their claims was a . .

Cited by:
CitedKemper Reinsurance Company v The Minister of Finance and others PC 5-May-1998
(Bermuda) An appeal Court did have jurisdiction to hear an appeal against the discharge of leave to apply for certiorari order, since this was outside scope of the rule in Lane v Esdaille.
Lord Hoffmann said: ‘Nevertheless, the limited nature . .
CitedG v Secretary of State for the Home Department (Interim Decision) CA 9-Mar-2004
A certificate had been granted by the Home Secretary that the applicant was suspected of terrorism, and he had accordingly been detained under special procedures. When his case had come before the Special Immigration Appeal Tribunal, they had . .
AppliedWestminster City Council v O’Reilly and others CA 1-Jul-2003
The defendant sought to appeal against a decision of the High Court on a case stated by the Magistrates.
Held: A decision by the High Court on an appeal by way of case stated from the Magistrates was final, and no further appeal lay to the . .
CitedRegina (G) v Immigration Appeal Tribunal; Regina (M) v Immigration Appeal Tribunal Admn 25-Mar-2004
The applicants sought judicial review of the Immigration Appeal Tribunal’s refusal of leave to appeal. The court had to decide whether such a right survived section 101 of the 2001 Act.
Held: The right to have a judicial review could only be . .
CitedSinclair Gardens Investments (Kensington) Ltd, Regina (on the Application of) v The Lands Tribunal CA 8-Nov-2005
The claimant appealed against a refusal of judicial review of a decision of the Lands Tribunal.
Held: A decision of the Lands Tribunal could only be judicially reviewed in exceptional cases where there was either a jurisdictional error or a . .
CitedRegina v Manchester Crown Court ex parte Williams and Simpson 1990
If an application to prefer a Voluntary Bill is successful there is no right of appeal, and nor can the decision be made subject to judicial review. . .
CitedLumba (WL) v Secretary of State for The Home Department SC 23-Mar-2011
The claimants had been detained under the 1971 Act, after completing sentences of imprisonment pending their return to their home countries under deportations recommended by the judges at trial, or chosen by the respondent. They challenged as . .
CitedEvans and Another, Regina (on The Application of) v Attorney General SC 26-Mar-2015
The Attorney General appealed against a decision for the release under the Act and Regulations of letters from HRH The Prince of Wales to various ministers and government departments.
Held: The appeal failed (Majority). The A-G had not been . .
CitedRegina v Hull University Visitor, Ex parte Page; Regina v Lord President of the Privy Council ex Parte Page HL 3-Dec-1992
The decisions of University Visitors are subject to judicial review in that they exercise a public function. English law no longer draws a distinction between jurisdictional errors of law and non-jurisdictional errors of law.
However, the . .
CitedLee v Ashers Baking Company Ltd and Others SC 10-Oct-2018
The court considered whether a power of appeal to the existed.
Held: A power did exist under FETO, and the CANI having mistakenly excluded a power to appeal the Supreme Court could nevertheless hear it. Both appeals were allowed. . .

Lists of cited by and citing cases may be incomplete.

Litigation Practice, Company, Constitutional

Leading Case

Updated: 09 November 2021; Ref: scu.182917

Stockdale v Hansard: 1839

Bailii It is no defence in law to an action for publishing a libel, that defamatory matter is part of a order of the House of Commons, laid before the House, and thereupon became part of the proceedings of the House and which was afterwards, by orders of the House, printed and published by defendant; and that the House of Commons heretofore resolved, declared, and adjudged ‘that the power of publishing such of its reports, votes, and proceedings as it shall deem necessary or conducive to the public interests is an essential incident to the constitutional functions of parliament, more especially to the Commons’ House of Parliament as the representative portion of it.’
On demurrer to a plea suggesting such a defence, a court of law is competent to determine whether or not the House of Commons has such privilege as will support the plea.
Lord Denman CJ said: ‘Our respect and gratitude to the Convention Parliament ought not to blind us to the fact that this sentence of imprisonment was as unjust and tyrannical as any of those of arbitrary power for which they deprived King James of his Crown.’ and ‘Where the subject matter falls within their jurisdiction, no doubt we cannot question their judgment; but we are now enquiring whether the subject matter does fall within the jurisdiction of the House of Commons. It is contended that they can bring it within their jurisdiction by declaring it so. To this claim, as arising from their privileges, I have already stated my answer: it is perfectly clear that none of these Courts could give themselves jurisdiction by adjudging that they enjoy it.’

Lord Denman CJ
(1839) 9 Ad and El 1, [1839] EWHC QB J21, 112 ER 1112, (1839) 9 Ad and Ell 96
Bailii
England and Wales
Citing:
appeal fromStockdale v Hansard And Others 7-Feb-1837
The order of the House of Commons for the publication and sale by certain booksellers of Reports laid before the House, does not exempt the booksellers from answering in an action of libel any individual injured by defamatory matters in such Reports . .
appeal fromStockdale v Hansard And Others 7-Feb-1837
The House of Commons, in the years 1836 and 1836, made resolutions that parliamentary papers and reports, printed for the use of the house, should be publicly sold by their printer ; and afterwards a report from the Inspectors of Prisons was ordered . .
CitedEntick v Carrington KBD 1765
The Property of Every Man is Sacred
The King’s Messengers entered the plaintiff’s house and seized his papers under a warrant issued by the Secretary of State, a government minister.
Held: The common law does not recognise interests of state as a justification for allowing what . .

Cited by:
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
CitedChaytor and Others, Regina v SC 1-Dec-2010
The defendants faced trial on charges of false accounting in connection in different ways with their expenses claims whilst serving as members of the House of Commons. They appealed against rejection of their assertion that the court had no . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Defamation

Leading Case

Updated: 09 November 2021; Ref: scu.199236

Regina v Morley; Regina v Chaytor; Regina v Devine; Regina v Lord Hanningfield: CC 11 Jun 2010

(Southwark Crown Court) The defendants faced charges of false accounting in connection with expense claims as members of parliament, three of the House of Commons and one of the Lords. Each claimed that the matter was covered by Parliamentary Privilege and that a civil court had no jurisdiction to try them.
Held: The claims to privilege failed. Saunders J said: ‘Although Article 9 of the Bill of Rights 1689 is the best-known example of parliamentary privilege and has enshrined in Statute the privilege of freedom of speech in Parliament, it is part only of a much broader privilege which is found in the common law. Article 9 provides that ‘the freedom of speech and debates or proceedings in Parliament ought not to be impeached or questioned in any court or place out of Parliament’.’
However: ‘in the context of criminal charges Parliamentary privilege should be narrowly construed. The principle that all men are equal before the law is an important one and should be observed unless there is good reason why it should not apply. To do otherwise would risk bringing both the Courts and Parliament into disrepute and diminish confidence in the criminal justice system. Parliament does not have an effective procedure for investigating and deciding whether a member is guilty or not guilty of criminal charge’
It was significant that ‘neither House has sought to assert that these proceedings come within the jurisdiction of Parliament. This is of particular significance as the privilege, if it exists, belongs to Parliament and not the individual members.’ and ‘Wherever a line is drawn there may be anomalies. The fact that it is the submission of the claim form that sets the machinery of Parliament in motion does not make it part of that machinery just as putting a coin in a slot machine does not make the coin part of the mechanism of the slot machine just because it initiates the process.’
He continued: ‘The claiming of expenses is an individual activity for the benefit of the individual and any benefit to Parliament as a whole is not a direct one. Further it is not part of a Member’s duty to claim his expenses or allowances. He could not be criticised for failing to carry out his duties as an MP if he did not claim his allowances and his expenses. It would not be an interference with the workings of Parliament or obstruct the carrying out of their business. None of the justifications for the existence of privilege would seem to apply to the submission of the form. In my judgment it does not come within the scope of the ‘exclusive jurisdiction of Parliament’ on any sensible construction of that privilege.’

Saunders J
[2010] EW Misc 9 (EWCC)
Bailii, Judiciary
Bill of Rights 1689 9
England and Wales
Citing:
CitedBradlaugh v Gossett 9-Feb-1884
Bradlaugh, though duly elected Member for a Borough, was refused by the Speaker to administer oath and was excluded from the House by the serjeant at arms. B challenged the action.
Held: The matter related to the internal management of the . .
CitedPrebble v Television New Zealand Ltd PC 27-Jun-1994
(New Zealand) The plaintiff, an MP, pursued a defamation case. The defendant wished to argue for the truth of what was said, and sought to base his argument on things said in Parliament. The plaintiff responded that this would be a breach of . .
CitedOffice of Government Commerce v Information Commissioner and Another Admn 11-Apr-2008
The Office appealed against decisions ordering it to release information about the gateway reviews for the proposed identity card system, claiming a qualified exemption from disclosure under the 2000 Act.
Held: The decision was set aside for . .
CitedMcGuinness, Re Application for Judicial Review QBNI 3-Oct-1997
The claimant was an MP from Northern Ireland. As an MP he had been required to swear allegiance to the Crown, but he had refused to do so for his belief in an independent Ireland. He challenged the decision of the Speaker of the House to refuse him . .
CitedPepper (Inspector of Taxes) v Hart HL 26-Nov-1992
Reference to Parliamentary Papers behind Statute
The inspector sought to tax the benefits in kind received by teachers at a private school in having their children educated at the school for free. Having agreed this was a taxable emolument, it was argued as to whether the taxable benefit was the . .
CitedAttorney-General of Ceylon v de Livera PC 1963
A member of the House of Representatives was offered 5,000 rupees for writing to the Minister of Lands and Development withdrawing an application previously made to the Minister to acquire an estate. The offeror was found guilty of offering a . .
CitedJennings v Buchanan PC 14-Jul-2004
(New Zealand) (Attorney General of New Zealand intervening) The defendant MP had made a statement in Parliament which attracted parliamentary privilege. In a subsequent newspaper interview, he said ‘he did not resile from his claim’. He defended the . .
CitedRegina v Greenaway CC 25-Jun-1992
(Central Criminal Court) The defendant Member of Parliament had faced charges of accepting bribes in return for advancing the interests of a commercial company.
Held: The charges were dismissed on the request of the prosecution after a . .

Cited by:
Appeal fromChaytor and Others, Regina v CACD 30-Jul-2010
The defendants had been members of the Houses of Commons and of Lords. They faced charges of dishonesty in respect of their expenses claims. They now appealed a finding that they were not subject to the exclusive jurisdiction of Parliament under . .
At Crown CourtChaytor 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 . .
CitedKimathi and Others v Foreign and Commonwealth Office QBD 20-Dec-2017
Parliamentary privilege The claimants sought to have admitted as evidence extracts from Hansard in support of their claim for damages arising from historic claims.
Held: The court set out the authorities and made orders as to each element. . .

Lists of cited by and citing cases may be incomplete.

Constitutional, Crime

Leading Case

Updated: 02 November 2021; Ref: scu.417821

Kernkraftwerke Lippe-Ems GmbH v Hauptzollamt Osnabruck: ECJ 7 Dec 2011

Constitutions Compatibility with EU law

ECJ (Judgment) Reference for a preliminary ruling – Article 267 TFEU – Interlocutory procedure for review of constitutionality – Examination of whether a national law complies with both EU law and with the Constitution of the Member State concerned – Discretion enjoyed by a national court to refer questions to the Court of Justice for a preliminary ruling – National legislation levying a duty on the use of nuclear fuel – Directives 2003/96/EC and 2008/118/EC – Article 107 TFEU – Articles 93 EA, 191 EA and 192 EA

M Ilesic P
[2016] Ch 181, [2016] 2 WLR 369, [2015] WLR(D) 240, [2015] 3 CMLR 41, ECLI:EU:C:2015:354, [2015] EUECJ C-5/14
Bailii, WLRD
TFEU 267
European

Constitutional

Updated: 02 November 2021; Ref: scu.547699

Morgan v Simpson: CA 1974

Voting papers that were invalid as a result of minor administrative errors by officials (and not the voters). Counting the invalid votes would have affected the election outcome.
Held: The election was declared void. Section 37(1) was not available to cure the defects, but rather it was to be used to ask whether the defects had affected the outcome.
Lord Denning MR commented on parliamentary elections conducted more than a century earlier by poll whereby a voter’s name, qualification and vote were recorded in a book open for public inspection, saying: ‘Such was the method of election at common law. It was open. Not by secret ballot. Being open, it was disgraced by abuses of every kind, especially at parliamentary elections. Bribery, corruption, treating, personation, were rampant.’ and ‘An election petition is a serious – and expensive – matter and is not lightly to be set aside.’
Stephenson LJ said: ‘For an election to be conducted substantially in accordance with that law there must be a real election by ballot and no such substantial departure from the procedure laid down by Parliament as to make the ordinary man condemn the election as a sham or a travesty of an election by ballot.’

Lord Denning MR, Stephenson LJ
[1975] 1 QB 151, [1974] 3 All ER 722, [1974] 3 WLR 517
Representation of the People Act 1949 37(1)
England and Wales
Cited by:
CitedEdgell v Glover, Garnett (Returning Officer) QBD 4-Nov-2003
The constituency had adopted an all postal ballot, resulting in a counted majority of one. One ballot paper’s confirmation of identity had not been signed.
Held: The function of the court, exercising its jurisdiction under section 48(1), is . .

Lists of cited by and citing cases may be incomplete.

Elections, Constitutional

Leading Case

Updated: 02 November 2021; Ref: scu.187488